Opinion 10-113

September 16, 2010

Digest:         A judge who presides in traffic court should not designate the traffic court clerk to advise defendants of any plea agreement the prosecuting assistant district attorney will offer.

Rules:         22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(6); Opinions 08-11; 00-95 (Vol. XIX); 93-58 (Vol. XI).

Opinion:

         A judge who presides in traffic court states that the court routinely sends a standard form letter to defendants who have pled “not guilty” to advise them of their rights and options. One option is to contact the assistant district attorney (ADA) who prosecutes traffic cases in the judge’s court to request a plea agreement. According to the judge, however, the ADA is “reluctant” to communicate with defendants by telephone or by mail, necessitating a defendant’s personal appearance in court to do so. The judge advises that the ADA’s policy hinders the efficient disposition of routine matters and unduly burdens out-of-town defendants. Accordingly, the judge asks whether he/she may amend the court’s form letter to state that defendants may contact the traffic court clerk who will “make the defendant aware of any plea offer made by the [prosecutor] in the case.”

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         The Committee previously has advised that judges must maintain their independence from prosecutors (see Opinions 08-11; 00-95 [Vol. XIX]; 93-58 [Vol. XI]). For example, a court should not implement programs or procedures the district attorney has developed in an attempt to conserve his/her resources (see Opinions 08-11 [a judge should not implement a procedure the district attorney developed to facilitate defendants’ pleas to lesser charges in traffic matters that would eliminate the need for the district attorney or a member of his/her staff to appear in the judge’s court]; 00-95 [Vol. XIX] [a judge should not send forms prepared by the district attorney’s office to traffic defendants requesting certain information from defendants, but should use official Unified Court System forms informing defendants of available options]; 93-58 [Vol. XI] [a judge should not participate in a program devised by the district attorney that directs the manner in which a judge may reduce charges in traffic infraction cases]).

         The Committee similarly concludes in the present inquiry that “participation by the Court in what is essentially the work of the prosecutor’s office” is improper (Opinion 00-95 [Vol. XIX] [a judge should “decline to involve the court in the dissemination of documents by and on behalf of the prosecutor’s office”]). For the traffic court clerk to inform defendants of the prosecutor’s plea offer would impermissibly blur the distinction between the judicial and prosecutorial roles and, at the very least, would create an appearance of impropriety (see 22 NYCRR 100.1; 100.2). The same is true for the proposed changes to the court’s form letter as well. Thus, while well-intentioned and designed to improve the efficiency of court operations, the court should refrain from serving as the intermediary between the prosecution and the defense under the circumstances presented (cf. 22 NYCRR 100.3[B][6] [judge should not initiate, permit or consider ex parte communications, except as expressly permitted]). Accordingly, the judge should not permit the traffic court clerk to serve as the contact for traffic court defendants seeking to learn of any plea agreement the ADA offers.