Joint Opinion 10-170/11-03

January 27, 2011

Digest:        Whether a judge may permit a lay complainant to prosecute an alleged criminal violation is a question of law which is beyond this Committee’s jurisdiction. If a judge determines that the district attorney’s implicit or explicit delegation of authority to prosecute a particular matter is not lawful, then the judge should decline to preside over such matters. But, if a judge determines that such delegation is lawful, then the judge may preside in such matters, although the judge must remain fair and impartial and may not provide either side with guidance on procedural or substantive issues.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3; 100.3(B)(1); 100.3(B)(4); 100.3(B)(7); 100.3(E)(1); 22 NYCRR 101.1; Opinions 09-84; 07-29; 96-132 (Vol. XV).

Opinion: 

         Two town justices ask how to proceed when lay complainants file complaints regarding alleged criminal violations, and the District Attorney declines to either prosecute the matter him/herself or to designate another prosecutor to do so. In Inquiry 10-170, the judge states that the district attorney “has refused to prosecute violation offenses filed with the Court unless they involve a ‘family’ or ‘school’ offense” and has concluded that the district attorney cannot lawfully delegate the authority to prosecute offenses to a private attorney who represents the complainant. In Inquiry 11-03, the judge states that the district attorney has declined, as a matter of “office policy,” to prosecute a charge of harassment in the second degree (a violation) which is scheduled to come before the judge and further notes that “the arresting officer will not prosecute as he did not witness the alleged harassment.” This judge specifically asks whether he/she may ethically permit a lay complainant to prosecute his/her own criminal complaint and, if so, what guidance the court may give to the complainant about procedural issues. Both judges are concerned about enforcement of the complainants’ rights, particularly when the defendant has a right to counsel and may even have experienced counsel defending him/her.

         A judge must always act to preserve the integrity and independence of the judiciary (see 22 NYCRR 100.1; 100.2[A]) and must avoid even the appearance of impropriety (see 22 NYCRR 100.2). Also, a judge must perform the duties of judicial office impartially, fairly, and without bias or prejudice against or in favor of any person (see e.g. 22 NYCRR 100.3; 100.3[B][4]; 100.3[B][7]; cf. 22 NYCRR 100.3[E][1] [a judge shall disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned]) and must respect and comply with the law, be faithful to the law and maintain professional competence in the law (see 22 NYCRR 100.2[A]; 100.3[B][1]).

         In the Committee’s view, whether a judge may permit a lay complainant to prosecute his/her own criminal complaint, either with or without a putative delegation of authority from the district attorney, raises a question of law which this Committee has no authority to address (see Judiciary Law §212[2][l]; 22 NYCRR 101.1). Therefore, if a judge determines that the district attorney’s implicit or explicit delegation of authority to prosecute a particular matter is not lawful, then the judge should decline to preside over such matters (see 22 NYCRR 100.2[A]; 100.3[B][1]). But, if a judge concludes that such delegation is lawful, then the judge may preside over such matters (see id.). In so doing, of course, the judge must remain fair and impartial and may not provide either side with guidance on procedural or substantive issues, as it would create an appearance of partiality (see e.g. Opinions 09-84 [judge may not lecture police recruits about proper courtroom decorum and demeanor when testifying in the courtroom]; 07-29 [judge may not provide guidance to local police department regarding the sufficiency of accusatory instruments and other forms they routinely draft and present to the court]; cf. Opinion 96-132 [Vol. XV] [court should not initiate plea agreement because doing so might indicate that judge believes defendant is guilty of some offense or is showing favoritism]).

         If a judge is uncertain about the state of the law in this area, the Committee suggests that the judge request an opinion from the Office of Court Administration’s City, Town and Village Court Resource Center (1-800-232-0630) or any other recognized body charged with providing local courts with legal guidance.