Opinion 10-196

March 9 - 10, 2011

Digest:         A judge may ask a criminal defendant any questions that the judge has determined are legally permissible or legally required, including questions about a defendant’s immigration status, but the judge should not accede to the district attorney’s request that the judge conduct plea allocutions in a particular manner and should not distribute notices furnished by the prosecutor to criminal defendants.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(3); 100.3(B)(4); Opinions 10-177; 10-114; 10-113; 09-118; 08-11; 00-95 (Vol. XIX); 99-82 (Vol. XVIII); 96-132 (Vol. XV); 93-58 (Vol. XI); Padilla v Kentucky, 130 SCt 1473 (2010).

Opinion:

         A judge who presides over criminal matters asks whether it is ethically permissible for him/her to comply with the district attorney’s request to “assist us in the preservation of criminal convictions against subsequent litigation” in light of Padilla v Kentucky, 130 SCt 1473 (2010). According to information the judge provided, the district attorney has asked the judge to inquire at the time of taking a criminal defendant’s guilty plea whether the defendant “is a citizen of the United States.” If the defendant indicates that he/she is not a citizen of the United States, the district attorney would like the judge to provide the defendant with a document the district attorney has prepared entitled “Notice of Immigration Consequences” and to then ask the following three questions on the record:

                   1.       Have you received the Notice of Immigration Consequences and reviewed it with your attorney?

                   2.       Have you discussed the immigration consequences of your guilty plea with your attorney?

                   3.       Do you wish to plead guilty regardless of any adverse immigration consequences that may result? – (note: this particular question MUST be asked).

         The district attorney also has asked the judge to give the defendant an opportunity to consult further with defense counsel if the answer to any of these questions is no and to alert the appropriate assistant district attorney if the matter is not disposed of by plea.

         Judges must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), avoid impropriety and its appearance in all their 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]).

         In the Committee’s view, the Rules Governing Judicial Conduct do not prohibit a judge from asking a criminal defendant any legally permissible questions about his/her immigration status, as long as it is done in a manner that is patient, dignified and courteous (see 22 NYCRR 100.3[B][3]) and without bias or prejudice against or in favor of any person (see 22 NYCRR 100.3[B][4]). However, the legal propriety of asking particular questions when taking a guilty plea from a defendant presents a question of law which this Committee has no authority to address (see Judiciary Law §212[2][l]; see also Opinion 10-114).

         Nevertheless, the present inquiry does present an ethics issue since the district attorney has asked the judge to “assist” him/her in “preservation of criminal convictions against subsequent litigation” by following the procedure the District Attorney proposes.

         The Committee has consistently advised judges to decline requests from prosecutors to assist them in performing their prosecutorial duties because assisting the District Attorney would compromise the integrity and independence of the judiciary (see Opinions 10-177; 10-113; 08-11; 00-95 [Vol. XIX]; 99-82 [Vol. XVIII]; 93-58 [Vol. XI]). Nor should a court initiate or facilitate plea agreements (see Opinions 09-118; 96-132 [Vol. XV]) as it would create an appearance of partiality and suggest that the judge is predisposed towards the defendant’s guilt.

         The Committee also has advised that a court should not implement programs or procedures the district attorney has developed (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’s office to appear in the judge’s court]; 00-95 [Vol. XIX] [a judge should not send to traffic defendants forms prepared by the district attorney’s office requesting certain information from defendants, but should use official Unified Court System forms informing defendants of all 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]). In sum, “participation by the Court in what is essentially the work of the prosecutor’s office ... [is] improper” (Opinion 00-95 [Vol. XIX]).

         Accordingly, the Committee concludes that during allocution of a guilty plea, a judge may ask a criminal defendant any questions that the judge has determined are legally permissible or legally required, including questions about the defendant’s immigration status, but should not permit the district attorney to direct the manner in which the judge conducts plea allocutions (see Opinions 08-11 and 93-58 [Vol. XI]). In addition, the judge should not agree to distribute a Notice of Immigration Consequences prepared by the prosecutor on the prosecutor’s behalf (see Opinion 00-95 [Vol. XIX] [holding that a judge should “decline to involve the court in the dissemination of documents by and on behalf of the prosecutor’s office”]).