Joint Opinion 10-32/10-48

March 10-11, 2010

Digest:         A judge may consent to a plea agreement that includes a defendant’s participation in a district attorney’s traffic ticket diversion program if the plea agreement is fair and appropriate with respect to the particular defendant and if the traffic ticket diversion program is legal.

Rules:          Judiciary Law §212[2][l]; 22 NYCRR 100.2; 100.2(A); 101.1; Opinion 07-22.

Opinion:

         A county magistrates’ association and an administrative judge both ask whether it is ethically permissible for judges to consent to plea agreements that include a defendant’s participation in similar traffic ticket diversion programs recently introduced by two different district attorneys’ offices.

         In both programs, defendants who are charged with certain violations of the Vehicle and Traffic Law may enter into a plea agreement to dispose of their tickets by paying a $200 fee to the District Attorney’s office and attending a defensive or safe driving course. In both programs, the District Attorney seeks an adjournment of the traffic ticket to permit the defendant to complete the driving course. Once the defendant completes the program, the District Attorney either asks the court to dismiss the ticket or advises the court that he/she will not prosecute the ticket. In one program, the District Attorney’s office retains a portion of the fees collected and distributes the balance to the County Treasurer’s General Fund and the Town’s General Fund. In the other program, the District Attorney pays the court $5 for each case that is disposed of pursuant to the program. In both programs, the District Attorney seeks an adjournment of the traffic ticket to permit the defendant to complete the driving course.

         It appears that these programs will have a financial impact on the state fiscal and local government revenues. A defendant who participates in a traffic diversion program will not be sentenced to pay a fine that would accrue to the State. Rather, the District Attorneys’ offices and local governments will share the fee a defendant pays to participate in the program. Under these circumstances, both the County Magistrates Association and the Administrative Judge question whether it is appropriate for town and village justices to consent to a defendant’s participation in the program. In addition, the Administrative Judge questions the propriety of the court participating in a program where a district attorneys’ office unilaterally diverts cases from a legislatively-established criminal process; applies its own standards for participation in an alternative penal program; and eliminates the need for a defendant to appear in court.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, and must 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 Opinion 07-22, a judge asked the Committee whether he/she could consent to plea agreements proposed by a prosecutor who was appointed by the town board to prosecute certain offenses and to enter into plea agreements that will result in fine monies accruing to the Town instead of to the State. The Committee advised (Opinion 07-22): 

. . . if the Town Justice concludes these plea agreements violate the criminal procedure law or other statutory or decisional law, or, if, by entering such an agreement, either attorney would breach the [former] code of professional responsibility, the judge, as a matter of judicial ethics, may not approve the agreement. Nor may a judge consider, as a factor in evaluating a particular agreement, whether the proceeds of an otherwise fair and lawful traffic fine, accrue to the town versus state treasury, assuming either is legally authorized to receive revenue from traffic fines.

And, in response to a concern that well-informed attorneys and judges have publicly objected to the plea agreements that were the subject of Opinion 07-22, contending that they are inappropriate in all circumstances, and the fact that the New York State Commission on Judicial Conduct, in its 1992 Annual Report (p.18), criticized town and village justices “who routinely ‘reduce’ V&T charges to local violations for the purpose of diverting fine monies to the court’s locality,” the Committee further advised that (Opinion 07-22):

. . . in the absence of a statute, court decision, rule of judicial conduct, or attorney ethics principle which specifically prohibits the practice, and assuming the town justice neither encourages, suggests, nor requests such plea arrangements, we respectfully disagree with the contrary conclusion the Commission and others have reached.

         The same can be said in response to the present inquiry. If the traffic ticket diversion programs described by the inquirers do not violate a statute or case law, and a plea agreement is fair to and appropriate for a particular defendant, then a judge may consent to the defendant’s participation in the program as part of a plea agreement.

         Of course, whether the programs that are the subject of these inquiries or the district attorneys’ conduct in implementing them are legal are not questions to which the Committee has the authority to respond, as the Committee is only authorized to issue advisory opinions concerning issues of ethical conduct or proper execution of judicial duties (see Judiciary Law §212[2][l]; 22 NYCRR 101.1). Thus, this committee may not resolve issues of law.