Opinion 12-68

April 26, 2012

Note: While the outcome of this opinion remains unchanged, please see Opinion 17-110 for a discussion of a judge’s ability to initiate, suggest, or facilitate a plea agreement in criminal cases.

Digest:         (1) It is ethically impermissible for a judge or the judge’s court clerk to distribute an informational packet the District Attorney has prepared to inform defendants how they may request a reduction of an alleged Vehicle and Traffic Law violation pending in the judge’s court. (2) Whether a judge must review the affidavit a defendant must submit to the District Attorney when requesting a reduction of an alleged Vehicle and Traffic Law violation before ruling on the proposed plea agreement is a question of law that is beyond the Committee’s jurisdiction.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 101.1; Opinions 10-196; 10-177; 10-113; Joint Opinion 10-32/10-48; Opinions 09-118; 09-105; 07-22; 00-95 (Vol. XIX).

Opinion:

         An administrative judge has provided the Committee with a copy of a District Attorney’s memorandum to local town and village justices which describes a new policy concerning reductions of Vehicle and Traffic Law offenses. According to the memorandum, defendants seeking a reduction in the offense charged must submit an affidavit to the District Attorney’s office that sets forth information the prosecutor requires to determine if a reduction is possible.¹ An information page for defendants and a blank copy of the “Reduction Request Affidavit,” are attached to the memorandum. The District Attorney does not indicate in his/her memorandum how these documents will be distributed to defendants. The inquiring judge asks whether it is permissible for town and village justices to distribute these documents to defendants, and whether they may accept a defendant’s guilty plea to a reduced charge without reviewing the affidavit the defendant submitted to the District Attorney.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee has previously advised that judges must maintain their independence from prosecutors and not participate in “what is essentially the work of the prosecutor’s office” (Opinion 00-95 [Vol. XIX]; accord Opinion 10-113). Thus, it is improper for a judge or court clerk to distribute the prosecutor’s printed materials to defendants or otherwise assist a District Attorney in implementing his/her plea reduction procedures (see Opinions 10-196; 10-177; 10-113; 00-95 [Vol. XIX]).²

         Although judicial approval of a plea agreement, like all other judicial activities, is subject to certain ethical constraints (see generally Joint Opinion 10-32/10-48; Opinions 09-105; 07-22), the Committee has previously advised that it cannot determine whether a particular form or procedure concerning plea agreements is legally sufficient, as doing so calls for a legal opinion that the Committee is not authorized to offer (see Opinion 09-105). In the Committee’s view, whether a judge must review a defendant’s Reduction Request Affidavit before accepting a proposed plea agreement also is a question of law, not ethics, and thus beyond the Committee’s jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

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     ¹ According to the memorandum, the new policy “eliminates the need for a certified DMV abstract, and the attendant cost,” by requiring “a notarized affidavit containing the information which [the District Attorney’s office] traditionally require[s] to make an informed decision on any reduction/plea request.”

     ² As the Committee has previously advised, any informational material a court furnishes to defendants must include information about all available options, including that of communicating with the appropriate prosecutorial office (see Opinions 09-118; 00-95 [Vol. XIX]). The Committee notes that the Office of Court Administration has developed a form letter in accordance with these opinions (see Opinion 09-118).