Opinion 16-92

July 26, 2016

Dear :

         This responds to your inquiry (16-92) asking if it is ethically permissible to participate in the District Attorney’s traffic diversion program by 1) adjourning a defendant’s case, for 60 days at the DA’s request, to allow the defendant to participate in the program and then 2) dismissing the charges at the DA’s request after the defendant has successfully completed the program. Defendants are charged a fee to participate in the diversion program, and you are concerned the fee may violate Vehicle & Traffic Law § 1804.

         The Committee has consistently advised that if a diversion program does 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 the plea agreement. However, whether charging a fee to participate in the diversion program violates the Vehicle & Traffic Law is a legal question which is beyond the Committee’s jurisdiction (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

         If you conclude, in good faith, the diversion program is legal, then you may participate in it as described to the extent legally appropriate. Conversely, if you conclude the program is illegal, then you may not voluntarily participate in it. Thus, you should not adjourn a case specifically “to allow the defendant to participate in” a diversion program you believe is illegal and should not approve a plea agreement that requires participation in the program.

         Enclosed, for your convenience are Opinions 15-34; 12-68; 10-32/10-48; 09-105; and 07-22 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.