Opinion 17-104

August 8, 2017

Dear :

         This responds to your inquiry (17-104) asking whether it is ethically permissible for you to hold “off-hours” arraignments in a publicly accessible area of a county jail as part of an initiative to provide counsel to defendants at arraignment. The plan is to hold all off-hour arraignments at a single secure location to facilitate compliance with the Hurrell-Harring mandate.¹

         The Committee has previously advised that it is ethically permissible for a judge to arraign an inmate in a courtroom which is accessible to the public within a maximum security prison, provided there are valid security reasons for doing so and that conducting arraignments at the prison does not violate the law. We have also advised that it is ethically permissible to hold after-hours arraignments in legally permissible locations provided such locations are settings where the judge will be able to maintain order and decorum and the arrangement is not for the convenience of the judge.

         Here, it appears that defendants to be arraigned off-hours at a publicly accessible area of the jail are already incarcerated and the arrangement will facilitate compliance with constitutional mandates. Accordingly, assuming the location comports with legal requirements and has any necessary administrative approvals, we see no ethical impropriety in conducting off-hours arraignments there.

         Enclosed, for your convenience, are Opinions 11-09/11-21; 03-112 and 98-150 which address this issue.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

                                       Appellate Div., First Dep’t (Ret.)

                                       Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice, Supreme Court

                                       Committee Co-Chair

Encls.

________________________

         ¹ In Hurrell-Harring v State of New York (66 AD3d 84, [3d Dep’t 2009], aff’d as modified 15 NY3d 8, 21 [2010]), the Court of Appeals stated that in New York an arraignment is generally a critical stage of a criminal proceeding, and the U.S. Constitution guarantees representation at all critical stages of such proceedings. Accordingly, all defendants arraigned off-hours must be represented by counsel.