Opinion 17-34

April 28, 2017

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.

Dear :

         This responds to your inquiry (17-34) asking whether it is ethically permissible to send, in response to a defendant’s guilty plea by mail to a Vehicle & Traffic Law charge, a letter advising the defendant what his/her sentence will be if the court accepts the plea.¹ In addition, the letter would advise defendants that if they wish to change their plea to not guilty, they should appear in court at a specified date and time.

         The Committee recently advised that a judge may not send a form letter to defendants who plead guilty by mail advising them that they may change their plea to “not guilty” and either appear in court for a pre-trial conference or negotiate a reduction in charges with the local prosecutor. A judge should not be in the position of advocating a negotiated plea or in any way indicating a predisposition in the matter. As the Committee stated in Opinion 16-09:

Plainly, this letter, as drafted, appears to compromise the impartiality of the judiciary because, rather than advising a defendant of all options available to him/her..., it rejects the option the defendant has already chosen and demonstrates a bias against accepting mail-in pleas.

         Accordingly, you may not mail this proposed letter to defendants in response to a mail-in plea of guilty, as it is inconsistent with the independence and impartiality of the judiciary (see 22 NYCRR 100.2[A]) .

         Enclosed, for your convenience, is Opinion 16-09 which addresses 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

Enc.

______________________

         ¹ The sentence would include the amount of the fine, the amount of time the defendant’s license would be suspended, the number of points assessed and the amount of the risk assessment fee.