Opinion 18-51

May 21, 2018

Dear :

         This responds to your inquiry (18-51) asking a series of questions about off-hours arraignments in the wake of the Hurrell-Harring v State of New York decision (15 NY3d 8 [2010]) and the Stipulation and Order of Settlement. This decision addresses the issue of whether indigent defendants who were arraigned without counsel were denied their constitutional right to counsel.

1)  On notification from an arresting agency that a defendant requires immediate arraignment, is it ethically permissible for the judge to “call attorneys from a list provided by the county 18B program to inquire if the attorney is willing to appear on behalf of the defendant?”

         The Committee has previously advised that it is ethically permissible for a judge to engage in very minimal ex parte communications with a defense attorney in order to determine whether that attorney is available to represent a defendant at arraignment and to provide the attorney with a copy of the accusatory instrument (see Opinion 13-124/13-125/13-128/13-129 [10^th paragraph]; 22 NYCRR 100.3[B][6][e]; cf. CPL 180.10[3][c]).

2)  If so, may the judge then preside over the arraignment once the defendant and the defense attorney are present?

         Provided a judge can be fair and impartial, there is no ethical prohibition against proceeding with an arraignment even if the judge has had a permissible, brief, non-substantive ex parte conversation with counsel about representing the defendant at arraignment (see Opinion 16-43; People v Moreno, 70 NY2d 403 [1987]).

3)  Must notice be given to the District Attorney of an immediate arraignment and, if so, may the judge proceed with the arraignment if the prosecutor declines to appear or is unavailable?

         We have previously advised that a District Attorney must have notice of the court’s arraignment procedure and must be given a reasonable opportunity to be heard. As long as these due process safeguards are met, a judge may proceed with an arraignment if the District Attorney declines to appear or otherwise participate in the proceeding (see Opinion 13-124/13-125/13-128/13-129 [13^th paragraph]; 22 NYCRR 100.3[B][6][d] - [e]).

4)  Does a judge’s effort to effectuate a criminal defendant’s right to counsel at arraignment (or at any other time where the defendant’s civil liberties are impacted) automatically create an impermissible appearance of partiality or otherwise disqualify the judge from presiding in the case?

         The Committee has previously concluded that a judge bears some responsibility in insuring that the “constitutional obligation to provide competent counsel to represent indigent criminal defendants” is met (Opinion 01-100/01/101; see also Opinion 13-124/13-125/13-128/13-129 [12^th paragraph]; cf. CPL 180.10[3] – [5]). Thus, provided the judge follows a routine and standard procedure to solicit counsel for off-hours arraignments, without bias or favoritism (e.g. the judge does not pick and choose which defendants benefit from the procedure and calls attorneys from the county’s provided 18B list without partiality given to any particular attorney), there is no impermissible appearance of impropriety.

5)  May the judge preside over an arraignment if a “good faith effort” is made to find counsel but no attorney is available?

         Whether a judge may preside over an arraignment in which a defendant is not represented by counsel raises primarily legal questions which the Committee is not authorized to answer (see Judiciary Law §212[2][l]; 22 NYCRR 101.1]). However, if a judge acts in conformity with governing law, the judge will not violate the Rules Governing Judicial Conduct (see Opinion 14-01 see also e.g. CPL 180.10[3] – [5]).

6)  May the judge refuse to proceed with an arraignment if a defendant is not represented by counsel during the arraignment?

         Whether a judge may refuse to preside over an arraignment in which a defendant is not represented by counsel raises primarily legal questions which the Committee is not authorized to answer (see Judiciary Law §212[2][l]; 22 NYCRR 101.1]). However, if a judge acts in conformity with governing law, the judge will not violate the Rules Governing Judicial Conduct (see Opinion 14-01 see also e.g. CPL 180.10[5]).

         Enclosed, for your convenience, are Opinions 16-43; 14-01; 13-124/13-125/13-128/13-129; and 01-100/01/101 which address these issues.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.