Opinion 19-145

December 12, 2019

Digest:         A judge may not facilitate a traffic ticket plea reduction program instituted by the District Attorney’s office that would interfere with the court’s exercise of judicial review and discretion.

Rules:          22 NYCRR 100.1; 100.2; 100.2(C); 100.3(B)(7); 100.3(C)(1); Opinions 18-101; 18-49; 16-92; 15-34; 14-12; 13-33; 10-113; 10-32/10-48; 09-160; 08-11; 01-100/01-101; 00-95; 99-82; 93-58.

Opinion:

         Several judges ask if they may facilitate a traffic plea reduction program initiated by the District Attorney’s office which was designed and implemented, without court input, to dispose of traffic cases without any in-court appearances by the District Attorney’s office.¹ Pursuant to the program, the District Attorney determines eligibility for a reduction, directs the ticket holder to choose a defensive driving course ($40 fee), charges a $150 administrative fee, and recommends dismissal of the ticket following submission of the necessary paperwork and payment of the fee. The District Attorney’s office will direct defendants to “notify the court if you decide to participate in this program,” and will then forward the resulting plea offers to the court to keep on file “so that the Court will have an awareness of what offer or resolution has been extended to a traffic defendant” even though the District Attorney’s office will not appear.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]). Also, a judge must dispose of all judicial matters promptly, fairly and efficiently (see 22 NYCRR 100.3[B][7]) and diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C][1]).

         In general, to avoid any possible appearance of impropriety or coercion, a judge should satisfy him/herself that the defendant is aware of all his/her options, including the right to plead not guilty and go to trial before a fair and impartial arbiter (see Opinions 14-12; 13-33; 00-95; 99-82).

         We have repeatedly said “judges must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (Opinion 18-101). For example, court personnel must not distribute the District Attorney’s materials outlining his/her policy respecting plea agreements (see Opinion 08-11, citing Opinion 93-58 [“[a] district attorney is without authority to impose rules of procedure upon a court. To do so is an intrusion upon the independence of the judiciary and violates section 100.1 of the Rules of the Chief Administrator of the Courts”]). Nor may a judge send forms prepared by the District Attorney’s office to traffic defendants (see Opinion 00-95) or include extensive information promoting the District Attorney’s traffic diversion program on the court’s website (see Opinion 18-101). Similar concerns preclude a judge who presides in traffic court from designating the traffic court clerk to advise defendants of any plea agreement the prosecuting assistant district attorney will offer (see Opinion 10-113). As we noted, this procedure “would impermissibly blur the distinction between the judicial and prosecutorial roles and, at the very least, would create an appearance of impropriety” (id.).

         Likewise, judges may not compromise their ethical obligations in order to mitigate the challenges that prosecutors or law enforcement officers face by, for example, allowing the state police to dictate the trial schedule for their convenience in avoiding overtime (see Opinion 09-160). In Opinion 08-11, we noted a judge “should not implement a procedure the District Attorney developed to facilitate defendants’ pleas to lesser charges in traffic matters that would eliminate the need for the District Attorney or a member of his/her staff to appear in the judge’s court.”

         Significantly, the procedure described here – as in prior opinions - seems to be designed to discourage defendants from pleading not guilty and going to trial in order to eliminate court appearances by the District Attorney’s office. Here, the overall effect of the proposed plea reduction program is to limit the court’s review and discretion and ability to ensure the defendant’s rights to a trial or a supporting affidavit and the administration of a fair and equitable disposition, such as a fine, dismissal or discharge, conditional or otherwise.

         We also note that the court has an independent role in deciding whether a particular plea agreement is fair and appropriate with respect to a particular defendant (see e.g. Opinion 10-32/10-48). The court cannot pre-approve participation in the District Attorney’s plea reduction program for all defendants. Indeed, the materials submitted with this inquiry could mislead defendants into thinking their nonrefundable $150 fee will ensure court approval.

         Under these circumstances, the inquiring judges may not facilitate the District Attorney’s program as described.

         Instead, consistent with prior opinions, the judges may continue to inform defendants of all their options, including the right to plead not guilty and go to trial before a fair and impartial arbiter (see Opinions 14-12; 13-33; 00-95; 99-82); advise defendants of any other applicable rights, including their right to counsel (cf. Opinion 01-100/01-101 [“throughout the law runs the theme of judicial responsibility for guaranteeing the right to counsel on behalf of indigent defendants”]; and advise defendants that any plea bargain is subject to the court’s review and approval under applicable law, even if the District Attorney charges them a nonrefundable fee (see Opinions 10-32/10-48; 15-34; 16-92). The judges may also consult with court administrators about how to proceed.

         Finally, we note that the propriety of a particular plea agreement is primarily a legal question, which we cannot address (see e.g. Opinion 10-32/10-48 [judge “may consent to a plea agreement that includes a defendant’s participation in a district attorney’s traffic ticket diversion program if the plea agreement is fair and appropriate with respect to the particular defendant and if the traffic ticket diversion program is legal”]). A judge who makes a good-faith legal determination about the lawfulness of a plea agreement before him/her is necessarily acting ethically (see e.g. Opinion 18-49).

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¹ Indeed, the District Attorney’s office expressly represents that its attorneys who appear in court on other matters will have no information about traffic matters and will not be authorized to make decisions or recommendations about them.