Opinion 19-41

May 2, 2019

Digest:         A judge may not serve on an advisory committee that makes recommendations to the DA regarding a convicted offender’s application to vacate a prior conviction, even if the judge will not be personally identified in the recommendation and the DA maintains full authority over his/her response to the application before the court.

Rules:          CPL §§ 210.40; 440.10; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); Opinions 19-21; 18-101; 17-88; 16-27; 08-143; 07-115; 02-47; 00-95; 99-07; 96-127.

Opinion:

         A part-time judge asks if he/she may serve on the District Attorney’s advisory committee on vacating convictions. The committee includes at least one defense attorney, representatives from the DA’s office, probation, and police, and a member of the public. The committee only considers applications from non-violent felony offenders who have “maintained a crime-free life for not less than 15 years” after their conviction. The committee measures the applicant’s background, including employment and criminal history, against the criteria of CPL § 210.40 (motion to dismiss in the interest of justice). Two-thirds of the committee must agree to issue a recommendation about the applicant’s suitability to have the prior conviction vacated.¹ The applicant then moves the court under Criminal Procedure Law § 440.10 to vacate the judgment. The DA retains sole discretion whether to accept the committee’s recommendation.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) and must “not make any public comment about a pending or impending proceeding in any court within the United States” (22 NYCRR 100.3[B][8]).

         As a general matter, the Rules Governing Judicial Conduct “prohibit judges from intervening, without official solicitation, in judicial or administrative proceedings involving ... criminal misconduct” (Opinion 02-47). For example, a judge may not write a letter on behalf of a prison inmate who is seeking release on parole (see Opinion 99-07); endorse an individual’s petition for clemency (see Opinions 08-143; 96-127); speak with an executive branch representative about a prisoner’s clemency petition (see Opinion 02-47); recommend that an inmate be paroled or shown clemency (see Opinion 16-27); or suggest or recommend that an inmate apply for clemency (see Opinion 19-21).

         Although here the DA, rather than the applicant or his/her counsel, is officially soliciting the judge’s participation, the committee is nonetheless advising the DA on whether or not to support a particular individual’s application in a pending or impending judicial proceeding to vacate his/her conviction. We have said a judge “should avoid discussing pending or impending matters, avoid demonstrating any predisposition to deciding a specific case in a certain way and avoid any ex parte communications concerning a pending matter” (Opinion 17-88); must maintain his/her independence from prosecutors (see e.g. Opinions 18-101; 00-95); and should not participate or assist in “what is essentially the work of the prosecutor’s office” (Opinion 18-101, quoting Opinion 00-95; see also 07-115).

         We conclude that the judge must not participate in the DA’s advisory committee, even if he/she will not be personally identified in the recommendation and the DA maintains full authority over his/her response to the application before the court. Participation would require the judge to discuss the merits of each individual application with other advisory committee members relating to a pending or impending court case and vote on how the prosecutor should respond. Whatever action the DA takes in court –- whether he/she supports, opposes, or takes no position on the applicant’s motion -- the public will assume the DA considered the committee’s recommendations including the judge’s involvement. Thus, in our view, the judge’s participation would create an appearance of impropriety, as it could potentially undermine public confidence in his/her impartiality; create an impression he/she is commenting on the merits of a case that is, or soon will be, before another a judge; and create an appearance that he/she is impermissibly participating in the work of the DA’s office.

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¹One-third of the members are prosecutors.