Opinion 20-173

October 29, 2020

Digest:         A judge may not advise the police that they would approve a warrant for a higher-level charge.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); Opinions 20-69; 11-124.

Opinion:

         When inspecting arrest warrant applications for sufficiency, the inquiring judge sometimes concludes that the supporting materials would justify a higher category of criminal charge. While the judge recognizes the charging decision is within the discretion of the requesting police agency, the judge asks if it is permissible to advise them that the judge would be willing to approve a warrant for a higher-level charge. The judge would not require the police agency to submit the higher charge. In support of this proposed approach, the judge notes “that if [a judge] finds the warrant application insufficient,” they “can talk to the applicants and explain why.”

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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]). Further, a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

          It is “critically important to protect and preserve both the fact and the appearance of the independence of every judge” (Opinion 11-124). Accordingly, judges “must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (Opinion 20-69 [citations omitted]). Significantly, in Opinion 20-69, we advised that a judge may not ask the prosecuting agency to file a long form information so the judge can, sua sponte, issue a criminal summons or an arrest warrant for a defendant who failed to appear. Indeed, as we explained (id. [citations and footnote omitted]):

sua sponte requesting a long form information to permit a broader exercise of the court’s enforcement prerogatives would create an appearance of partiality and suggest that the judge is predisposed toward the defendant’s guilt. Likewise, if a judge issues a criminal summons or warrant for arrest after sua sponte requesting a long form information, the court creates the impression that it is assisting the prosecution in its enforcement efforts. These activities do not comport with the high standards for integrity and impartiality New York’s rules require of its judges.

         Here, too, we conclude this judge may not advise the police that the judge would approve a warrant for a higher-level charge, as such discussion is likely to be perceived as a sua sponte request or suggestion that the police revise charging documents based on the judge’s analysis of the information and supporting depositions. While a judge may provide a rationale for rejecting a warrant application, we remind judges not to engage in an extended ex parte discussion concerning the warrant’s sufficiency that could raise a concern regarding the judge’s impartiality.