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Rule: VTL § 1806; 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 20-165; 20-143; 20-99; 20-97; 20-69; 19-168; 19-145; 19-47; 17-34; 09-137; Matter of C., 2017 Ann Rep of NY Commn on Jud Conduct, at 67.

In light of ongoing public health concerns, the inquiring town or village justice would like to adopt a new procedure to limit foot traffic in the courtroom.¹ By way of background, we understand that when defendant motorists plead “not guilty” by mail to traffic infractions, the court directs them to appear for an initial appearance date at which “no testimony shall be taken” (VTL § 1806). Thereafter, “[i]f the motorist requests a trial, the court shall set a trial date on a date subsequent to the date of the initial appearance” (id. [emphasis added]).² We further understand that, in many local courts, the prosecutor regularly meets with defendant motorists at the initial appearance date and offers them an opportunity to enter a plea to a reduced charge in lieu of returning to the court for trial at a later date.

The inquiring justice proposes that the prosecuting agency will give defendant motorists a plea form when they arrive at court for their initial appearance on the traffic calendar after entering a “not guilty” plea by mail. The top of the form says “[MUNICIPALITY NAME] JUSTICE COURT / MEMORANDUM OF TRAFFIC VIOLATION PLEA AGREEMENT.” Directly under that is a space for the name of the defendant motorist.

The next section is labeled “PART I: Plea Offer (to be completed by the [prosecutor] or prosecuting police office).” In this section, the prosecuting agency is to provide details concerning each original charge and the reduced charge, along with the number of points associated with the reduced charge. There is also a space to enter the fine and/or surcharge associated with each charged offense, but this space is marked “Fine/Surcharge (Set by Judge).” Part I is to be signed and dated by the prosecuting agency’s representative.

The following section is “PART II: Guilty Plea (to be completed and signed by the defendant/motorist who wishes to plead guilty).” This section reiterates certain notices from the back of the uniform traffic ticket and also contains waivers of the right to counsel, the right to appear before the judge, and the right to go to trial:

I hereby waive an appearance before a judge and a trial in the Court and agree to plead guilty to the reduced charge(s) as indicated above in PART I. “I understand that a plea of guilty to the reduced charge(s) is equivalent to a conviction after trial. If convicted, I am not only subject to a penalty, but in addition, my license to drive a motor vehicle or motorcycle, and my certificate of registration, if any, are subject to suspension and revocation as prescribed by law.” If I have not been represented by an attorney today, I hereby waive my right to the assistance of an attorney for purposes of entering into this plea agreement.

Part II is to be signed and dated by the defendant motorist and, if applicable, their attorney.

Directly underneath the line for the defendant motorist’s signature, without any visible separation, appear the words “PLEA APPROVED” and a place for the judge’s signature. In the lower right corner, in bold, appear the words “IF THE MOTORIST WISHES TO SPEAK WITH THE JUDGE THE MOTORIST SHOULD MAKE A REQUEST TO A COURT EMPLOYEE OR POLICE OFFICER.”

Once the prosecuting agency completes Part I and the motorist completes Part II, the form would then be given to the judge to either approve or disapprove the plea offer, and if approved, to set the fine/surcharge and sign the form.³ We further understand that, if the defendant motorist decides to enter a plea using this form, then the defendant can pay the fine electronically without ever seeing the judge.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not convey, or permit others to convey, the impression that others are specially positioned to influence him/her (see 22 NYCRR 100.2[C]).

The propriety of any particular guilty plea is primarily a legal question, and we thus recognize from the start that a judge who makes a good-faith legal determination that it is lawful to review and approve negotiated pleas on traffic infractions without any in-person appearance by the defendant motorist may ethically do so (see generally Opinion 20-165). Nonetheless, when considering plea bargaining initiatives in criminal matters, we recommend a judge “avoid any possible appearance of impropriety or coercion” by “satisfy[ing] 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” (Opinion 19-145; accord Opinions 20-143; 19-168).

It is, of course, “critically important to protect and preserve both the fact and the appearance of the independence of every judge. In particular, 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 and internal quotations omitted]). Significantly, a judge “should not be in the position of advocating a negotiated plea or in any way indicating a predisposition in the matter” (Opinion 17-34; accord Opinions 20-99; 20-97).

Here, given that all defendant motorists who would be given the proposed form are physically present at the courthouse and have already entered a plea of “not guilty,” great care must be taken to avoid the appearance that the court is actively encouraging them to change their plea to “guilty” without ever seeing the official who needs to be satisfied that the plea is “understood, voluntary and not coercive” (Matter of C., 2017 Ann Rep of NY Commn on Jud Conduct, at 67).

In light of these principles, we believe the form, as described, is impermissible for three interrelated reasons.

First, the form does not present all the motorist’s options neutrally (see e.g. Opinions 20-99; 20-97). In particular, the option of seeing the judge and requesting a trial date is not given equal weight with the option of entering a negotiated plea. The former option is listed only in the lower right corner of the form, and is substantially less prominent than the proposed waiver of rights in Part II which the defendant is invited to sign.

Second, having the court’s name at the top of a form actively soliciting the defendant motorist’s participation in a plea reduction could create an appearance that the court and the prosecuting agency are aligned in interest and working together to offer the defendant a reduced plea, which is impermissible (see e.g. Opinion 20-99). In context, this appearance is subtly underscored by the apparent designation of “a court employee or police officer” as gatekeepers for a defendant motorist who wishes to speak to the judge.

Third, while we cannot comment on legal questions, we note that the inquiry itself refers to a defendant motorist’s “right to see the judge/to a trial.” If the defendant motorist indeed has a legal right to see the judge and a right to request and obtain a trial date, then the wording of the notice in the lower right corner significantly downplays those rights. The notice suggests only that the defendant motorist may “make a request” to speak with the judge if they wish to do so, and is entirely silent about the motorist’s right (if any) to obtain a trial date on request. This, too, undermines the court’s appearance of neutrality.

We therefore conclude the proposed form is ethically impermissible.

Addendum

Our locally funded justice courts, often termed “the courts closest to the people,” face many pressures in handling their burgeoning caseload. They may, of course, provide a copy of the administratively approved form described in Opinion 20-99 to defendant motorists who plead “not guilty” by mail under VTL § 1806, whether at the courthouse or by mail or by other lawful means. However, we believe it may be helpful for court administrators, working with the Office of Justice Court Support, to develop and circulate a new form, consistent with applicable ethical and legal considerations, for use in these circumstances. Such a form could help protect well-intentioned judges across the state from inadvertent missteps. We note that other potential solutions might be technological in nature (e.g. if defendant motorists could interact directly with the prosecuting agency online to request plea reductions) or even legislative (e.g. if statutory changes could be made to facilitate plea bargaining in matters where defendants mail in “not guilty” pleas pursuant to VTL § 1806).

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¹ Shortly after the inquiry was submitted, many categories of in-person proceedings were temporarily suspended. We nonetheless address the issue, as in-person proceedings will doubtless resume once legally or administratively permitted.

² In Opinion 09-137, we discussed a then-recent amendment to VTL § 1806, which seemed to undercut earlier disciplinary decisions prohibiting judges from sua sponte requiring motorists to appear for a “pre-trial conference” after they mailed in a “not guilty” plea.

³ Thus, when the motorist is given the form by the prosecuting agency, there are no markings in the areas designated for the judge to fill out. This helps avoid any implication of pre-approval by the judge (cf. Opinions 20-165; 19-145) and/or improper delegation of judicial duties (cf. Opinion 19-47).