Opinion 20-66

March 19, 2020

Digest:         A town justice may permit a court security officer to take defendants’ fingerprints within a secured area of the courthouse.

Rules:          CPL 160.10(1)-(2); 22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 19-20; 98-148; 96-133.

Opinion:

         A town justice asks if he/she may permit the town to adopt a new booking process for defendants. In the revised procedure, court security deputies would take defendants into a secure area of the courthouse for processing. Thus, it will be court security personnel, rather than the town police, who fingerprint defendants. The judge is concerned about a possible appearance of impropriety if court security personnel perform law enforcement functions within the courthouse.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         We have said a town or village court may use court security services provided by local, county or state law enforcement agencies or peace officers (see Opinion 98-148), except where particular circumstances “might lead to the erroneous perception that there is some officially sanctioned relationship between the local police department and the court” (id., citing Opinion 96-133 [town police chief should not serve as town court attendant]). As we explained in Opinion 98-148 (citation omitted):

local police officers and peace officers have traditionally provided court security services in the various courts in which state-employed Unified Court System Uniformed Court Officers do not serve. Indeed, the Judiciary Law requires that the sheriff of each county outside of New York City “must, within a reasonable time before the sitting, in his county, of any term of court, notify, in writing or personally, as many constables or deputy sheriffs of his county, as he deems necessary, to appear and attend upon the term during its sitting.”

         For similar reasons, we believe a judge need not prohibit a court security officer from performing traditional law enforcement functions such as taking a defendant’s fingerprints. As for the location of this conduct, we note that court security officers, like a local police officer or peace officer, may detain a defendant in the courthouse. Significantly, nothing in the inquiry suggests the proposed booking procedure might jeopardize courtroom security, compromise confidentiality, or otherwise interfere with court operations. Thus we conclude this town justice may permit a court security officer to take defendants’ fingerprints within a secured area of the courthouse.

         In reaching this conclusion, we of course assume the judge is satisfied the new booking procedure is legally permissible under the Criminal Procedure Law or other applicable authorities (e.g. CPL 160.10[1]-[2]). Although we cannot comment on any legal questions, “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (Opinion 19-20).