Opinion 20-69
June 18, 2020
Digest: When misdemeanor-level Vehicle and Traffic Law charges are before a judge on a simplified traffic information, the 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.
Rules: Vehicle and Traffic Law § 226(3); 22 NYCRR 100.1; 100.2; 100.2(A); Opinions 19-163; 19-159; 16-09; 15-50; 13-183; 13-19; 11-124; 10-177; 10-113; 09-118; 00-95; 96-132.
Opinion:
The inquiring town justice observes that defendant motorists facing misdemeanor-level Vehicle and Traffic Law charges sometimes miss multiple court dates despite proper notice. In such instances, the judge would like to issue either a criminal summons or (where appropriate) an arrest warrant. The judge says he/she cannot do so on a simplified traffic information, but only on a long form information.1 Where the matter was initially prosecuted through a simplified traffic information, the judge says applicable law allows him/her to request the long form information and further observes that “a form for such requests is present on the UCS courtroom program and is commonly used by courts.” The judge nonetheless wishes to be sure that doing so will not create an appearance of impropriety. Accordingly, the justice asks if he/she ethically may, on his/her own initiative, request a long form information from the police and/or the prosecutor for a VTL misdemeanor and thereafter charge and issue a criminal summons or arrest warrant for defendants who have missed multiple court dates.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).
We have noted it is “critically important to protect and preserve both the fact and the appearance of the independence of every judge” (Opinion 11-124). 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 00-95; accord e.g. Opinions 19-163; 10-177; 10-113). We also said a judge must not, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant’s case in the other court (see Opinion 15-50). Nor may a judicial association submit an amicus curiae brief in an Article 78 proceeding against an individual judge, as this would involve taking on the “role of advocate” rather than a neutral judicial role (Opinion 19-159).
Here, too, 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 (see Opinions 09-118; 96-132). 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.2 These activities do not comport with the high standards for integrity and impartiality New York’s rules require of its judges.
Therefore, we conclude this judge may not sua sponte request that the police or prosecutor file a long form information in a matter that was initially prosecuted through a simplified traffic information, solely so the judge can sua sponte issue a criminal summons or an arrest warrant for a defendant who failed to appear.
We recognize that the court may have an independent interest in ensuring matters are decided expeditiously on the merits and in ensuring its authority is respected. However, any action the court takes to pursue these interests must still maintain public confidence in judicial independence and impartiality. For example, where governing law permits, we see no reason why a judge may not ethically report defendant motorists to the department of motor vehicles for their licenses to be suspended (see e.g. Vehicle and Traffic Law § 226[3]; Opinions 13-19 [certain defendants had been reported “for failing to pay a fine or failing to appear in court”]; 13-183 [certain defendants had “been ‘scoffed’ … for failure to pay an imposed fine”]). Similarly, where law enforcement or the prosecution provide a long form information and request that the judge issue a criminal summons or arrest warrant, the judge’s decision on that request is a matter of law, rather than ethics.
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1 “A simplified information is a short form accusatory instrument created … to streamline the process of charging persons with traffic infractions [and] misdemeanors relating to traffic” and “is legally sufficient … as the basis for prosecution of the charge contained therein, without any supporting factual allegations” Report of the Advisory Committee on Local Courts at 66 (Jan. 2003). “In contrast, a defendant charged by ‘long form’ information with a misdemeanor is entitled to an accusatory instrument that includes allegations of fact that provide reasonable cause to believe that the defendant committed the offense charged … and non-hearsay allegations that establish, if true, every element of the offense charged and the defendant’s commission thereof” (id.).
2 The 2003 report (see fn 1 supra) says a “defendant charged by simplified information with a misdemeanor … can be prosecuted based solely on hearsay allegations,” while a long form information that does not contain sufficient non-hearsay factual allegations “is subject to dismissal as defective.” If so, a judge’s sua sponte request for a long form information may also be seen as impermissibly defense-oriented, in that it could increase the prosecution’s obligations (cf. Opinion 16-09 [noting that an “impermissibly defense-oriented” letter could, ironically, “also be seen as impermissibly prosecution-oriented”]).