Opinion 21-106

June 17, 2021

Digest:    Although it is more efficient for a court clerk to request a “long form information” from an arresting agency to support the issuance of an arrest warrant, this is a prosecutorial task and using the court’s staff and database for this purpose is ethically impermissible.

Rules:     22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(B)(7); 100.3(C)(1); Opinions 20-94; 20-69; 19-163; 15-197(A); 14-154; 12-68;10-196; 10-177; 00-95.

Opinion:

         The inquiring full-time city court judge is familiar with Opinion 20-69, and faces a similar situation in that some defendant motorists charged with misdemeanor-level Vehicle and Traffic Law charges on a simplified traffic information repeatedly fail to appear. In the judge’s court, the situation generally arises where a driver is charged by a simplified traffic information with violating an unclassified misdemeanor, such as aggravated unlicensed operation in the 3rd degree (AUO 3rd), and the driver fails on numerous occasions to appear for an arraignment. The prosecutor asks the court to issue an arrest warrant, but does not have the supporting accusatory information. The judge explains that prosecutors generally lack access to the “TraCS” computer program where traffic information including license, registration and jurisdiction court code is electronically entered and ultimately forwarded to both the Division of Motor Vehicles and the Office of Court Administration (OCA) where court staff can gain easy access to the information. As prosecutors are unable to access the same information the court possesses, and in an effort to ensure matters are decided expeditiously on the merits, the judge asks if court staff, at the prosecutor’s request, may send a form letter to the arresting agency requesting they prepare and file a “long form information” with the court. While we understand that the court-provided TraCS system can very easily be used to generate these form letters, we understand such letters are not approved by OCA.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and uphold the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). Thus, judges must “maintain their independence from prosecutors and not participate or assist in what are essentially the prosecutor’s duties” (Opinion 15-197[A]).

         In Opinion 20-69, we said a judge may not sua sponte ask the police or prosecutor to file a long form information in a matter initially prosecuted through a simplified traffic information so the judge could issue a criminal summons or an arrest warrant for a defendant who failed to appear. 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.

         We have frequently emphasized the need to maintain the court’s independence from prosecutors. For example, a judge may not permit the court clerk to help a prosecutor behind-the-scenes “by using the court’s database or other digital platform to enter data on the prosecutor’s plea bargain letters sent to defendant motorists,” even if this semi-automated assistance takes place “with no visible sign of the court’s involvement” (Opinion 20-94). Absent a legal obligation to do so, the court must not serve as an intermediary for the prosecution by holding and/or delivering the prosecution’s discovery packets in order to help the prosecution meet its discovery obligations (see Opinion 19-163) or agreeing to “receive mail addressed to a prosecutor at the court address” (Opinion 10-177). Nor may a court distribute materials prepared by the prosecution to defendants (see e.g. Opinions 10-196 [document entitled “Notice of Immigration Consequences”]; 00-95 [form requesting information about defendant’s criminal record and past traffic convictions]; 12-68 [“informational packet … to inform defendants how they may request a reduction of an alleged Vehicle and Traffic Law violation”]). In Opinion 14-154, a district attorney asked the court to compile “a list of all pending offenses” to help the prosecution comply with its constitutional “obligation to disclose exculpatory materials to defendants” and we likewise said this action was impermissible.

         Here, we understand there may be some efficiency gain if the court submits the request, as the prosecutor apparently lacks access to a database that facilitates requesting the long form information from the ticketing police agency; the argument would be that the court is merely disposing of all judicial matters “promptly, efficiently and fairly” (see 22 NYCRR 100.3[B][7]) and diligently discharging its administrative duties without bias or prejudice (see 22 NYCRR 100.3[C][1]). But as we have consistently stated, providing assistance in the prosecutor’s work can jeopardize public confidence in the court’s independence. Accordingly, the judge must not permit court staff, at the prosecutor’s behest, to request a long form information from the ticket-issuing agency as a precursor to obtaining an arrest warrant for non-appearance on a misdemeanor level VTL offense.

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¹ As nothing in the inquiry suggests that the court is legally required or even administratively directed to submit the request on behalf of prosecutors, we need not address that theoretical possibility.