Opinion 21-108

June 17, 2021

Digest:         Whether or not a judge may unilaterally substitute the owner/registrant for the operator of an alleged overweight vehicle is a legal question, which is beyond this Committee’s jurisdiction. Similarly, whether or not any or all of the interested parties need to request or consent to the substitution is also a legal question beyond the jurisdiction of this Committee.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 101.1; Opinion 15-195.

Opinion:

         A judge presiding in a vehicle and traffic part has an overweight vehicle charge pending against the operator/driver of the vehicle. The judge refers to certain sections of the Vehicle and Traffic Law and to an “M” Memo from the Commissioner of Motor Vehicles addressing corporate substitutions, i.e. the court’s authority to substitute as named defendant on the accusatory instrument, the owner/registrant of the alleged overweight vehicle for the originally charged operator of the vehicle (see Commr. of N.Y.S. Dept. of Motor Vehicles, Memo “M” 23 [Oct. 5, 2009]). The judge asks if it is ethically permissible for the judge “to initiate the corporate substitution, when appropriate, or can the court only apply the substitution upon request? And, if only upon request, whose request (People, Defense Attorney, Defendant)?”

We note, initially, that interpretation of the statutes and the proffered guidance of the Department of Motor Vehicles through the “M” memo are legal determinations to be made by the judge.

         Whether or not a judge may unilaterally substitute the owner/registrant for the operator of an alleged overweight vehicle is a legal question, which is beyond our jurisdiction (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]). Similarly, whether any or all of the interested parties need to request or consent to the substitution is also a legal question we cannot address (see id.; see also e.g. Opinion 15-195 fn 1 [“a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law is necessarily acting ethically”]).