Opinion 21-46

March 11, 2021

Digest:         A judge may accept or reject plea dispositions but, in doing so, may not adopt a broad policy that omits individualized determinations.

Rules:          22 NYCRR 100.2(A); 100.3; Opinions 20-152; 20-01; 19-47; 10-32/10-48; 09-13; 06-174; People v Argentieri, 66 AD3d 558 (1st Dept 2009); People v Mead, 64 Misc3d 1230(A) (Sullivan County Ct 2019); New York Criminal Practice § 12.09 (2020).

Opinion:

         A part-time judge asks if it is ethically permissible to “refuse to accept a disposition to a violation, from a misdemeanor, where the prosecution insists that the matter not be sealed as a condition of the reduction.”

         A judge must respect and comply with the law and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), performing the duties of judicial office impartially (see 22 NYCRR 100.3).

         To the extent the inquiry implicates any disputed legal issues arising under criminal law and procedure, we cannot comment on them (see e.g. Opinions 09-13; 06-174). Nevertheless, we believe a few general principles are relevant to the question presented. First, we understand prosecutors have nearly absolute discretion in determining whether charges are to be preferred, amended or reduced (see e.g. People v Mead, 64 Misc3d 1230(A) [Sullivan County Ct 2019]). Second, a judge, as an exercise of discretion, may accept or reject criminal plea dispositions (see generally People v Argentieri, 66 AD3d 558 [1st Dept 2009]; New York Criminal Practice § 12.09 [2020]; Opinions 20-152; 10-32/10-48) but is required to make good faith, individualized determinations regarding the law and its application (see Opinion 19-47). Third, a judge who makes a good-faith legal determination based on the apparently controlling statutes and/or case law “is necessarily acting ethically” (Opinion 20-01 [citation omitted]). Thus, a judge acting in good faith does not commit an ethical infraction merely because their decision is challenged and reversed on appeal or otherwise found to be legally incorrect.

         Applied here, the judge may, where legally appropriate on the facts presented, exercise their discretion to “refuse to accept a [plea] disposition.” However, the judge should not adopt a broad policy that omits individualized determinations.