Opinion 23-123

October 26, 2023

Digest:   A village justice who formerly served as a special prosecutor for Vehicle and Traffic Law matters:
(1) May preside in matters where the village justice was not involved in any manner during his/her prior employment as special prosecutor;
(2) May undertake the strictly ministerial duty of depositing and transmitting fine monies in matters where the defendant motorist accepted the special prosecutor’s plea offer and the court approved it, but the payment either has not been made or has not been entered in the court records; and
(3) Is otherwise disqualified from all cases in which the judge made a plea offer to the defendant motorist during his/her prior employment as special prosecutor, including (a) where the plea offer was rejected by the motorist or the court and (b) where there may be a need to reduce, modify or vacate the conditions of a plea agreement which was previously approved by the judge’s predecessor.

Rules:    Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 21-05; 20-20; 19-46; 15-211; 14-150; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring village justice previously served as the village’s special prosecutor for Vehicle and Traffic Law matters for over six months.[1]  In that role, the inquirer reviewed tickets and sent out written plea offers to defendant motorists, who would then respond directly to the village.  Processing of responses and payments on pleas, if any, were handled exclusively by the village clerk.  The inquiring justice seeks guidance concerning his/her obligations in vehicle and traffic matters, in light of the inquirer’s previous employment.  Specifically, the justice asks if he/she may adjudicate or otherwise handle VTL matters in the following categories and sub-categories:

1. Tickets issued before or during the justice’s term as special prosecutor, where:

A. The motorist entered a guilty plea on the ticket, so it never went to the inquirer as special prosecutor, but either it has not been entered in the court records and/or payment has not been made and might be made during the inquirer’s judicial term;

B. The motorist accepted the inquirer’s plea offer, and a predecessor village justice accepted it, but either it has not been entered in the court records and/or payment has not been made and might be made during the inquirer’s judicial term;

C. The motorist entered a plea of not guilty, but it was never forwarded to the inquirer as special prosecutor;

D. The motorist entered a plea of not guilty and declined the inquirer’s plea offer;

E. The motorist entered a guilty plea in response to the inquirer’s plea offer, but a predecessor village justice rejected the plea agreement; or

F. For some other reason, the inquirer never saw the ticket as special prosecutor.

2. Tickets issued after the judge’s term as special prosecutor ended.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, a judge must disqualify in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  Where the judge knows that the judge previously “served as a lawyer in the matter in controversy,” the judge is permanently disqualified and the disqualification is not subject to remittal (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]).  Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).  If a judge questions his/her ability to remain impartial in a particular matter, he/she must not preside.

          Where a judge is a former prosecutor, the judge is disqualified if he/she played any prosecutorial role in the matter in controversy, whether directly or as a supervisor (see Opinions 20-20 [former district attorney]; 15-211 [former assistant district attorney]).  Even minimal involvement suffices to trigger the prohibition, and remittal is not available (see Opinion 21-05 [judge must not preside in a criminal case that has been transferred to drug treatment court, where the judge entered a single appearance as the prosecutor in the underlying criminal case]). 

          We now apply these principles to the various scenarios described above.

Scenarios 1.D and 1.E

          As for tickets issued before or during the justice’s term as special prosecutor, where (a) the motorist entered a plea of not guilty and declined the inquirer’s plea offer or (b) the motorist entered a guilty plea in response to the inquirer’s plea offer, but a predecessor village justice rejected the plea agreement, the determinative factor is that the judge previously played a role as a prosecutor in the matter by making a plea offer to the defendant motorist.

          The inquiring judge clearly may not preside in these scenarios, because the judge previously participated as an attorney in the matter (see Opinion 21-05).  The problem of prior involvement as an attorney is not cured by the fact that the motorist declined the inquirer’s plea offer and entered a plea of not guilty (as in 1.D) or by the fact that the motorist entered a guilty plea in response to the inquirer’s plea offer, but the court rejected the plea agreement (as in 1.E).

Scenario 1.B

          With respect to tickets issued before or during the justice’s term as special prosecutor, where a plea offer proposed by the inquirer was accepted by the defendant and approved by the court, but payment has not yet been made and/or entered in the court records, it is likewise clear that the judge was involved as an attorney in the matter. 

          In this scenario, however, because the predecessor village justice already decided the case, it is possible that the few matters remaining for the inquirer to address may be ministerial in nature.  In Opinion 19-46, we addressed a judge’s undertaking the strictly ministerial role of depositing and transmitting fine monies when the judge was originally unable to preside over the matter due to a conflict.  We explained that a judge “may be asked to perform a ministerial, rather than a judicial function.  This is so if his/her role is purely formal, so the judge lacks any real discretion to perform it, or if it has no substantial legal effect” (Opinion 19-46).  We concluded that the judge’s proposed role of depositing and transmitting fine monies was strictly ministerial and thus permissible. 

          Here, too, we conclude that the inquiring judge may accept payment and update the court records accordingly, provided that no discretion is involved (see Opinion 19-46). 

          We emphasize that the justice may not reduce, modify or vacate the exact conditions of the plea agreement which was previously approved by the judge’s predecessor (cf. Opinion 14-150 [proposed order submitted by a conflict-inducing attorney, where the conflict arose after judge had issued an oral decision]).  If any change or any discretion is involved in handling these matters, the judge is disqualified due to his/her prior involvement as special prosecutor (see e.g. Opinion 21-05).

Scenarios 1.A, 1.C, and 1.F

          As for tickets issued before or during the justice’s term as special prosecutor, where (a) the motorist entered a guilty plea on the ticket, so it never went to the inquirer as special prosecutor, but either it has not been entered in the court records and/or payment has not been made and might be made during the inquirer’s judicial term, or (b) the motorist entered a plea of not guilty, but it was never forwarded to the inquirer as special prosecutor, or (c) for some other reason, the inquirer never saw the ticket as special prosecutor, the determinative factor is that the ticket never came before the inquirer as a special prosecutor. 

          As the judge thus had no involvement whatsoever in the case as an attorney, we can see no conflict based on the judge’s prior employment and the judge may therefore preside over the matters.  Where the ticket was issued during the judge’s prior tenure as special prosecutor, we suggest (but do not require) that the judge disclose that prior role and explain that he/she had no involvement in the matter.[2]

Scenario 2

          Likewise, with respect to tickets issued after the inquirer’s employment as special prosecutor ended, the judge clearly had no involvement with those tickets as an attorney.  Accordingly, adjudication of such matters is permitted provided no other conflict exists.

Additional Comment

          Finally, we note that the inquiring judge also requests guidance concerning the process that should be followed as to those tickets that he/she may not handle.  As this question is legal/procedural rather than ethical in nature, we cannot respond.

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[1] We understand that the District Attorney delegated authority to prosecute VTL matters to the village, which in turn retained the inquirer for the limited task of making written plea offers on some tickets.  The inquirer was exclusively employed by the village and was not employed or supervised by the DA.

[2] While not mandatory, the suggested disclosure should be feasible where, as here, the judge kept track of every ticket he/she reviewed as special prosecutor.