Opinion 23-18

February 2, 2023

Digest:         (1) On the facts presented, it is necessary to amend the proposed form to make clear that any disposition of the matter by way of a plea is subject to court approval.

(2) Once that change is made, there is no ethical impropriety in the proposed simplified form that would neutrally inform defendant motorists who have mailed in “not guilty” pleas on alleged Vehicle and Traffic Law violations of all their options (including the right to retain an attorney; to continue to plead not guilty and have a trial; to plead guilty and waive the right to trial; and the possibility of communicating directly with the prosecutor to negotiate a mutually acceptable disposition subject to the court’s approval).

(3) Inviting the defendant to choose an option and return the form to the court is ethically permissible where doing so (a) does not suggest the court is favoring any option, (b) does not create any appearance that the court is serving as the prosecutor’s intermediary, and (c) is expected to help defendants avoid a wasted trip to the courthouse in light of the prosecutor’s decision not to send any representative to court on alleged Vehicle and Traffic Law infractions unless a trial is scheduled.

(4) Whether a judicial association or an individual judge has the authority to adopt this form is a legal issue the Committee declines to answer.

Rules:          Judiciary Law §§ 212(2)(f), (l), (s); CPL § 10.40; 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 20-206; 20-99; 20-97; 19-168; 18-101; 17-110; 17-34; 16-09; 13-33; 10-113; 09-118; 08-11; 08-02/08-45; 00-95; 99-82; 93-58.

Opinion:

        The inquiring part-time judge is also an officer of a judicial association. In response to the District Attorney’s announced policy changes, the association’s membership would like to revise and simplify the standard form letter sent to defendants who mail in “not guilty” pleas on alleged traffic infractions. The revised letter is intended to present such defendants with a “clear, concise, neutral” statement of all their options.

        The DA’s new policy requires defendants charged with Vehicle and Traffic Law infractions to use an online form if they wish to request a plea bargain. It seems that the DA’s office and the defendant will communicate exclusively online to negotiate the plea. If the defendant accepts the plea offer, the defendant or their counsel will sign the form and mail it to the court for approval and then, if the court approves the plea bargain, for sentencing.¹ If the court schedules the matter for trial, the DA will issue a subpoena directing the ticketing officer to appear, together with a delegation to the police officer of the DA’s duty to prosecute that infraction at trial. Thus, the DA intends that assistant district attorneys “will not appear in court” on Vehicle and Traffic Law infractions.

        According to the inquiry, under existing procedures defendant motorists and their counsel continue to appear in court for a pre-trial conference on charged Vehicle and Traffic Law infractions expecting to have an opportunity to speak with the prosecution regarding a possible plea bargain. Instead, they learn that, in the prosecution’s absence, their only options are to schedule the matter for trial, adjourn the matter so they can seek a plea bargain under the new procedure, or enter a plea of guilty to the original charge(s). The proposed form is intended to address this scenario that, according to the inquiry, treats vehicle and traffic defendants unfairly and with a lack of respect.

The Proposed Form Letter

        At the top of the page, the document states “Pre-Trial Conference Date & Time: _______.” After a greeting, the introductory text states:

“The court has received your not guilty plea regarding an alleged traffic infraction(s). You are presumed innocent until proven guilty and you have the right to retain an attorney to represent you at any stage of the proceedings.

The purpose of this letter is to advise you of your options and to help you avoid unnecessary travel. The court may not provide guidance as to which option to choose, for that you may consult with an attorney, and the court has no preference as to which option you pursue.”

The letter then provides the defendant with three options, with a place for the defendant to mark whatever option is chosen:

“_____ Plead not guilty and request a trial. At the trial the prosecution must prove you committed the alleged offense beyond a reasonable doubt. As noted, you have the right to retain an attorney to assist you, to attend the trial, cross examine any prosecution witness and present evidence or witnesses to support your case.

_____ Continue with your plea of not guilty and seek a plea bargain with the District Attorney’s Office. The court is not authorized to offer a plea to a reduced charge. To pursue a plea bargain, you must contact the DA’s Office at [website] or by phone at [phone number]. If you reach an agreement with the District Attorney, you may return it to the court by mail or bring it to your Pre-Trial Conference date. If you mail your plea agreement to the court prior to the Pre-Trial Conference, it is unlikely you will need to appear.

_____ Plead Guilty to the original charge. By pleading guilty you waive your right to a trial. A Plea of Guilty will subject you to sentencing and a possible fine by the presiding judge for your case.”

         Finally, the document asks the defendant to “indicate which option you choose and return this form to the Court. If you request a trial, you will be issued a new court date.” It then includes a signature line for the defendant to execute and date.

Discussion

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not convey, or permit others to convey, the impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]).

         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). Thus, a judge or court clerk “may not distribute the prosecutor’s printed materials” or informational document to defendants (Opinions 20-97; 17-110) or otherwise act as the prosecution’s “agent or intermediary” (id.). For example, a court may not directly implement the District Attorney’s programs or procedures (see e.g. Opinions 08-11 [program to facilitate pleas to lesser changes in traffic cases without court appearances by the DA’s office]; 93-58 [program purporting to direct how a judge may reduce charges in traffic infraction cases]); or designate the court clerk to advise defendants of the DA’s plea offer (see e.g. Opinion 10-113). Nor may the court simply inform defendants of the prosecuting agency’s procedures for seeking a plea reduction without taking steps to prevent any “appearance of partiality or ... indication that the court is predisposed towards a defendant’s guilt” (Opinion 13-33).

         Our prior opinions recognize that an administrative judge may develop and distribute documents to inform defendants charged with Vehicle and Traffic Law violations and other minor offenses of all their options, including the right to retain an attorney; to plead not guilty and have a trial; to waive the right to trial, and the possibility of communicating directly with the prosecutor to negotiate a mutually acceptable disposition subject to the court’s acceptance (see Opinions 13-33; 08-11; 99-82). As we have noted before, USC DCJA Form 1.0 has been developed and vetted for this purpose (see Opinion 20-99). Thus, we have concluded the court may distribute a court-prepared form impartially listing all options for a defendant motorist (see Opinions 20-99; 13-33; 99-82); and may also include a link to the District Attorney’s website as a convenience to defendant motorists (see Opinions 20-99; 09-118; 18-101).

         Court-proposed documents that fail to advise defendants of all their options, or that indicate a predisposition toward a particular option, are ethically impermissible (see Opinions 16-09 [on receiving a defendant motorist’s guilty plea by mail, a judge may not send a letter advising the defendant that they may change their plea to not guilty and appear]; 17-34 [judge may not send letter rejecting guilty plea and stating that defendant can change plea to not guilty]; 20-206 [impermissible to provide form which does not list all options in a neutral way]).

         With respect to the form letter proposed here, we understand that the chief administrative judge has the power under CPL § 10.40 and Judiciary Law § 212(2)(f) to adopt forms “for the efficient and just administration of the [Criminal Procedure Law]” (Opinions 08-11; 99-82). Whether a judicial association or any individual judge has the authority to create such forms without participation and/or approval from the chief administrative judge or their designee (cf. Judiciary Law § 212[2][s]) is a legal question that we decline to answer (see Opinion 08-02/08-45; Judiciary Law § 212[2][l]).

         We further note that the proposed form does not make clear that any negotiated disposition of the matter by way of a plea is subject to court approval. In our view, a full recitation of the defendant’s option with respect to the plea must include this caveat (see Opinions 20-99 [“Any proposed agreement is subject to approval by the court.”]; 99-82 [one option is to “communicat[e] with the appropriate prosecutorial office concerning a disposition, which proposed disposition will be subject to the approval of the court”]).

         Assuming the proposed form is amended to make clear that any disposition of the matter by way of a plea must be acceptable to the court, and that the form itself is adopted or approved in a manner permitted by law, we deem the form ethically permissible. It clearly sets forth all options available to a defendant who has entered a plea of not guilty on a traffic infraction; does not suggest or imply the court’s preference for any option; and does not implement the DA’s policy or otherwise create an appearance that the court is the DA’s agent, but instead refers the defendant to the DA’s website and phone number. From an ethics perspective, the proposed form maintains judicial independence and impartiality (cf. Opinions 20-99; 99-82).

         On these facts, we conclude it does not create any appearance of impropriety to invite the defendant motorist – who has already entered a plea of “not guilty” by mail - to choose an option and return the form to the court, where doing so (a) does not suggest the court is favoring any option, (b) does not create any appearance that the court is serving as the prosecutor’s intermediary, and (c) is expected to help defendants avoid a wasted trip to the courthouse in light of the prosecutor’s decision not to send any representative to court on Vehicle and Traffic Law infractions matters unless a trial is scheduled.²

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¹ While the court may not serve as the prosecutor’s intermediary, we have said that “[w]hen the prosecutor gives the defendant a written plea offer and then declines to appear in court, the judge may accept the stipulated plea offer if he/she concludes it is legally appropriate” (Opinion 19-168).

² A note will be placed on Opinions 20-99, 17-110, 16-09, and 99-82 alerting readers to this nuance.