Opinion 25-09

February 6, 2025

Digest:   A judge may contact another court and request a copy of charges pending against a defendant who is being arraigned before the judge, if the judge has learned in the course of their official judicial duties that there are such charges pending in another court and the nature of such charges may bear on the judge’s bail decision.

Rules:    Judiciary Law 212(2)(l); 22 NYCRR 22 NYCRR Part 100, Preamble; 100.0(S); 100.1; 100.2; 100.2(A); Opinions 21-145; 15-85.

Opinion:

          A town justice states that, in cases where a defendant before him/her has been charged with petit larceny and assault, the defendant’s Division of Criminal Justice Services (DCJS) report often reveals “similar charges pending against the defendant in another court.”  The judge states that the specific circumstances underlying such charges may legally bear on the judge’s bail decision (see e.g. Criminal Procedure Law § 510.10[4][t]).  Accordingly, the judge asks if it is ethically permissible to contact the other court and request a copy of charges pending there against a defendant being arraigned before the judge, given that the judge has learned of these charges in the course of official judicial duties.

          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”]). 

          We have emphasized that “[j]udges must scrupulously maintain their independence from prosecutors and law enforcement” and be “extremely careful not to abandon their neutral judicial role for an investigative or enforcement one” (Opinions 21-145 [citations omitted]).  Still, “[w]hile judges must avoid even the appearance of serving as investigators, advocates, prosecutors, or law enforcement, they need not turn a blind eye to information they have become aware of in their judicial capacity” (id.). 

          Along these lines, we have advised that a judge may review a defendant’s electronic driver’s abstract before accepting or rejecting a proposed plea agreement in a Vehicle and Traffic Law matter (see Opinion 15-85).  We have also advised that a judge may contact another court and request a defendant’s address as information of public record where the judge is properly considering whether to issue a bench warrant and the judge has learned in the course of the judge’s official judicial duties that the other court may have the defendant’s current address (see Opinion 21-145).

          Here, the judge’s review of the DCJS report is plainly within their official judicial duties.  Thus, it is ethically permissible for the judge to use information learned from the report as the basis for a subsequent “request [for] information of public record,” so long as the request is founded upon “a good-faith legal determination concerning the lawfulness of” considering that information in the bail decision (id.; see also Opinion 15-85 [from an ethical perspective, review of driver’s abstract is not an impermissible ex parte communication]).

          Finally, we cannot comment on the propriety of the inquiring judge’s analysis of the Criminal Procedure Law or other legal matters (see Judiciary Law § 212[2][l]; cf. Opinion 21-145 [inquiring judge must make a “good-faith legal determination” about the lawfulness of the proposed activity]).