Opinion:90-31

March 1, 1990

Digest:         A full-time judge, in response to an inquiry from the department of probation, may express an opinion concerning the calculation of the length of a defendant’s sentence and concerning the method for calculating sentence lengths generally.

Rules:          Executive Law § 259 (i)

                   22 NYCRR §§ 100.3 (a) and 100.4 (a)

Opinion:

         A full-time judge asks whether, in response to a request for comments and recommendations by the county probation department, sheriff’s office, or other public agency, he may state that he disagrees with the proposed date of release from prison of a defendant whom the judge has sentenced, if the judge believes that the sheriff’s department has made an error in calculating the jail time which the defendant must serve and may be erroneously calculating the jail time of other defendants.

         Section 100.3 (a) and 100.4 (a) of the Rules of the Chief Administrator of the Courts cover the proper performance of judicial duties and the various activities which a judge may engage in to improve the law, the legal system, and the administration of justice. These provisions do not prohibit a judge from offering an opinion as to whether the computation of a specific sentence and the methods used to compute sentences generally are accurate, where the judge comments in the context of responding to an inquiry by the probation department, or other appropriate public agency. In a response, the judge may make relevant comments without being limited to answering the precise question posed.

         In addition, section 259-i (1)(a)(i) of the Executive Law authorizes the New York State Board of Parole to consider recommendations from the sentencing court prior to the release of a defendant. Consequently, a judge, when requested by the appropriate agency, may state his view as to the eligibility of a defendant for parole, including his view as to calculation of the sentence.

         However, the Committee has formulated no opinion as to whether or to what extent a judge, subsequent to imposing a sentence, may initiate such a communication outside of the context of a response to an inquiry, and therefore this opinion does not address that question.