Opinion 96-132

January 23, 1997

Note: While the outcome of this opinion remains unchanged, please see Opinion 17-110 for a discussion of a judge’s ability to initiate, suggest, or facilitate a plea agreement in criminal cases.

Digest:         Courts should not furnish printed forms to defendants in Vehicle and Traffic Law cases, in which a defendant agrees to plead guilty to a reduced charge.

Rules:          22 NYCRR 100.2(A)

Opinion:

         A town justice inquires whether it would be appropriate to mail to defendants or make available to defendants in the courtroom, printed forms to be executed by a defendant signifying the defendant’s request and agreement to plead guilty to a reduced charge in Vehicle and Traffic Law cases.

         The Committee advises against such practice, since it could adversely reflect on the impartiality of the judiciary (22 NYCRR 100.2[A]). Obviously, plea agreements, i.e., the acceptance of a plea of guilty to a lesser charge in satisfaction of a greater one, is a common, if not necessary practice, given the volume of cases and limited resources of the judicial system. In motor vehicle cases, such agreements usually are negotiated between the person prosecuting the charge, either an assistant district attorney or the arresting officer, and the defendant. If the prosecutor and defendant agree on a proposed plea, it is submitted to the justice presiding, who, in the exercise of judicial discretion, can accept or reject the agreement. If the court accepts the agreement, the accused pleads to the lesser charge agreed upon. If the court rejects the agreement, the accused either pleads guilty or proceeds to trial on the original charge. Further, it is common practice in many courts to have the prosecutor or arresting officer use a pre-printed form and submit the proposed plea agreement and the accused’s acceptance to the court, and for the court to indicate its agreement thereon.

         However, the court should not be the source or inspiration for the plea agreement. For, if the judge were to initiate negotiations leading to such plea agreements, either directly or indirectly, by furnishing accused individuals with plea agreement forms, it could lead to the perception that the court either has a predisposition that the defendant is guilty of some offense or, by promoting such a plea, is showing favoritism. To avoid the appearance of partiality or predisposition, the justice should be careful to leave the initiation and conduct of plea negotiations to the person whose duty it is to prosecute the charge. The use of forms to memorialize plea agreements is appropriate, but the court should be involved with such forms only when the proposed plea is submitted for the court’s approval.