Opinion 16-113

October 12, 2016

PERSONAL & CONFIDENTIAL

Dear :

         This responds to your inquiry (16-113) asking if it is ethically permissible to participate in the District Attorney’s traffic diversion program by 1) adjourning a defendant’s case, for 60 days at the DA’s request, to allow the defendant to participate in the program and then 2) dismissing the charges at the DA’s request after the defendant has successfully completed the program. Defendants are charged a fee to participate in the diversion program, and you are concerned the fee may violate Vehicle & Traffic Law § 1804.

         The Committee has consistently advised that if a diversion program does not violate a statute or case law, and a plea agreement is fair to and appropriate for a particular defendant, then a judge may consent to the defendant’s participation in the program as part of the plea agreement. However, whether charging a fee to participate in the diversion program violates the Vehicle & Traffic Law is a legal question which is beyond the Committee’s jurisdiction (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

         If you conclude, in good faith, the diversion program is legal, then you may participate in it as described to the extent legally appropriate. Conversely, if you conclude the program is illegal, then you may not voluntarily participate in it. Thus, you should not adjourn a case specifically to allow the defendant to participate in a diversion program you believe is illegal and should not approve a plea agreement that requires participation in the program.

         Enclosed for your convenience are Opinions 16-92; 15-34; 12-68; 10-32/10-48; 09-105; and 07-22, which address this issue.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice of the Supreme Court

                                       Committee Co-Chair