September 10, 2020
Please Note: As this opinion addresses only the specific set-up of the inquiring judge’s court, it should be read together with Opinion 20-177 for a broader and more comprehensive perspective.
Digest: It is permissible for a town security officer, who is a village police officer and not a court employee, to distribute the District Attorney’s plea offers to arriving defendants, provided the judge and court clerk/staff have absolutely no actual or apparent involvement in their handling or distribution
Rules: 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(7); 100.3(C)(1); Opinions 20-97; 20-66; 19-168; 19-163; 19-145; 19-74; 16-167; 15-197(A); 10-177; 98-148.
The District Attorney in the inquiring town justice’s county has discontinued in-person plea negotiations amidst the coronavirus pandemic. Instead, the District Attorney’s office is preparing written plea sheets for each case before the first scheduled court appearance. The judge already advised the District Attorney’s office that the judge and court clerk can neither distribute such plea sheets nor make them available for defendants to pick up (see e.g. Opinions 20-97; 19-168; 19-163). Now, the District Attorney’s office instead proposes to drop off a set of individual plea sheets prepared for each case with the village police department, which is located nearby. A village police officer who is serving as a town security officer that day1 will go to the town court and distribute the plea offers to individual defendants as they check in. The judge and court clerk will have absolutely no involvement in handling or distributing or even announcing the availability of the plea offers. The judge asks if this arrangement is ethically permitted.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must always act to promote public confidence in the judiciary’s impartiality (see 22 NYCRR 100.2[A]) and must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]). A judge must dispose of all judicial matters promptly, fairly and efficiently (see 22 NYCRR 100.3[B]) and diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C]).
Thus, judges must “maintain their independence from prosecutors and not participate or assist in what are essentially the prosecutor’s duties” (Opinion 15-197[A]; see also e.g. Opinions 19-163 [court must not “distribute materials prepared by the prosecution to defendants” and likewise must not help the prosecution meet its discovery obligations by holding and/or delivering discovery packets prepared by law enforcement agencies]; 10-177 [court may not agree to “receive mail addressed to a prosecutor at the court address”]).
When considering plea bargaining initiatives in criminal matters, we recommend a judge “avoid any possible appearance of impropriety or coercion” by “satisfy[ing] him/herself that the defendant is aware of all his/her options, including the right to plead not guilty and go to trial before a fair and impartial arbiter” (Opinion 19-145). Of particular relevance here, a court must not be in the position of advocating a negotiated plea and, thus, must not distribute the District Attorney’s “informational document” to defendant motorists or otherwise implement the District Attorney’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters (see Opinion 20-97). Nor may the court “disseminate the prosecutor’s plea offer document to defendants at arraignment” (Opinion 19-168).
We have, at times, “distinguished between court personnel who provide security services and those in more neutral support roles” (Opinion 19-74 [noting “the court officer role, by its nature, is presumptively excluded from substantive case-related activities”]). This is especially true in local justice courts, where “local police officers and peace officers have traditionally provided court security services” (Opinion 98-148). For example, we recently said a town justice may permit a security officer to take defendants’ fingerprints within a secure area of the courthouse (see Opinion 20-66).
Here, too, we conclude that the distinction is relevant, and the town justice and court clerk and other more neutral court staff, if any, will have absolutely no involvement in handling or distributing or announcing the availability of the plea offers. We note the proposed arrangement between the District Attorney and the village police, although apparently novel, is not entirely surprising, given our understanding that “prosecutors have a special relationship with the police and other law enforcement authorities” (Opinion 16-167).
Therefore, the judge need not object to the proposed arrangement, by which the town security officer, who also serves as a village police officer, will distribute the District Attorney’s plea offers to arriving defendants, so long as there is no actual or apparent involvement by the judge or the court clerk/staff.
1 The town hires village police officers to serve as town security officers in the town’s facilities, including the town court. Although a town security officer is presumably subject to the judge’s direction and control in the courtroom or while providing courtroom security, we understand the town board ultimately controls the employment of these positions. We further understand the town security positions are separate and apart from the village police positions where they are employed by an incorporated village.