Opinion 20-152

October 29, 2020



Digest:         A judge has the discretion to determine whether or not to accept a guilty plea under the circumstances described.


Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); Opinions 20-165; 19-168; 19-145; 17-110; 16-92; 15-34; 14-34; 10-32/10-48.


         A town or village justice says the local District Attorney has discontinued in-person plea negotiations for vehicle and traffic matters due to ongoing public health concerns. Under the DA’s new program, a defendant who pleads not guilty to a simplified information may subsequently contact the prosecutor’s office to seek a reduction in the charges. The DA provides the defendant with a written plea agreement stating the proposed reduction, fine and surcharge, and stipulates that the fine and surcharge must accompany the plea agreement when submitted to the court. By design, the fine, surcharge and time of payment are all express conditions of the plea. Indeed, if the defendant fails to mail in the fine and surcharge with the plea, the DA expects the court to return the plea for non-compliance. In addition, the DA has advised that the plea agreement program is not subject to modification or negotiation. The judge’s only available options are to either accept the plea agreement as presented or reject it and set the matter down for trial. The judge is concerned that the DA is attempting to transform the court into a collection agency for fines and surcharges, and that cooperation could create the impression the court is merely serving as a rubber stamp for the DA’s policy. Accordingly, the judge asks if he/she may ethically accept a guilty plea under this program.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and avoid even the appearance of impropriety (see 22 NYCRR 100.2). Thus, for example, a judge must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]).

         In general, a court has an independent role in deciding whether a particular plea agreement is fair and appropriate with respect to a particular defendant (see Opinion 10-32/10-48). Thus, courts must not pre-approve participation for all defendants; rather, they must evaluate each case (see Opinion 20-165). However, the propriety of a plea agreement “is primarily a legal question” (Opinion 19-168). For example, in Opinion 19-168 we said a judge could accept a written stipulated plea offer between a prosecutor and a defendant when the prosecutor declines to appear in court, provided the judge concludes it is legally appropriate. As we explained (id.):

assuming the defendant brings a copy of the DA’s proposed stipulation with him/her to court, the judge may ethically consider and address it. Moreover, assuming the judge concludes the proposed disposition is legally appropriate, the judge may ethically approve it. Where the prosecutor has provided a written plea offer with a range of acceptable outcomes (e.g. if the document reflects the prosecutor’s “consent to a plea to a charge with higher points and/or fines acceptable to the court”), the judge may propose a disposition within that range, subject to the restrictions noted in Opinion 17-110.

         Some ethical issues may nonetheless come into play, depending on the specific circumstances. For example, “courts cannot pre-approve participation for all defendants nor should defendants be misled into thinking that program fees ensure court approval” (Opinion 20-165). We have also said “judges must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (id. [citation omitted]). Of particular note here, we said a judge may not facilitate a traffic plea reduction program instituted by the district attorney’s office “that would interfere with the court’s exercise of judicial review and discretion” (Opinion 19-145).

         Applying these principles to the present inquiry, we cannot conclude, based on the specific facts described, that the DA’s program unduly interferes with judicial discretion as a matter of ethics. We note, in this regard, that a plea is not necessarily ethically impermissible merely because it is offered on a take-it-or-leave-it basis and the specified conditions include payment of a specified amount (see e.g. Opinions 16-92 [“whether charging a fee to participate in the diversion program violates the Vehicle & Traffic Law is a legal question”]; 15-34 [declining to address whether “the prosecutor may be unfairly discriminating between otherwise similarly situated defendants, based on the defendants’ willingness and/or ability to pay a non-refundable application fee”]).

         Of course, if the judge concludes in good faith that the DA’s program does unduly interfere with judicial discretion, they should not participate in the program (see Opinion 19-145).

         Conversely, if the judge concludes the program does not unduly interfere with judicial discretion, the sole remaining question is essentially a legal one that we cannot address.1 As explained in Opinion 20-165 (citations omitted):

What is of paramount importance in each case is that each judge appreciates the importance of maintaining the judiciary’s integrity and independence. We emphasize that every inquiring judge, including this one, “has the inherent power to determine what law governs the exercise of his/her obligations in considering a proposed plea agreement, as well as the inherent power to interpret the appropriate provision of governing law.”


Indeed, as we have noted, “[i]t is axiomatic that a judge who makes a good-faith legal determination about the lawfulness of a plea agreement is necessarily acting ethically” (id.).


1 We are only authorized to issue advisory opinions concerning issues of ethical conduct or proper execution of judicial duties (see Judiciary Law 212[2][l]); we may not resolve issues of law. The appropriate vehicle for addressing questions concerning the correctness of a judge’s interpretation of the law, “to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (citation omitted) (Opinion 14-34).