October 29, 2020
Digest: A town or village justice has discretion, based upon the totality of circumstances involving the law enforcement officer assigned to their court, to permit, or not, the officer to distribute a prosecutor’s plea agreements in or adjacent to the court at the prosecution’s request. In exercising this discretion, the judge must consider factors such as the officer’s actual and apparent role in court proceedings and the need to avoid even the appearance that the court itself is serving as an intermediary for the prosecution.
Rules: 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); Opinion 20-143.
The inquiring town justice asks if it is ethically permissible for security personnel in their town court to distribute the District Attorney’s plea offers to arriving defendants. As in Opinion 20-143, the individuals providing court security are also local law enforcement officers. In the inquiring justice’s court, however, such individuals do more than provide court security and basic check-in services; they also help the court facilitate the orderly progression of cases on the court calendar. In that capacity, security personnel in this judge’s court may also answer procedural questions posed by court participants and hand papers between the judge and court participants, in addition to helping maintain order in the courtroom. Thus, the town justice is concerned that such security personnel would be perceived as an “employee” of the court, since they actively participate in the court’s calendar and are stationed inside the courtroom working closely with the court clerk and/or the judge.
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]).
As described in Opinion 20-143 (citations omitted):
[J]udges must “maintain their independence from prosecutors and not participate or assist in what are essentially the prosecutor’s duties.” … 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. Nor may the court “disseminate the prosecutor’s plea offer document to defendants at arraignment.”
We have, at times, “distinguished between court personnel who provide security services and those in more neutral support roles.” This is especially true in local justice courts, where “local police officers and peace officers have traditionally provided court security services.” For example, we recently said a Town Justice may permit a security officer to take defendants’ fingerprints within a secure area of the courthouse.
In describing the facts of Opinion 20-143, we noted the village police officer who was serving as a town security officer that day would distribute the plea offers to individual defendants “as they check in,” and the judge and court clerk would have “absolutely no involvement in handling or distributing or even announcing the availability of the plea offers” (id. [emphasis added]). We noted that the proposed arrangement between the DA 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’” (id. [citation omitted]). Accordingly, we concluded that it was permissible for a town security officer, who is a village police officer and not a court employee, to distribute the DA’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” (id. [emphasis added]).
Here, by contrast, the judge is concerned about a public perception that distribution of the plea offers by security personnel will create an appearance that the court itself is serving as an intermediary for the prosecution’s plea offer and/or is the source of the plea offer. The judge’s concern hinges on the specific functions and locations of security personnel in their court, as such individuals work closely with the judge and/or court clerk to help facilitate the orderly progression of cases on the court calendar, answer procedural questions from court participants, and hand papers between the court and court participants, and may be stationed near the bench to help maintain order in the courtroom during the proceedings.
The inquiring judge has the discretion to prohibit security personnel from distributing the DA’s plea offers to arriving defendants. Indeed, it is appropriate to do so if, as it seems here, the judge has concluded that such individuals could be perceived as “employees” of the court based on their location and functions as they actively participate in the court’s calendar and are stationed in the courtroom working in conjunction with the judge and/or court clerk.
Based on the facts presented here, which provide an additional and very different scenario than the one we considered before, we are able to broaden and clarify our prior opinion in Opinion 20-143. A town or village justice has discretion, based on the totality of circumstances involving the law enforcement officer assigned to their court, to permit the officer to distribute a prosecutor’s plea agreements in or adjacent to the court at the prosecution’s request or to prohibit it. In exercising this discretion, the judge must consider factors such as the officer’s actual and apparent role in court proceedings and the need to avoid even the appearance that the court itself is serving as an intermediary to the prosecution.