January 30, 2014
Note: This opinion has been partially overruled by Opinion 17-110 (“A portion of the conduct in Opinion 14-12 remains impermissible, as a judge must not create an impression he/she is speaking for the prosecutor and/or aligned in interest with him/her, but the judge may describe a sentence he/she would be willing to impose if the defendant were to plead guilty; and explain its advantages in a non-coercive way consistent with this opinion.”). 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: Although a judge may advise a defendant orally of all his/her options, including the right to plead not guilty and proceed to trial, and may permit the prosecutor to offer the defendant any plea agreement that the prosecutor considers appropriate under the circumstances, the judge may not sua sponte advise defendants of a specific plea agreement the judge anticipates the prosecutor will offer and explain its purported advantages.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); Opinions 13-33; 12-68; 10-113; 09-118; 08-11; 00-95 (Vol. XIX); 96-132 (Vol. XV).
A judge who frequently presides over matters involving traffic tickets asks whether he/she may, in the course of explaining the defendant’s options, advise a defendant that the prosecutor “will, I believe, offer you a plea bargain on this ... ticket,” state or predict what the plea will be, and inform the defendant that such a plea “is a less serious moving violation” than the one originally charged in several ways. Specifically, the judge would explain that the anticipated plea bargain will involve fewer points, “the potential fine will be reduced,” and it “will generally not affect your insurance rate.” At the conclusion of his/her remarks, the judge would ask the prosecutor to confirm whether the plea described is being offered and then ask the defendant if he/she wishes to accept the offer.
A judge must always uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).
The Committee has consistently advised that judges must maintain their independence from prosecutors and not participate in “what is essentially the work of the prosecutor’s office” (Opinion 00-95 [Vol. XIX]; accord Opinions 13-33; 12-68; 10-113). Thus, a judge or court clerk may not distribute the prosecutor’s printed materials to defendants or otherwise assist a prosecutor in implementing his/her plea reduction procedures (see e.g. Opinions 13-33 [the court may not “simply advise” a defendant of a police department’s procedures for seeking a plea reduction without including all of the defendant’s options]; 12-68 [the court may not distribute an informational packet the prosecutor has prepared to inform defendants how they may request a plea reduction]; 10-113 [a judge may not designate the court clerk to advise defendants of any plea agreement the prosecutor will offer]; 08-11 [a judge may not implement a procedure the district attorney developed to facilitate defendants’ pleas to lesser charges in traffic matters that would eliminate the need for the district attorney’s office to appear in court]; 00-95 [Vol. XIX] [a judge must “decline to involve the court in the dissemination of documents by and on behalf of the prosecutor’s office,” but may use official Unified Court System forms informing defendants of all available options]).
Of particular note here, the Committee has specifically advised that “the court should not be the source or inspiration for a plea agreement as it would create an appearance of partiality and an indication that the judge is predisposed towards the defendant’s guilt” (Opinion 09-118; see also Opinion 96-132 [Vol. XV] [“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”]).
Thus, the inquiring judge may not sua sponte state or predict what plea bargain the prosecutor will offer to the defendant and then turn to the prosecutor for confirmation that the judge is correct, as this would create a strong impression that the judge is the true “source or inspiration for the plea agreement” (Opinions 13-33; 09-118). The inquiring judge’s proposal to undertake a sua sponte explanation of the purported advantages of accepting the anticipated plea offer only further reinforces the impression that the judge is participating in “what is essentially the work of the prosecutor’s office” (Opinion 00-95 [Vol. XIX]; see also Opinions 13-33; 12-68; 10-113).
Accordingly, the Committee concludes that although the judge may advise the defendant orally of all his/her options, including the right to plead not guilty and proceed to trial (see Opinion 13-33) and may permit the prosecutor to offer the defendant any plea that the prosecutor considers appropriate under the circumstances, the judge may not sua sponte advise defendants of a specific plea agreement the judge anticipates the prosecutor will offer and explain its purported advantages.