October 28, 1993
Digest: The CPL 510.40(3) rule that a judge must examine bail posted in any form does not ethically preclude a judge from delegating the ministerial function of counting posted cash for bail to a court clerk, or an appropriate custodial or police official.
Rules: 22 NYCRR §§100.3(a)(5); 100.3(b)(1).
A local court judge asks what CPL §§100.40(3) means in practical terms, when it requires the court to examine all forms of posted bail, in situations where the bail posted is in the form of cash. The written question was supplemented and clarified by a conversation with a member of this Committee in which the inquiring judge specifically requested the Committee to address the ethical aspects of that issue in light of the 1993 Annual Report of the New York State Commission on Judicial Conduct, pp.16-17, which cites an admonition of eleven non-lawyer local court judges who apparently “delegated to the county sheriff's department the authority to review and approve bail bonds and sign the judges' names to release the defendant.” Therefore, this judge specifically inquires whether criminal court judges, as a matter of ethics, must personally count cash when posted for bail by or on behalf of a defendant.
This inquiry calls for an opinion on the ethical aspect of this issue only, as this Committee has no authority to rule upon the legal issues that also may be implicated in the instant question.
To begin with, the facts underlying the above-quoted Commission's admonition are vastly different from those presented by the instant inquiring judge. It is common practice for criminal court judges to delegate to the members of their own clerical staff or appropriate custodial or police official the ministerial task of counting cash when posted for bail by or on behalf of a defendant. This practice is entirely proper, and violates no ethical standards. To require judges personally to count posted cash bail in every instance would serve no legitimate end, and would be a grossly inefficient procedure, especially in courts with moderate or heavy caseloads.
The situation with which the Judicial Conduct Commission dealt in its 1993 Annual Report involved judges who improperly delegated the clearly judicial function of signing and approving bail bonds, a function which requires legal interpretation and the act of making sure the bail documents conform to statutory standards. The obvious intent of the Commission's admonition, quite appropriately, is to discourage judges from delegating those legal - as opposed to ministerial - functions to a police officer.
Therefore, this Committee concludes that judges violate no ethical rule by permitting a member of their clerical court staff or appropriate custodial or police official - instead of the judge personally - to physically count posted cash for bail to assure that the amount physically posted conforms to the figure ordered by the court.