Opinion: 99-50

March 11, 1999

Digest: Letters received by a judge from friends and relatives of the defendant or the victim concerning a pending sentence and that are being considered by the judge, should be made available for inspection by the parties and their attorneys.

Rules:  22 NYCRR 100.3(B)(6);
            CPL Articles 380, 390, 400;
            CPL §400.10(3).


            A judge inquires "about the proper way to handle letters concerning a pending sentence that may be written by friends and relatives of either the defendant or the complaining witness." May such letters be considered, or are they "improper ex parte communications as defined in section 100.3(B)(6) of the rules of the Chief Administrator of the Courts," which prohibits judicial consideration of ex parte communications?

            As a general proposition, the Committee is of the opinion that consideration of such letters is not a violation of judicial ethics. This assumes that such consideration is carried out in accordance with the various provisions of law governing sentencing procedures. See generally Articles 380, 390, 400 of the Criminal Procedure Law. Furthermore, as suggested by the inquirer, should there be such consideration, the Court should "inform the attorneys prior to the sentence date that the letters are available for inspection." See e.g., CPL § 400.10(3). Presumably, such notice given to the attorneys and the parties would afford the parties "an opportunity to controvert or comment upon any fact" that is alleged in the communication. CPL § 400.10(3).