Opinion 20-97

June 18, 2020

Digest:         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 DA’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters. The court may, however, distribute a court-prepared form impartially listing all options for a defendant motorist and include a link to the DA’s website as a convenience to defendant motorists.

Rules:          22 NYCRR 100.1; 100.2; Opinions 20-99; 18-101; 17-34; 13-33; 12-68; 09-118; 08-11; 99-82; 93-58.

Opinion:

         A judge with supervisory authority over town and village justice courts notes the many impacts of current public health concerns involving the novel coronavirus (COVID-19). For example, the court system is limiting in-person appearances in certain courts and is promoting use of technology for court proceedings and appearances. Moreover, many prosecutorial agencies and courts have experienced significant staff reductions. Accordingly, the judge asks if the justice courts may “give the public … an effective way to complete their respective matters timely and safely” by distributing the District Attorney’s “informational document” describing how a defendant motorist may seek a negotiated plea to a reduced charge without any personal appearances by the DA’s office or the defendant. The document is printed on the DA’s letterhead and directs the defendant to submit the “ticket” (accusatory instrument) and a copy of the defendant’s department of motor vehicles “abstract” (i.e. conviction record acquired by the defendant from the DMV) “electronically” to the DA’s office. The document further states that a letter from the defendant’s “insurance company” stating that all property and personal injury damages have been paid in full is also required if an accident was involved. The defendant’s submission will be reviewed and a “disposition letter” will be mailed to the defendant. The form then instructs the defendant to sign the disposition letter if he/she agrees to the offered plea and forward the signed disposition letter to the court with the “ticket.” The form also states in bold font that “All questions about fines, penalties and adjournments must be addressed to the Court,” and that “failure to follow these instructions exactly will result in no response,” meaning that “the process will have to be started over again and your case will be delayed, possibly resulting in a suspended license.”

         Pursuant to the Rules Governing Judicial Conduct, a judge must act to preserve the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2).

         We have repeatedly advised that a court must 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 or a member of his/her staff to appear in the judge’s court” (Opinion 08-11; see also e.g. Opinion 93-58 [“A district attorney is without authority to impose rules of procedure upon a court”]). Moreover, we note the proposed form also improperly implies that the DA has control over any “delay” in disposition (i.e. adjournments, scheduling and case management), suspension of the defendant’s license, and disposition authority, all of which of which are under the court’s authority. Seen as a whole, these statements manifest an intrusion on the judiciary’s independence and, if distributed by the court, would violate the court’s obligation to uphold the independence of the judiciary. We thus believe it would be improper for the courts to implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters by distributing the DA’s informational document (see e.g. Opinions 13-33; 12-68; 08-11; 93-58).

         We also note two additional closely related principles apply on the facts presented. First, “[a] judge should not be in the position of advocating a negotiated plea or in any way indicating a predisposition in the matter” (Opinion 17-34). Second, “[i]t is ethically impermissible for a judge or the judge’s court clerk to distribute an informational packet the District Attorney has prepared to inform defendants how they may request a reduction of an alleged Vehicle and Traffic Law violation pending in the judge’s court” (Opinion 12-68). Here, the proposed informational form violates both principles, as it was prepared by the DA’s office and appears designed to encourage defendants to negotiate a guilty plea.

         Our prior opinions recognize that the courts may, subject to significant limitations, develop and distribute documents to inform defendants charged with infractions, VTL violations and other minor offenses of all their options, including “the possibility of communicating directly with the district attorney, appropriate municipal attorney or other non-peace officer prosecutor for the purpose of negotiating a mutually acceptable disposition for submission to the court” (Opinions 08-11, quoting Opinion 99-82). Indeed, such a form already exists to notify defendants of all their procedural options in VTL matters in a neutral manner (see Opinions 20-99; 12-68 n2; 09-118). Thus, we conclude the court may distribute a court-prepared form impartially listing all options for a defendant motorist (see Opinions 20-99; 13-33; 99-82); and may also include a link to the DA’s website as a convenience to defendant motorists (see Opinions 20-99; 09-118; 18-101).

         We are not unsympathetic to the challenges facing prosecutors and courts in fulfilling their functions in the face of limited resources and an ongoing public health crisis. However, we see no reason to attenuate the judicial ethics standards designed to maintain the independence of the judiciary in these circumstances, absent superseding authority from a governmental entity with authority to promulgate such attenuation.