Opinion 15-34

March 19, 2015


Digest:         A judge may approve a plea agreement that includes a defendant’s participation in a district attorney’s traffic ticket diversion program, provided the judge determines both that the agreement is fair and appropriate with respect to that specific defendant and that the traffic ticket diversion program is legal.


Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B); Opinions 14-34; 12-119; 11-87; 10-32/10-48; 07-22; Marbury v Madison, 5 US 137 (1803).




         Two trial court judges ask whether they may approve plea agreements that hinge on a defendant’s participation in a local prosecutor’s traffic ticket diversion program. Eligible defendants must pay a $200 non-refundable application fee to apply for the program. If accepted, they must take a defensive driving course; on completion, the district attorney will withdraw the prosecution, and the ticket will be dismissed. The district attorney’s office has stated that eligible defendants who do not pay the application fee will not receive any plea deals and must either plead guilty or go to trial. The inquiring judges are concerned that otherwise similarly situated defendants may be treated differently based on their willingness and ability to pay the application fee. The judges also ask how the court should respond if a defendant complains that the district attorney’s office rejected the defendant’s application and refuses to refund the application fee.

         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, and must always act to promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee has advised that a judge may approve a plea agreement that includes a defendant’s participation in a district attorney’s traffic ticket diversion program, if the plea agreement is fair and appropriate with respect to the particular defendant and if the traffic ticket diversion program is legal (see Joint Opinion 10-32/10-48). Conversely, should a judge conclude that particular “plea agreements violate the criminal procedure law or other statutory or decisional law, or, if by entering such an agreement, either attorney would breach” the Rules of Professional Conduct, then the judge, as a matter of judicial ethics, may not approve the agreement (id., quoting Opinion 07-22). The Committee cautions, however, that the judges must evaluate each case, rather than adopting any blanket policies in response to such programs, because to do so would abandon their adjudicatory responsibilities (see generally 22 NYCRR 100.3[B]).

         The Committee notes the inquiring judges’ primary concern appears to be that the prosecutor may be unfairly discriminating between otherwise similarly situated defendants, based on the defendants’ willingness and/or ability to pay a non-refundable application fee. While the Committee cannot address legal questions about the validity of the proposed traffic ticket diversion program or the propriety of the prosecutor’s conduct (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1), the Committee emphasizes that each inquiring judge has the inherent power to determine what law governs the exercise of his/her obligations in considering a proposed plea agreement, as well as the inherent power to interpret the appropriate provisions of governing law (see Opinion 14-34, citing Marbury v Madison, 5 US 137, 177 [1803] [“It is emphatically the province and duty of the judicial department to say what the law is.”]). Any questions concerning the correctness of the judge’s interpretation of the law, “to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 14-34, quoting Opinion 11-87).

         Finally, the Committee does not answer hypothetical or speculative questions (see e.g. Opinion 12-119). The Committee therefore declines to respond to the inquiring judges’ question about the possibility a defendant who pays the application fee, but is then excluded from the program, might be unable to persuade the district attorney’s office to refund the application fee.