Opinion 16-09

January 28, 2016

Please Note: See Opinion 23-18 for additional nuance about sending forms to defendant motorists. There, the Committee advised "it does not create any appearance of impropriety to invite the defendant motorist -- who has already entered a plea of 'not guilty' by mail -- to choose an option and return the form to the court, where doing so (a) does not suggest the court is favoring any option, (b) does not create any appearance that the court is serving as the prosecutor's intermediary, and (c) is expected to help defendants avoid a wasted trip to the courthouse in light of the prosecutor's decision not to send any representative to court on Vehicle and Traffic Law infractions matters unless a trial is scheduled."

Note: While the outcome of this opinion remains unchanged, 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:         A judge may not send a form letter to defendants who plead guilty by mail advising them sua sponte that they may change their plea to “not guilty” and either conference the matter with the prosecutor or negotiate a reduced plea.


Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(7); 100.3(C)(1); Opinions 15-197(A); 13-33; 12-68; 10-177; 10-113; 09-118; 00-95; 99-82; 96-132.



         The inquiring judge is concerned that the Vehicle and Traffic Law may not provide “justice” to defendants, and particularly out-of-state motorists, who plead guilty to an offense by mail. The judge wants “to be certain these defendants are fully aware of their rights and the consequences of their decision to plead guilty.” To that end, the judge has prepared a form letter for defendants who plead guilty by mail. The letter states:


Before I accept your guilty plea, I want to be assured that you have a full understanding of the Court process and that your guilty plea is made knowingly, voluntarily and intelligently. I am concerned that you may have submitted a guilty plea because (1) you thought it was your only option, (2) you did not want the inconvenience of coming to Court, or (3) you are unable to make an appearance due to time, distance, health, or other reasons. If you wish to change your plea to Not Guilty I can schedule a pre-trial conference for you with our [local] Prosecutor. Alternatively, your ticket(s) can be submitted to the Prosecutor for [his/her] consideration of a reduction in your charge(s) through a Plea Agreement, which can be accomplished through the mail and does not require your physical presence in Court.

The form letter includes check boxes offering two options. A defendant motorist may either (a) “change my plea to not guilty and ... schedule a [pre-trial] conference with the Town Prosecutor” or (b) “change my plea to not guilty and ... proceed with my ticket(s) through the mail. Please forward this to the Town Prosecutor for consideration of a reduction.” Finally, the letter advises the court will accept the guilty plea if it does not receive a response from the defendant “within 30 days.” The judge asks whether he/she may use this letter as described.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1). Thus, a judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not convey that others are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Also, a judge must dispose of all judicial matters, promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]) and must diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C][1]).

         The Committee has previously advised judges to “maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (Opinion 13-33; see also Opinions 10-113; 00-95). In the Committee’s view, while “it is possible to devise a form and procedure that do not place the court in a position of advocating a negotiated plea or in any way indicating a predisposition in the matter,” an appropriate form must list “all available options, e.g., the right to retain an attorney; to plead not guilty and have a trial; to waive the right to trial by pleading guilty to the charge; and the option of communicating with the appropriate prosecutorial office concerning a disposition” (Opinion 99-82; see also Opinion 13-33). The form may not permit a defendant to check-off his/her preference, or indicate a preference by the court, and should plainly indicate that it is “for informational purposes only” (Opinion 99-82). Similarly, “it would not be appropriate for a local court to mail or otherwise make available to a defendant, printed forms to be executed by the defendant signifying the defendant’s request and agreement to plead guilty to a reduced charge in Vehicle and Traffic Law cases,” as “such practice could adversely reflect on the impartiality of the judiciary” (id.; see also Opinion 96-132).     

         Here, the inquiring judge proposes to send, sua sponte, a form letter response to a mail-in plea that appears to reject the defendant’s guilty plea and encourages the defendant to confer with the prosecutor to conference the matter or negotiate a lesser plea. It provides two check boxes for the defendant to indicate his/her preference, where both available choices involve changing the plea to “not guilty.” Plainly, this letter, as drafted, appears to compromise the impartiality of the judiciary because, rather than advising a defendant of all options available to him/her consistent with this Committee’s prior opinions, it rejects the option the defendant has already chosen and demonstrates a bias against accepting mail-in pleas. Notably, the letter also takes an advocacy position by articulating several reasons why a defendant might wish to reconsider his/her guilty plea.

         The proposed letter is thus impermissibly defense-oriented in that it sua sponte rejects or strongly discourages legally permissible mail-in pleas, even if they are made in strict compliance with the statutory scheme, in an effort to protect defendants. Further, the letter’s apparent recommendation that defendant motorists change their plea to “not guilty” could readily create an impression that the judge has already determined that the defendant will be able to either (a) prevail on the merits and/or (b) negotiate a favorable plea reduction.

         Ironically, the proposed letter may also be seen as impermissibly prosecution-oriented because the second checkbox suggests a plea reduction and offers to “forward” the defendant’s checked off selection “to the Town Prosecutor for consideration of a reduction” (see e.g. Opinions 10-177 [the court may not agree to “receive mail addressed to a prosecutor at the court address”]; 12-68 [the court may not distribute the prosecutor’s informational packet informing defendants how to request a reduction]; 09-118 [“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”]; cf. Opinion 15-197[A] [“a judge must decline to act as the prosecutor’s intermediary”]).

         Accordingly, the judge may not mail this form to defendants in response to a mail-in plea, as it is inconsistent with the independence of the judiciary (see 22 NYCRR 100.2[A]; cf. Opinions 15-197[A]; 13-33; 12-68; 10-177; 10-113; 09-118; 00-95; 99-82; 96-132).