September 7, 2017
Digest: A judge must not permit or consider a witness’s ex parte request to dismiss a traffic summons for a moving violation, unless the judge determines that applicable law specifically authorizes him/her to do so.
Rules: 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(6)(e); Opinion 10-142.
A town justice asks if he/she may dismiss a traffic summons for a moving violation at the written request of the police officer who wrote the ticket.1 The judge explains that the town employs a prosecutor to handle all traffic matters, and thus the police officer is involved solely as a witness. Moreover, the police officer has not submitted a motion on notice to all parties, but only a letter addressed to the court purporting to withdraw the charge and requesting the court to “drop/dismiss” the ticket. The letter contains no indication on its face that the prosecutor and/or the defense have been notified of the police officer’s request.
A judge must respect and comply with the law 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 accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B]). Accordingly, a judge “shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” unless an exception applies (id.). A judge may, however, “initiate or consider any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][e]).
While the propriety of a prosecutor’s exercise of discretion concerning whether and how to prosecute offenses raises legal issues beyond our jurisdiction (see e.g. Opinion 10-142), here it is not the designated prosecutor, but a witness, who is attempting to dismiss or withdraw a traffic summons for a moving violation without notice to any party, thus denying both sides a chance to be heard (see 22 NYCRR 100.3[B]).
We therefore conclude this judge must not permit or consider the witness police officer’s ex parte request to dismiss a traffic summons for a moving violation, unless the judge determines that applicable law specifically authorizes him/her to do so (see 22 NYCRR 100.3[B][e]).
1 The inquiry does not refer to nonmoving violations, such as parking tickets, and we therefore do not address the issue.