January 30, 2020
Digest: (1) A justice court may not disseminate the prosecutor’s plea offer document to defendants at arraignment. (2) When both sides are present, a judge may negotiate a plea offer with a defendant, subject to significant ethical, constitutional, and statutory limits. (3) When the prosecutor gives the defendant a written plea offer and then declines to appear in court, the judge may accept the stipulated plea offer if he/she concludes it is legally appropriate.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(6)(d); 100.3(B)(7); 100.3(C)(1); Opinions 19-145; 18-101; 17-110; 13-124/13-125/13-128/13-129; 10-196; 10-113; 10-32/10-48; 08-11; 00-95.
A town justice asks if he/she may (1) disseminate a District Attorney’s plea offer document to a defendant motorist at the time of arraignment; (2) negotiate a plea offer with a defendant, when the DA’s plea offer is unacceptable to the court; and (3) accept the DA’s stipulated plea offers. The plea offer document shows the initial charge and the prosecutor’s proposed reduction, along with a specified fine range, surcharge (if any), and points (if any). In addition, the document reflects the prosecution’s “consent to a plea to a charge with higher points and/or fines acceptable to the court.” The document invites defendants to advise whether they accept the reduction or reject the reduction and request a trial. The judge notes that most plea offers “are to parking violations” involving no points and no surcharge.
A judge must uphold 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). A judge must always act to promote public confidence in the judiciary’s impartiality (see 22 NYCRR 100.2[A]) and must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]). A judge must dispose of all judicial matters promptly, fairly and efficiently (see 22 NYCRR 100.3[B]) and diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C]). A judge must “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 (22 NYCRR 100.3[B]). For example, a judge “with the consent of the parties, may confer separately with the parties and their lawyers on agreed-upon matters” (22 NYCRR 100.3[B][d]).
Preliminarily, when considering plea bargaining initiatives in criminal matters, we recommend a judge “avoid any possible appearance of impropriety or coercion” by “satisfy[ing] him/herself that the defendant is aware of all his/her options, including the right to plead not guilty and go to trial before a fair and impartial arbiter” (Opinion 19-145). We now turn to the three specific issues presented.
Distributing Documents for the Prosecution
In general, a judge must not disseminate documents authored by the DA’s office or otherwise present him/herself as the prosecutor’s agent (see Opinion 10-196). We have repeatedly said “judges must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (Opinions 19-145; 18-101; 08-11). A judge may not send forms prepared by the DA’s office to traffic defendants (see Opinion 00-95), or include extensive information promoting the District Attorney’s traffic diversion program on the court’s website (see Opinion 18-101). For similar reasons, the traffic court clerk may not advise defendants of any plea agreements the DA will offer (see Opinion 10-113). This procedure “would impermissibly blur the distinction between the judicial and prosecutorial roles, and, at the very least, would create an appearance of impropriety” (id.).
Here, too, the justice court may not disseminate the prosecutor’s plea offer document to defendants at arraignment.
Negotiating Plea Offers with Both Sides Present
When both sides are present, we believe a judge may negotiate a plea offer with a defendant, as long as the judge follows certain guidelines (see Opinion 17-110). As we observed, “a court has an independent role in deciding whether a particular plea agreement is fair and appropriate with respect to a particular defendant” (Opinions 19-145; 10-32/10-48).
A judge must “proceed with caution when discussing negotiated pleas in a criminal case, mindful of defendant’s constitutional rights and the prosecution’s burden of proof” (Opinion 17-110). Thus, when discussing or negotiating an alternative plea offer, the judge must not give the impression he/she is predisposed towards a defendant’s guilt, must non-coercively present any alternative plea agreement terms, must not appear to be attempting to coerce a disposition to further the judge’s convenience or personal interest, must avoid any appearance of impropriety, and must avoid improper ex parte communications (id.). The judge should also “satisfy him/herself that the defendant is aware of all his/her rights, including the right to plead not guilty and go to trial before a fair and impartial arbiter” (id.).
Accepting Stipulated Plea Offers in the DA’s Absence
The novel question here is how the judge may proceed when the DA’s office has provided a stipulated plea offer to a defendant in writing, and thereafter declines to appear in court. Where the prosecutor chooses to proceed in this fashion, we believe he/she is consenting to allow the judge to “confer separately” with the defendant on the prosecution’s stipulated plea offer, for purposes of the ex parte communications rule (see 22 NYCRR 100.3[B][d]; Opinion 13-124/13-125/13-128/13-129).
Thus, assuming the defendant brings a copy of the DA’s proposed stipulation with him/her to court, the judge may ethically consider and address it. Moreover, assuming the judge concludes the proposed disposition is legally appropriate, the judge may ethically approve it. Where the prosecutor has provided a written plea offer with a range of acceptable outcomes (e.g. if the document reflects the prosecution’s “consent to a plea to a charge with higher points and/or fines acceptable to the court”), the judge may propose a disposition within that range, subject to the restrictions noted in Opinion 17-110.
Again, a plea agreement’s propriety is primarily a legal question, which we cannot address (see Opinion 19-145). “A judge who makes a good-faith legal determination about the lawfulness of a plea agreement before him/her is necessarily acting ethically” (id.).