December 10, 2020
Digest: As described, the proposed plea reduction form is impermissible.
Rule: VTL § 1806; 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 20-165; 20-143;
20-99; 20-97; 20-69; 19-168; 19-145; 19-47; 17-34; 09-137; Matter of C.,
2017 Ann Rep of NY Commn on Jud Conduct, at 67.
In light of ongoing public health concerns, the inquiring town or village justice
would like to adopt a new procedure to limit foot traffic in the courtroom.1 By way
of background, we understand that when defendant motorists plead “not guilty” by
mail to traffic infractions, the court directs them to appear for an initial appearance
date at which “no testimony shall be taken” (VTL § 1806). Thereafter, “[i]f the
motorist requests a trial, the court shall set a trial date on a date subsequent to the
date of the initial appearance” (id. [emphasis added]).2 We further understand that,
in many local courts, the prosecutor regularly meets with defendant motorists at the
initial appearance date and offers them an opportunity to enter a plea to a reduced
charge in lieu of returning to the court for trial at a later date.
The Proposed Plea Reduction Form and Proposed Procedure
The inquiring justice proposes that the prosecuting agency will give defendant
motorists a plea form when they arrive at court for their initial appearance on the
traffic calendar after entering a “not guilty” plea by mail. The top of the form says
“[MUNICIPALITY NAME] JUSTICE COURT / MEMORANDUM OF TRAFFIC VIOLATION PLEA
AGREEMENT.” Directly under that is a space for the name of the defendant motorist.
The next section is labeled “PART I: Plea Offer (to be completed by the
[prosecutor] or prosecuting police office).” In this section, the prosecuting agency is
to provide details concerning each original charge and the reduced charge, along with
the number of points associated with the reduced charge. There is also a space to
enter the fine and/or surcharge associated with each charged offense, but this space
is marked “Fine/Surcharge (Set by Judge).” Part I is to be signed and dated by the
prosecuting agency’s representative.
The following section is “PART II: Guilty Plea (to be completed and signed by
the defendant/motorist who wishes to plead guilty).” This section reiterates certain
notices from the back of the uniform traffic ticket and also contains waivers of the
right to counsel, the right to appear before the judge, and the right to go to trial:
I hereby waive an appearance before a judge and a trial in the Court
and agree to plead guilty to the reduced charge(s) as indicated above in
PART I. “I understand that a plea of guilty to the reduced charge(s) is
equivalent to a conviction after trial. If convicted, I am not only
subject to a penalty, but in addition, my license to drive a motor vehicle
or motorcycle, and my certificate of registration, if any, are subject to
suspension and revocation as prescribed by law.” If I have not been
represented by an attorney today, I hereby waive my right to the
assistance of an attorney for purposes of entering into this plea
Part II is to be signed and dated by the defendant motorist and, if applicable, their
Directly underneath the line for the defendant motorist’s signature, without
any visible separation, appear the words “PLEA APPROVED” and a place for the
judge’s signature. In the lower right corner, in bold, appear the words “IF THE
MOTORIST WISHES TO SPEAK WITH THE JUDGE THE MOTORIST SHOULD MAKE A
REQUEST TO A COURT EMPLOYEE OR POLICE OFFICER.”
Once the prosecuting agency completes Part I and the motorist completes Part
II, the form would then be given to the judge to either approve or disapprove the
plea offer, and if approved, to set the fine/surcharge and sign the form.3 We further
understand that, if the defendant motorist decides to enter a plea using this form,
then the defendant can pay the fine electronically without ever seeing the judge.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and must always promote public confidence in the judiciary’s integrity and
impartiality (see 22 NYCRR 100.2[A]). A judge must not convey, or permit others to
convey, the impression that others are specially positioned to influence him/her (see
22 NYCRR 100.2[C]).
The propriety of any particular guilty plea is primarily a legal question, and we
thus recognize from the start that a judge who makes a good-faith legal
determination that it is lawful to review and approve negotiated pleas on traffic
infractions without any in-person appearance by the defendant motorist may ethically
do so (see generally Opinion 20-165). Nonetheless, 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; accord Opinions 20-143; 19-168).
It is, of course, “critically important to protect and preserve both the fact and
the appearance of the independence of every judge. In particular, judges must
maintain their independence from prosecutors and not participate or assist in what is
essentially the work of the prosecutor’s office” (Opinion 20-69 [citations and internal
quotations omitted]). Significantly, 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; accord Opinions 20-99; 20-97).
Here, given that all defendant motorists who would be given the proposed
form are physically present at the courthouse and have already entered a plea of
“not guilty,” great care must be taken to avoid the appearance that the court is
actively encouraging them to change their plea to “guilty” without ever seeing the
official who needs to be satisfied that the plea is “understood, voluntary and not
coercive” (Matter of C., 2017 Ann Rep of NY Commn on Jud Conduct, at 67).
In light of these principles, we believe the form, as described, is impermissible
for three interrelated reasons.
First, the form does not present all the motorist’s options neutrally (see e.g.
Opinions 20-99; 20-97). In particular, the option of seeing the judge and requesting a
trial date is not given equal weight with the option of entering a negotiated plea.
The former option is listed only in the lower right corner of the form, and is
substantially less prominent than the proposed waiver of rights in Part II which the
defendant is invited to sign.
Second, having the court’s name at the top of a form actively soliciting the
defendant motorist’s participation in a plea reduction could create an appearance
that the court and the prosecuting agency are aligned in interest and working
together to offer the defendant a reduced plea, which is impermissible (see e.g.
Opinion 20-99). In context, this appearance is subtly underscored by the apparent
designation of “a court employee or police officer” as gatekeepers for a defendant
motorist who wishes to speak to the judge.
Third, while we cannot comment on legal questions, we note that the inquiry
itself refers to a defendant motorist’s “right to see the judge/to a trial.” If the
defendant motorist indeed has a legal right to see the judge and a right to request
and obtain a trial date, then the wording of the notice in the lower right corner
significantly downplays those rights. The notice suggests only that the defendant
motorist may “make a request” to speak with the judge if they wish to do so, and is
entirely silent about the motorist’s right (if any) to obtain a trial date on request.
This, too, undermines the court’s appearance of neutrality.
We therefore conclude the proposed form is ethically impermissible.
Our locally funded justice courts, often termed “the courts closest to the
people,” face many pressures in handling their burgeoning caseload. They may, of
course, provide a copy of the administratively approved form described in Opinion 20-99 to defendant motorists who plead “not guilty” by mail under VTL § 1806, whether
at the courthouse or by mail or by other lawful means. However, we believe it may
be helpful for court administrators, working with the Office of Justice Court Support,
to develop and circulate a new form, consistent with applicable ethical and legal
considerations, for use in these circumstances. Such a form could help protect well-intentioned judges across the state from inadvertent missteps. We note that other
potential solutions might be technological in nature (e.g. if defendant motorists could
interact directly with the prosecuting agency online to request plea reductions) or
even legislative (e.g. if statutory changes could be made to facilitate plea bargaining
in matters where defendants mail in “not guilty” pleas pursuant to VTL § 1806).
1 Shortly after the inquiry was submitted, many categories of in-person proceedings were
temporarily suspended. We nonetheless address the issue, as in-person proceedings will
doubtless resume once legally or administratively permitted.
2 In Opinion 09-137, we discussed a then-recent amendment to VTL § 1806, which seemed to
undercut earlier disciplinary decisions prohibiting judges from sua sponte requiring motorists
to appear for a “pre-trial conference” after they mailed in a “not guilty” plea.
3 Thus, when the motorist is given the form by the prosecuting agency, there are no markings
in the areas designated for the judge to fill out. This helps avoid any implication of pre-approval by the judge (cf. Opinions 20-165; 19-145) and/or improper delegation of judicial
duties (cf. Opinion 19-47).