Opinion 25-62

May 15, 2025

Digest:  (1) Where a traffic diversion program does not involve a reduced sentence or negotiated plea, but only comes before the court when the District Attorney files a notice of election not to prosecute and motion to dismiss, the program’s propriety is primarily a legal question, which is beyond the purview of this Committee.
(2) A judge may, but is not ethically required to, raise concerns about the program to court administrators, the District Attorney, and/or the public.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 101.1; Opinions 20-165; 19-120; 10-142.

Opinion:

          The inquiring town justice asks if the local District Attorney’s proposed traffic diversion program is ethically permissible under the Rules Governing Judicial Conduct.  As described, the program appears to be designed to minimize judicial involvement.  The judge and court personnel will, of course, have no part in promoting or recommending the traffic diversion program.  Instead, the DA will “have cards printed out with information on how to apply for participation in the program,” and will ask law enforcement agents to distribute these cards to motorists along with a Uniform Traffic Ticket.  The DA also plans to post this information “outside the courtroom,” in the lobby of the town’s multi-purpose building.  Either way, it is unlikely the judge or court personnel will know who has applied for or been accepted into the program.  

          Once the DA determines that a defendant motorist has successfully completed the program, however, the DA’s office “will send the court a notification that the person has completed the program and that this notification is serving as the ‘People’s motion to dismiss’ and ‘the People elect not to prosecute the above-referenced matter.’”  Although the judge invites us to compare the disposition produced by a traffic diversion program with a plea agreement that would ordinarily be subject to a judge’s approval, we note that the DA’s program does not offer defendant motorists a reduced sentence conditioned on completion of the program.  To the contrary, the judge will apparently not have an opportunity “to either approve or not approve” the disposition, because even if the judge denies the People’s motion to dismiss, the DA will nonetheless decline to prosecute.  The judge is concerned that the proposed implementation of this program “will impede our ability to carry out our duties as Judges.”

          A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and avoid even the appearance of impropriety (see 22 NYCRR 100.2).  To that end, a judge must also “respect and comply with the law” and must always act in a “manner that promotes public confidence” in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]).

          We have previously considered judicial ethics issues arising out of traffic diversion programs that involve the offer of a reduced sentence or plea agreement.  As explained in Opinion 20-165 (citations omitted):

In general, a court has an independent role in deciding whether a particular plea agreement is fair and appropriate with respect to a particular defendant based on lawful considerations.  We have repeatedly advised judges that if they conclude, in good faith, that a particular traffic diversion program is legal, then they are free to participate to the extent appropriate.  Conversely, we have also advised judges that if they conclude that a traffic diversion program is illegal, then they must not voluntarily participate in it. What is of paramount importance in each case is that each judge appreciates the importance of maintaining the judiciary’s integrity and independence.

          Here, however, the proposed traffic diversion program involves outright dismissal and/or refusal to prosecute rather than a reduced sentence or negotiated plea.  In that regard, we have recognized that “the propriety of a prosecutor’s exercise of discretion in deciding whether and how to prosecute offenses … raises legal issues beyond the Committee’s jurisdiction” (Opinion 10-142; Judiciary Law § 212[2][l]; 22 NYCRR 101.1). 

          As always, a judge who makes a good-faith legal determination about the lawfulness of a DA’s traffic diversion program is necessarily acting ethically (see e.g. Opinion 20-165).  The same can be said for this judge’s decision to approve or disapprove a proposed motion to dismiss and/or to object to the DA’s traffic diversion program as implemented.  In sum, the judge may take any legally appropriate steps on receipt of the District Attorney’s motion to dismiss and/or notice of election not to prosecute.  On these facts, we can see no judicial ethics issues to address under the Rules Governing Judicial Conduct.

          We note that the inquiring judge may, of course, raise concerns about the program’s overall impact on court operations or defendants’ rights; may, to the extent lawful and practicable, object to the publishing or distribution of information advertising the program in the courtroom, the court clerk’s office, or other locations subject to the judge’s control; and may express the judge’s concerns to court administrators, the District Attorney, and/or the public (see e.g. Opinion 19-120).