County Court, Wayne County, March 8, 2019

James L. Riotto, II, for appellant.

Michael D. Calarco, District Attorney (Bruce Rosekrans of counsel), for respondent.

The defendant, Mark G. Steger, has filed an appeal from a judgment of conviction of the Huron Town Court, rendered on July 23, 2018, convicting him of the traffic violation of use of a mobile telephone, in violation of Vehicle and Traffic Law § 1225-c (2).

Prior to the commencement of the trial, the defendant was offered a reduction to a violation of section 1110 (a) of the Vehicle and Traffic Law. The court did not allow this reduction. At the beginning of the trial the court was asked whether this was a blanket policy. The court responded that it was a blanket policy that no reductions were given in this type of case. The court went on to state that it is a personal policy that "we have between both judges. We don't reduce cell phone tickets."

The trial commenced with only one witness testifying, the arresting trooper. The defendant was found guilty of the initial charge and was fined $170.

Two issues are raised in this appeal. The first issue deals with plea bargaining and the second issue deals with the appearance of impartiality related to the court's policy on handling cell phone cases.

CPL 220.10 (3) permits a defendant to plead guilty to a lesser charge "with both the permission of the court and the consent of the people." It is unquestionable that a court can reject a plea to a lesser charge but such rejection should be supported by the facts and by the law. [*2]A blanket policy as articulated by the judge in this case calls into question the propriety of a court's categorical rejection of a proffered plea which both the prosecution and the defendant were willing to accept.

Plea bargaining, which is an exercise of prosecutorial and judicial discretion, enables sentences to be tailored to both the offense and the offender. A judge who announces that his future actions will be dictated by a no plea bargaining policy fails to exercise any discretion and makes no allowance for the fundamental precept of our system of justice. In essence, a judge who announces a firm policy waives the benefits of plea bargaining arbitrarily and without deliberation. He renders CPL article 220 meaningless (see People v Glendenning, 127 Misc 2d 880 [Sup Ct, Westchester County 1985]).{**63 Misc 3d at 817}

The policy of rejecting pleas in a cell phone usage case is an improper exercise of judicial discretion. The categorical rejection of certain types of pleas is by its nature an impermissible infringement on the prosecutorial function. It is not within the court's inherent power to instruct a prosecutor regarding his plea bargaining posture. An established policy has precisely this effect. It renders prosecutorial discretion with regard to the type of plea involved meaningless thus forcing the prosecutor to revise his procedures to confirm with the court's wishes. An announced policy also runs contrary to the purposes of plea bargaining. (See People v Glendenning.)

The issue of partiality comes into focus with a blanket no plea policy. Code of Judicial Conduct Canon 2 (A) requires that a judge "act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary." Closing the door to plea bargaining for every cell phone violation gives an impartial observer the impression that the judge may be favoring conviction of the charge. An inference of partiality is something the judiciary should strive to avoid.

The defendant, as one of the forms of relief requested, asks if he may get the benefit of the plea bargain at this juncture. The response is no. The defendant is not entitled to specific performance of the plea agreement as the judge did not approve it. (See People v Compton, 157 AD2d 903 [3d Dept 1990].)

The defendant, as a second form of relief, requested that the judgment be reversed and this matter be remitted to the Town of Huron Justice Court for a new trial. A new trial would not necessarily remedy this situation. According to the trial judge's remarks at the beginning of the trial, "It's a personal policy that we have between both judges. We don't reduce cell phone tickets. Sorry." In light of that revelation, the appropriate relief is to reverse the judgment of conviction of violating Vehicle and Traffic Law § 1225-c (2) and transfer this case to the Town Court of Marion, New York, for further proceeding of this matter.

The decision on the appeal in this matter was made on the record—the trial transcript. As part of the papers submitted from the Justice Court a letter from defense counsel to Judge Urban [*3]dated July 25, 2018, as well as a letter dated July 30, 2018, to the New York State Commission on Judicial Conduct from Judge David Urban was enclosed. Judge Urban indicated that he felt like he was being threatened and/or intimidated by{**63 Misc 3d at 818} defense counsel's letter. In light of these letters, the decision to transfer this case to another court for resolution is reinforced.