Opinion 13-42

April 25, 2013

Digest:         The Rules Governing Judicial Conduct do not prohibit a justice court from advertising for local not-for-profit organizations willing to accept court placements of defendants to serve community service sentences.

Rule(s):        Criminal Procedure Law §§ 170.55(6), 390.30(6); Executive Law § 261; Judiciary Law § 212(2)(l); Penal Law § 65.10(2); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(7); Opinions 12-139; 92-53 (Vol. IX).

Opinion:

         The inquiring judge says his/her justice court has recently found it difficult to place defendants, who have been sentenced to community service, with local not-for-profit organizations.¹ The judge asks whether it is ethically permissible for the court to “run local newspaper or radio ads” inviting local not-for-profit organizations “who would benefit from and be willing to accept” individuals sentenced to perform community service and “submit reports to the court” to so notify the court. The advertisement would not promise to place any defendants with such organizations.

         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 shall be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]) and shall dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]).

         This inquiry is one of first impression for the Committee.² Given that judges may lawfully impose community service obligations under specified circumstances to the extent authorized by law (e.g., Criminal Procedure Law §§ 170.55[6], 390.30[6]; Penal Law § 65.10[2]), the Committee does not see any appearance of impropriety were a court to invite all local not-for-profit organizations to express their interest in accepting such placements, provided the advertisement does not reasonably create an impression that defendants will be placed with organizations that are not eligible to accept such placements.

         Therefore, the Committee concludes that the Rules Governing Judicial Conduct do not prohibit a justice court from advertising for local not-for-profit organizations willing to permit the court to place defendants with them in order to complete their sentences of community service.

         The Committee notes that it cannot comment on the wording of the proposed advertisement or on any administrative or legal requirements that the inquiring judge may need to consider (see Judiciary Law § 212[2][l]).

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     ¹ Judges may impose community service as a sanction for certain offenders in conjunction with specific dispositions imposed by a criminal court (see e.g. Criminal Procedure Law §§ 170.55[6] [as a condition of an Adjournment in Contemplation of Dismissal]; 390.30[6] [as a condition of probation]; Penal Law § 65.10[2] [in addition to incarceration or with restitution]).

     ² The Committee has previously advised that a part-time judge may serve on the board of a county alternatives to incarceration program (see Opinions 12-139; 92-53 [Vol. IX]). To the extent relevant here, one of the functions of such advisory boards is to identify eligible alternatives to incarceration, including community service programs (see Executive Law § 261[1][b]).