Opinion 19-61

May 2, 2019

Digest:         The Rules Governing Judicial Conduct do not preclude a town justice from requiring a defendant to perform community service with the town government, provided it is lawful to do so.

Rules:          Penal Law § 65.10(2)(h); CPL § 170.55(6); Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1); Opinions 16-91; 13-42; 07-22.

Opinion: 

         A town justice asks if he/she may sentence a defendant to perform community service with the town government, such as “at the town landfill, park or other places currently taken care of by town employees.” As the judge notes, the town board sets and pays the judge’s salary.

         A judge must always avoid even the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity, independence, and impartiality (see 22 NYCRR 100.1; 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge also must respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]).

         As we have recognized, “judges may lawfully impose community service obligations under specified circumstances to the extent authorized by law” (Opinion 13-42). Although our prior opinions refer to possible community service placements with “local not-for-profit organizations” (Opinion 16-91; accord Opinion 13-42), some statutes refer to “a public or not-for-profit corporation, association, institution or agency” (CPL § 170.55[6]; accord Penal Law § 65.10[2][h]).

         We can see no ethical impropriety if a town justice lawfully sentences a defendant to perform community service with a governmental agency or department, including the town government.¹ Accordingly, we conclude that the Rules Governing Judicial Conduct do not preclude a town justice from requiring a defendant to perform community service with the town government, provided that it is lawful to do so. We cannot comment on any legal questions (see e.g. Judiciary Law § 212[2][l]; Opinion 07-22).

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¹ Somewhat analogously, a judge may approve a plea agreement that “is consistent with such statutory provisions and decisional law, and is fair and appropriate in light of the substantive facts of the case” (Opinion 07-22), even if the proceeds may accrue to the town (id.).