The New York Advisory Committee on Judicial Ethics has issued an opinion stating that a judge may not order a criminal defendant to donate money to a not-for-profit agency instead of completing their community service obligation.
Opinion 25-144 addresses a scenario where a defendant, declared delinquent for failing to complete a court-ordered community service sentence, seeks to make a monetary donation in lieu of service. The proposed arrangement would involve the judge modifying the conditional discharge upon the defense counsel’s request and with the district attorney’s consent.
The donation, set at a rate of $10 per community service hour owed, would be paid to the probation department for a specified not-for-profit agency chosen by the judge via a rotational system from a list of agencies participating in the court’s community service program.
The Committee found that such an order would violate several rules governing judicial conduct. The opinion emphasizes that judges must avoid impropriety and maintain public confidence in the judiciary’s integrity and impartiality. They must also uphold the law, maintain professional competence, and refrain from using their office’s prestige to advance private interests.
The Committee noted that judges must not personally solicit funds or use the prestige of their office for fundraising, referencing 22 NYCRR 100.4[C][b][i] and [iv]. The opinion draws upon previous opinions, including 14-152 and 14-127, and legal cases such as People v Appel (141 AD2d 374 [1st Dept 1988]) and People v White (119 AD2d 708 [2d Dept 1986]).
The Committee also referenced Opinion 14-127, which addressed a judge’s proposal to conduct a book drive or solicit book donations for use as a sentencing tool. The Committee had advised against soliciting even non-cash donations.
The opinion concludes that, absent legislative authorization, directing a defendant to make a monetary donation would create the appearance of the judge personally soliciting funds or lending judicial prestige for fundraising purposes.
Furthermore, allowing defendants to “buy out” their community service sentences would undermine public confidence in the judiciary’s integrity. While the committee acknowledged that the lawfulness of the proposed order was beyond their purview, they cited Judiciary Law § 212[I] and Opinion 14-152, noting concerns about sentences involving unlawful or unauthorized donations.
