Opinion 25-144

November 6, 2025

Digest:  A judge may not issue an order directing a criminal defendant to make a monetary donation to a not-for-profit agency in lieu of his/her community service obligation, even if such request is made by defense counsel with the consent of the prosecution.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.4(C)(3)(b)(i), (iv); Opinions 14-152; 14-127; People v Appel, 141 AD2d 374 (1st Dept 1988); People v White, 119 AD2d 708 (2d Dept 1986).

Opinion:

          A judge who presides in criminal cases asks if he/she may order “a Donation in Lieu of Community Service” in instances where a defendant has been declared delinquent for failing to complete a court-ordered sentence of community service.  The judge would enter such an order modifying the conditional discharge only at the request of defense counsel and on consent of the district attorney.  The one-time donation would be paid to the probation department for the benefit of a specified not-for-profit agency at the rate of $10 per community service hour owed.  The judge would determine which not-for-profit agency by rotation, using the list of agencies that participate in the court’s community service / alternatives to incarceration program.  

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]) and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]).  Additionally, a judge must not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) and must not use or permit the use of the prestige of judicial office for fund-raising purposes (see 22 NYCRR 100.4[C][3][b][iv]).

          The prohibition on fund-raising and solicitations applies even in the context of sentencing.  For example, in Opinion 14-127, a judge proposed to “conduct a book drive or to solicit publishers or book sellers to donate books for use as a sentencing tool in certain cases.”  As a condition of parole or probation, the judge “would require a defendant to read a book and provide a report about it” (id.).  Notwithstanding this purpose, we advised that the judge may not solicit even non-cash or in-kind donations.

          Likewise, absent any legislation authorizing the proposed arrangement, a judicial order directing a delinquent defendant to make a monetary donation to a not-for-profit agency would, at the very least, create an appearance that the judge was personally soliciting funds and/or lending judicial prestige for fund-raising purposes (see 22 NYCRR 100.4[3][b][i], [iv]).  Further, the practice of allowing defendants who are delinquent in completing their community service sentences to “buy out” their community service obligation would give rise to an appearance of impropriety and undermine public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  Accordingly, we conclude this judge may not issue an order directing a criminal defendant to make a monetary donation to a not-for-profit agency in lieu of his/her community service obligation, even if such request is made by defense counsel with the consent of the prosecution.

          While the lawfulness of the proposed order or sentence is beyond our authority to address (see Judiciary Law § 212[2][l]), we also note that an administrative judge has previously expressed a “concern[] that ‘sentences which involve donations are unlawful or not authorized by statute’ in New York” (Opinion 14-152; see also People v Appel, 141 AD2d 374, 374-375 [1st Dept 1988]; People v White, 119 AD2d 708, 709 [2d Dept 1986]).  In response to that concern, we advised that “if a judge determines that a particular fine, contribution, or donation required as part of a proposed plea bargain is unauthorized by law or is outside the permissible monetary parameters set by relevant statutes or case law, the judge must not approve the arrangement or otherwise impose an unlawful sentence” (Opinion 14-152; 22 NYCRR 100.3[B][1]).