Opinion 26-26

March 26, 2026

Digest:  (1) A judge may encourage youth part defendants to comply with the law, pursue productive goals, and avoid recidivism, provided such remarks are not delivered ex parte and otherwise comport with ethical requirements.  (2) The specific letter proposed here is impermissible.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(4); 100.3(B)(6); Opinions 25-157; 23-127; 19-21; 16-09; 15-139/15-140; 15-101; 14-151; 09-11; 91-132.

Opinion:

          The inquiring judge presides in a youth part.  At sentencing, the judge tries to offer “words of encouragement and hope—urging youth to comply with the law, pursue educational and career goals, and avoid recidivism.”  Although the judge understands such remarks “may be made on the record,” the judge is concerned that “many youth are unable to meaningfully hear or process anything beyond the sentence itself in that moment.”  Accordingly, the judge asks if he/she may “provide youth defendants with a brief written letter conveying these sentiments at the time of sentencing.”  The proposed letter is personally addressed to the defendant and includes the following:

I believe in you.  Even though I must give you this sentence, I believe you have the power to do great  things with your life. You are not defined by your worst mistake. I believe you can step away from people who drag you down. I believe you can become someone you and your family will feel proud of. …  You can make good choices from here on out. If you do, your life can be full of happiness and peace. I know you are capable of this, and I look forward to seeing who you decide to become.

If it is not permissible to hand such a letter directly to the defendant, the judge asks if he/she may give it to counsel or mark the letter as a court exhibit.

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must neither lend judicial prestige to advance any private interests nor “testify voluntarily as a character witness” (22 NYCRR 100.2[C]).  In performing judicial duties, a judge may not manifest bias “against or in favor of any person” (22 NYCRR 100.3[B][4]).  Generally, a judge must refrain from ex parte communications unless an exception applies (see 22 NYCRR 100.3[B][6]).

          We recognize that judges traditionally make remarks in open court during sentencing, and such remarks may cover a range of topics consistent with the judge’s adjudicative role, such as encouraging defendants to comply with the law, pursue productive goals, and avoid recidivism.  We have also advised that a judge may congratulate successful youth part participants with a handwritten note where the correspondence is a “simple letter of congratulations” that does “not undermine public confidence in the integrity and impartiality of the judiciary” (Opinion 23-127). 

          Here, by contrast, we have a specific proposed letter which goes well beyond simple congratulations and which the judge proposes to hand to individual defendants.  Although this question appears to be a matter of first impression, many prior opinions address the risks of partiality in a judge’s communications with court participants at various stages of a proceeding.  For example, we have recognized that a judge’s pre-plea letter advising a defendant that “‘we all have the same goal’ of ‘having your property conform to the Town Code’” could potentially “create an impression that the judge has prejudged the defendant’s guilt” (Opinion 25-157).  We have also advised that a judge may not send a form letter to defendants who plead guilty by mail advising them sua sponte that they may change their plea to “not guilty” and either conference the matter with the prosecutor or negotiate a reduced plea (see Opinion 16-09).  We explained that such a letter is “impermissibly defense-oriented in that it sua sponte rejects or strongly discourages legally permissible mail-in pleas … in an effort to protect defendants” and its “apparent recommendation that defendant motorists change their plea to ‘not guilty’ could readily create an impression that the judge has already determined that the defendant will be able to either (a) prevail on the merits and/or (b) negotiate a favorable plea reduction” (id.). 

          A judge must exercise caution even after a matter has been adjudicated.  For example, we advised that a judge “may not suggest or recommend that an inmate make an application to the governor’s office of clemency,” as such a role “goes beyond the judge’s role as a neutral arbiter” and “would create an appearance of partiality” (Opinion 19-21).  A judge also may not agree to meet with a crime victim after a concluded criminal trial “to thank the judge for considering the victim’s views at the time of sentencing” (Opinion 09-11; see also Opinion 91-132 [judge may not accept invitation from child of murder victims to attend a thank-you luncheon for friends and neighbors]).  We concluded that the judge’s proposed personal interaction with a litigant concerning the subject matter of the case would at least create an appearance of impropriety (see id.).

          Somewhat analogously, we have advised that a judge who presides over “a treatment-oriented problem-solving court” may not serve as a reference for an individual who appeared there “as a defendant/participant” (see Opinion 14-151).  In so advising, we explained (id. [citations omitted]):

While the procedure followed in treatment-oriented problem solving courts is likely to promote closer, more personal relationships between the presiding judges and the defendants, the judges still must uphold the independence of the judiciary and must not lend the prestige of judicial office to advance the private interests of others.

We adhered to this advice despite requests to reconsider it (see Opinions 15-139/15-140; 15-101).

          In our view, the statements in this judge’s proposed letter would create an appearance of partiality toward the defendant.  A reader would reasonably perceive this letter to express the judge’s personal opinions about the defendant’s character and future prospects.  Further, its portrayal of the judge as a reluctant or unwilling participant in the defendant’s sentencing may undermine public confidence in the integrity and impartiality of the judiciary.

          Indeed, once separated from the context of the youth part proceedings, this judge’s proposed standalone letter could easily be misinterpreted as an endorsement of the defendant.  It could serve as a de facto letter of recommendation for a defendant based on his/her appearance before the judge (see Opinions 15-139/15-140; 15-101; 14-151).

          Accordingly, we conclude that the judge may not use the proposed letter.  As always, the judge should ensure that any closing remarks at sentencing comport with the Rules Governing Judicial Conduct.  For example, the remarks should be consistent with the judge’s judicial role and must not be delivered ex parte (see 22 NYCRR 100.3[B][6]).