Opinion 26-48

March 26, 2026

Digest:  A town justice may impose a sentence that requires a defendant to perform community service with the town highway department, provided it is lawful to do so.  We cannot comment on legal issues and thus cannot advise on the propriety of a proposed memorandum of understanding and participant’s contract.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(1); 101.1; Opinions 19-61; 13-42; 94-80.

Opinion:

          The town justice recently approved a plea bargain for a minor defendant, which required community service with the town highway department.  However, the judge “delayed execution of the sentence until a set of standards governing the nature of the service and the conduct of the officials overseeing service was developed.”  The proposed memorandum of understanding to “describe, initiate, supervise, and maintain” the proposed community service program is set up for signature by the judge and three other town officials.  In response to the town attorney’s concern that “there was no clear commitment on the part of the defendant post-sentence,” a one-page “Participant’s Contract” was developed for signature by the defendant and a briefing official.  The judge asks if the program, as outlined in the memorandum of understanding and the participant’s contract, is ethically permissible and seeks guidance regarding any proposed changes.

          A judge must always avoid even the appearance of impropriety (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 also must “respect and comply” with the law (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).  Indeed, we have specifically advised 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 it is lawful to do so” (Opinion 19-61).  We see no reason to question the judge’s conclusion here that community service may be allowed for the offenses described.  Thus, we perceive no ethical impropriety if he/she lawfully sentences a defendant to perform community service with the town highway department as part of a plea bargain.

          However, we cannot comment on any legal issues, including the propriety of the proposed memorandum of understanding and participant’s contract (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; Opinions 19-61; 13-41; see also Opinion 94-80 [noting that we cannot “undertake a comprehensive review” of a contract]).