Community service as a sentencing option

“Mr. Defendant, you are hereby sentenced to a conditional discharge with a condition thereof being completion of 50 hours of Community Service.”

As you leave the courtroom your client inundates you with a barrage of questions:
• What is this requirement of Community Service all about?
• What if I don’t want to do the Community Service?
• What type of Community Service do I have to do?
• Can I work at my brother’s landscaping business to complete my Community Service?
• My friend is charged with burglary, can he get Community Service too?
• Can the Judge mandate that I do Community Service?
• What if I don’t complete the Community Service?

As you listen to your client’s questions you may ask yourself, “Does the Court have the authority to make Community Service part of my client’s sentence?” You may also ask, “What is the standard custom and practice used by the Courts and the District Attorney’s Office regarding Community Service in Nassau County?” Hopefully this article will provide answers to all of the aforementioned questions.

What Is Community Service?
As it pertains to alternative sentencing, Community Service requires those convicted of violations and certain crimes to work at a public or not for profit corporation, association, institution or agency, usually in the sentencing jurisdiction, either entirely or partly in lieu of other judicial remedies and sanctions, such as incarceration or fines. For example, a fine or jail sentence may be reduced in exchange for a prescribed number of community service hours. The Court may allow the defendant to choose what community service he would like to do which then must be documented by credible agencies, or may require community service to be performed through a particular agency, program or the probation department.

Sometimes the community service is specifically targeted to the defendant’s crime. For instance, when a defendant is convicted of making graffiti (P.L. §145.60) or possession of graffiti instruments (P.L. §145.65) his community service may require him to remove graffiti. In addition, a defendant convicted of DWI might be mandated to appear before school groups to explain the dangers of driving while intoxicated.

Aside from reducing the costs of incarceration and jail overcrowding, part of the philosophy behind a sentence of community of service is that providing a service to the community is more beneficial then incarceration. Through community service, the community sees a benefit and it is thought to be a way to educate the defendant on what constitutes ethically acceptable behavior.

Statutory Authority Many statutes authorize, promote and regulate the imposition of community service as a sentence. These statutes can be found in the Criminal Procedure Law, Environmental Conversation Law, Executive Law, Human Rights Law, General Municipal Law, Labor Law, Parks, Recreation and Historic Preservation Law, Penal Law and the Vehicle and Traffic Law. Only some of these provisions will be discussed herein. The main section of law, as it relates to community service as a sentence is found in the Penal Law. Penal Law §65.10 (2)(h)

Penal Law §65.10 (2)(h)
• Authorizes the imposition of community service to consenting defendants convicted of a violation, misdemeanor or class D or E felonies, or any youthful offender finding replacing any such conviction where such individual is sentenced to either probation or a conditional discharge.
• Establishes that community service may include services for the maintenance and repair of real or personal property maintained as a cemetery plot, grave, burial place or other places of interment of human remains.
• Establishes that community service shall be for a public or not-for-profit corporation, association, institution or agency, including but not limited to services for the office of alcohol and substance abuse or in an appropriate community program for removal of graffiti from public or private property including property damaged in the underlying offense. o
• Performance of community service shall not result in the displacement of employed workers, impairment of existing contracts or shall said services be required or permitted in any establishment involved in a labor strike or lock out.
• Recognizes that a Court may establish provisions for early termination of a sentence of probation or conditional discharge pursuant to the provision of §410.90(3) of the Criminal Procedure Law, after community service has been completed.
• Although not expressly enumerated in this section, any criminal court, local conditional release commission or board of parol, whichever is applicable, may impose community service as a condition of an adjournment in contemplation of dismissal in cases involving marihuana, local conditional release, parol or state conditional release.

Penal Law §60.28
• Establishes specific community service when a person is convicted of making graffiti or possession of graffiti instruments or an attempt to commit such offenses, participation in a graffiti removal program, where appropriate, shall be a condition of any sentence of probation or conditional discharge imposed.

Penal Law §60.29
• Establishes community service when a person is convicted of cemetery desecration in the first or second degree or an attempt to commit such offenses, participation in community service relating to cemetery maintenance or repair, where appropriate, shall be a condition of any sentence of probation or conditional discharge imposed.

Criminal Procedure Law §170.55
• Authorizes criminal courts to require, as a condition of an adjournment in contemplation of dismissal (ACOD), that a consenting defendant perform services for a public or not for profit corporation, association, institution or agency. Vehicle And Traffic Law §1193
• Requires that a person convicted of a DWI, after having been convicted of a DWI within the previous five years, in addition to any other penalty which may be imposed, must be sentenced to five days imprisonment or as an alternative to incarceration, 30 days of community service.
• Requires that a person convicted of a DWI, after having been twice convicted of a DWI within the previous five years, in addition to any other penalty which may be imposed, must be sentenced to ten days imprisonment or as an alternative to incarceration, 60 days of community service.

Labor Law §132
• Prohibits 16- or 17-year-olds from performing service during school hours (“when attendance upon instruction is required by the Education Law”), except in narrow circumstances or in violation of any employment certificate or permit which must be issued in accordance with the education law. When school attendance is not required, such youth may perform casual employment consisting of yard work and household chores in and about a residence or the premises of a not-for-profit, non commercial organization, not involving the use of power-driven machinery other than power driven machinery ordinarily used in such yard work or household chores.

Labor Law §133
• Enumerates numerous work activities that youths are barred from performing. Examples of barred activities include, but are not limited to, construction work (including wrecking, demolition, roofing or excavating operations and the painting, or exterior cleaning of a building structure from an elevated surface) any occupations involving operation of power-driven hoisting apparatus power driven wood working, metal-forming, metal-punching, metal-shearing, bakery, and paper products machines, circular saws, band saws and guillotine shears; adjusting, cleaning, oiling or wiping machinery, or preparing any composition in which dangerous or poisonous acids are used.

The Administration of Community Service In Nassau County
Sentences in Nassau County often require a defendant to perform a number of hours of community service. Although Family Court, local Village, Town and City Courts can and do utilize community service as part of a sentence, this article will be limited to the Nassau County District and County Courts.

Prior to District Attorney Kathleen Rice being elected to office, community service was rarely used as part of a sentence. At that time Prosecutors had no way of insuring that the service was complete or that it was of value to the community. The burden of finding a community service opportunity for the defendant and monitoring completion fell upon the defense attorney.

In July 2008, District Attorney Rice contracted with the non-profit Education and Assistance Corporation, Inc., (EAC) to develop a way to more frequently use and more efficiently tailor and monitor community service.

In addition to EAC, community service can be administered through the Nassau County Probation Department. The type of sentence (Pre-sentence, conditional discharge or probation) determines which of these agencies enforces the community service requirement.

Pre Sentence and Conditional Discharge
All cases in which community service is required prior to sentence or as part of a conditional discharge are administered through the EAC Community Service Program. The client is referred to this program by the District Attorney completing a Nassau County District Attorney Referral Form and by the defendant signing the Community Service Participant Agreement. The District Attorney Referral Form sets forth whether the community service requirement is part of a conditional discharge, ACOD or is pre-plea. It includes the name of the Assistant District Attorney, Judge, defense attorney, top original charge and disposition charge, the number of community service hours required to be performed and the Part in which the case is pending.

The defendant, as part of the Community Service Program Participant Agreement, must list his name, address and telephone numbers. By signing this agreement he acknowledges that he is required to perform a specific number of hours of unpaid community service for a public, tax supported or non-profit agency selected by the EAC Community Service Program. The defendant agrees that it is his responsibility to contact EAC immediately after the court date in which community service was mandated. By signing the participant agreement, the defendant also acknowledges that he understands that failure to contact the community service program within 24 hours or failure to keep any scheduled appointments relative to the referral will result in his case being returned to the District Attorneys Office.

Of course only the named defendant may perform all of the required hours of community service. The agreement states that the defendant cannot have a surrogate perform the hours for him.

If the community service requirement is pre-sentence and the defendant fails to complete all of the required hours, the Court is free to withdraw any sentencing commitment and impose any other sentence allowed by law. If the defendant does not complete all of the required community service hours as part of a conditional discharge and/or ACOD the District Attorney’s Office may file a violation of the conditional discharge or, pursuant to the ACOD, the Court may upon application of the District Attorney restore the case to the calendar and the case would proceed as if an ACOD had not been granted.

As everything else in life, participation in the EAC Community Service Program is not free. If the defendant is represented by a private attorney and is required to perform more then 35 hours of community service he must pay a $200 fee to EAC. If the number of hours required to be performed is less then 35 hours the fee is $150. If the defendant is represented by legal aid or an 18B Attorney the fees are half. Full payment must be received before a defendant is placed at a volunteer worksite.

Probation EAC does not accept defendants into it’s community service program who have received probation as part of their sentence. In those instances the Nassau County Probation Department finds a community service opportunity for the defendant and monitors participation and completion of the required number of hours.

After a defendant is sentenced to probation the Community Service Unit of the Nassau County Probation Department gets notification that community service is part of the sentence. The Probationer is interviewed and Probation determines the appropriate placement based upon the crime for which the defendant was charged, criminal background and whether the probationer has a car or must use public transportation.

Most of the placements through the Probation Department are with local churches, the Nassau County Parks Department and the Salvation Army. Placement however can take place at any governmental agency or non-profit corporation as long as the probationer “is doing something constructive.”

In 2009 the Nassau County Probation Department placed 151 males and 35 females in community service opportunities. Of these 86 were for felonies and 100 were for misdemeanors. The majority of defendants that were placed were between the ages of 25 and 34 although ages of defendants ranged from 16 to above 65.

In the event a defendant does not perform the required community service hours he would receive a call from his probation officer. The individual is given “a second chance” to become compliant. If your client does not take advantage of this opportunity the Probation Officer will file a Violation of Probation. At that point you will appear before the sentencing Judge to make pitch for another chance or some other sentence.

District Court vs. County Court
Community service is frequently mandated as part of a sentence in the District Court. EAC is much more widely utilized here as most sentences do not include probation. The procedure utilized is straight forward and simple so long as the defendant contacts the EAC Community Service Program.

Community service is much less frequently utilized in the County Court. The reasons stem from the limited crimes which are eligible for community service (Penal Law §65.10(2)(h)) and the degree of the crimes.

Conclusion
Community service has become a widely utilized and commonplace part of sentences especially in the Nassau County District Court. The use of community service as part of a sentence is favored by the Nassau County District Attorney’s Office and many Judges in this county. In various circumstances it can be used as an alternative to incarceration or probation or in lieu of fines in the event the client is unable to pay same. The use of community service benefits many governmental agencies and non-profit organizations and instills values and promotes insight to defendants who are required to perform this type of service.

Mark Silverman is a partner at Silverman & Taylor, PLLC in Freeport, New York. He is a former Nassau County Assistant District Attorney and founder of Community Service Referral Network of America (http://csrna.org/).