Is it time to impeach judge Carl F. Becker of the Delaware County Court, New York, for "eeking out a victory" at his re-election in 2012 by misrepresenting his reversal record?

In 2011 I made a motion to vacate all orders of Judge Carl F. Becker because I did not find in the records of the Delaware County Clerk Judge Becker's certificate of his election from 2002, as was required by County Law.


In response to my motion, Judge Becker did the following:


(1) filed a certificate of election in March of 2011;
(2) sanctioned me for making motions to vacate two times out of three similar motions made, in the following order:


     (a) June 30, 2011 - Judge Becker found such a motion frivolous in Adams v. Bracci, Delaware County Family Court;


     (b) August 2, 2011 - Judge Becker found such a motion frivolous in Shields v. Carbone, Delaware County Supreme Court;


     (c) December 16, 2011 - Judge Becker found such a motion not frivolous in Mokay v. Mokay, Delaware County Supreme Court, but did not go back and did not vacate his sanctions in the previous two decisions where he found the same motions to be frivolous.


       Now, the legality of Judge Becker's certificate of election filed in March of 2011 appears to be very questionable.


      In the summer of 2010 I have filed a freedom of information request (FOILed) the Delaware County Board of Elections and asked them for records indicating whether original petitions and ballot pertaining to the 2002 election of Judge Becker were still on file.


     On August 17, 2010 I received the following letter from the Delaware County Board of Elections:


      " Dear Ms. Neroni:


      We have received your foil /sic/ request regarding the 2002 Election for County Judge.  According to Election Retention 90076 and 90087 we do not retain petitions or ballots past two years of an election.


      Enclosed is a copy of the Election Results from the 2002 General Election.  We do not have electronic information from that time.




      Sincerely,
      Robin Alger
      Deputy Commissioner
      Delaware County Board of Elections"


    Attached to the letter was an uncertified copy of election results.


    County Law 400.5 requires the candidate who has won the election to file the certificate of election with the County Clerk before he takes on his office.


    That was not done by Judge Becker in 2002, and in 2011, in response to my motion to vacate challenging the judge's legitimacy, the judge filed a certificate of election, while the Delaware County Board of Elections advised me that the originals to certify that election from, have been gone since 2004.


    Now, anybody but the judge would, probably, be criminally charged for filing a document certified from uncertified copies while originals were already gone.   Judge Becker remained on the bench until his reelection in 2012 and was even promoted to be Acting Supreme Court justice, where he assigned himself to all of my cases and sanctioned me and my husband in all of them, as I described earlier in my blog.


    Yet, in my legal opinion, the question of legitimacy of Judge Becker remains.


     As an attorney and a notary myself, I would not have been able to certify a document without supporting originals.  I would not have been able to certify his elections from an uncertified copy of results, while original petitions and ballots were already gone.  I believe that such certification was legally invalid and filing such a certification was unlawful.


    During Judge Becker's election campaign of 2012 I was on a prolonged sick leave and could not pay attention to what was going on.


    Moreover, because of sanctions imposed upon me by Judge Becker in 2011 I was simply scared to raise my voice against election of Judge Becker.


     There is a rule in New York, as is in all other jurisdictions punishing attorneys for "falsely" criticizing judges or "judicial candidates", with what is "false" is construed by the courts very broadly, in fact, anything an attorney might say to criticize the judge comes out false in a disciplinary action against the attorney.  That rule exist in parallel with another rule, mandating the same attorneys to report judicial misconduct, or, in other words, falling on a sword.


    Apparently, it is a violation of a New York Rule of Professional Conduct to criticize a judge "falsely", read to mean "criticize the judge at all", and it is a violation not to criticize and not to report judicial misconduct.  A very convenient rule, you can "get" an "inconvenient" attorney no matter what he (or she, in my case) does.


     I noticed only two attorneys speaking about Judge Becker in reference to his re-election campaign of 2012, Andrew Van Buren in support of Judge Becker, and I in opposition of Judge Becker and in support of Judge Becker's opponent Judge Gary Rosa.


      Andrew Van Buren's letter in support of Judge Becker was placed on Judge Becker's re-election website.  Obviously, Attorney Van Buren was not subject to attorney discipline for praising Judge Becker.


     As to my letter in opposition to Judge Becker in the local newspaper The Daily Star in Oneonta, NY, the Professional Conduct Committee immediately started an inquiry as to propriety of what I said, and I recently received a mysterious set of letters from the Professional Conduct Committee in regard to that inquiry:


      (1) one letter saying that the Committee made an intent to admonish me, without an explanation why, but that I have 14 days to ask to reconsider; and

     (2) another letter saying that I was already given time to reconsider, failed to respond and am now being admonished, with the aggravating factor being used because I was allegedly admonished in 2002 (7 years before I was admitted to the bar).


      Obviously, I am subject to discipline for criticizing Judge Becker.


      Also, the following curious events occurred during Judge Becker's re-election campaign of 2012.


      On October 18, 2012 the Appellate Division 3rd Department affirmed Judge Becker's sanctions against me in a case called Shields v. Carbone from Delaware County Supreme Court, where the plaintiff was and still is Beverly Shields, the Delaware County Treasurer.


     Within two weeks of that decision, I receive an unsolicited letter from Judge Becker's re-election campaign with a colorful flyer featuring Beverly Shields as one of the supporters of Judge Becker for re-election.


     Beverly Shields stated the following in that flyer:


      


     
        I would like to call the readers' attention to the following details of Beverly Shields' supportive statement:


       (1) she addresses Judge Carl F. Becker by his nickname, as "Fritz";  I have not heard any attorneys or parties calling Judge Becker by his nickname in or out of courtroom, nor did my husband who is Judge Becker's law school classmate and knows him for over 40 years;


      (2) she states that Judge Becker "[is] often at his chambers after-hours, working nights and weekends";  now, such information would be available only to a close personal friend.


      Two weeks before Judge Becker used this statement in sending out this flyer, a flyer from his official re-election campaign, sanctions imposed upon me by Judge Becker specifically for asking Judge Becker to step off a case because he was too close to the Plaintiff (due to Judge Becker's 27 years of experience, I did not know about this close personal relationship with the Plaintiff at that time), were affirmed on appeal.   Apparently, Judge Becker believed that I will not be able to undo what he did to me and he could flaunt his close friendly relationship with a plaintiff in the case where he presided in my face.


    Yet, information about Beverly Shields as Judge Becker's personal friend was never in front of the appellate court and was never discoverable by me, unless the court would charge me as an attorney of record with a duty to hire a private investigator to follow a judge around and to see who is privy to his "after-hours" and "weekend" work schedule.


    After sanctions against me were affirmed on appeal, a local town justice, Judge Glen George, was taken off the bench for presiding over cases of his friends, one month before his retirement, and the determination was later confirmed  by the New York State Court of Appeals.


    I wonder why Judge Becker should be treated any different for what he did to me while presiding over his friend Beverly Shields' case.


    Yet, it is not just my personal claim against Judge Becker that made me write this post.


    During preparation for a motion, I have reviewed a transcript of a proceeding where Judge Becker accuses me of appealing everything and anything, not necessarily with merit.  I was surprised with the tone and the frustration because I do not appeal more than anybody else, I do win on appeals fairly often, and I am certainly not the only one appealing Judge Becker's decisions.


    Yet, I recalled Beverly Shields' statement in the flyer that "Appeals courts rarely turn over Judge Becker's decisions, and that's not surprising to me at all.  I know how hard he studies and researches his cases, to make those decisions right".  





    Now, first, how does Beverly Shields know how hard Judge Becker works unless she is working with him?


    As to reversal record of Judge Becker,  I decided to check it out on Westlaw, and here is what I found as to reversals and modifications of Judge Becker's decisions from the time he came to the bench in 2003 to present time:

No.	Case Name	Date	Reversed or Modified	Reason	Appellant’s attorneys
1	People v. Miller, 11 A.D.3d 729, 783 N.Y.S.2d (3dr dept., 2004)	October 21, 2004	Reversed and remitted	Ineffective assistance of counsel	David Roosa, Sidney
2	People v. Van Buren, 4 N.Y.3d 640, 830 N.E.2d 1130 (N.Y., 2005	May 10, 2005	NY Court of Appeals reversed decision of 3rd Department which affirmed Judge Becker's decision	Erroneously dismissed traffic ticket to an attorney issued by environmental police	Andrew Van Buren, Hobart, Pro Se
3	Edward S. v. Kelly S., 18 A.D.3d 976, 795 N.Y.S.2d (3rd Dept., 2005)	May 12, 2005	Reversed and remitted 2 orders	Erroneous dismissal of father's petition for substantial change of circumstances for failure to state a cause of action without a hearing	Lo Pinto, Schlather, Solomon & Salk, Ithaca (Diane V. Bruns of counsel)
4	In re Jessica GG., 19 A.D.3d 765, 797 N.Y.S.2d (3rd Dept., 2005)	June 9, 2005	Reversed and remitted	Family Court's admonition to minor that she had the right, but was not required, to testify at fact-finding hearing did not satisfy requirement that minor be advised of right to remain silent at proceeding to adjudicate her a person in need of supervision (PINS).	Jehed Diamond, Delhi, attorney for the child in PINS (persons in need of supervision) proceedings
5	Smith v. Smith, 24 A.D.3d 822, 804 N.Y.S.2d (3rd Dept., 2005)	December 1, 2005	Reversed	Appellate court vacated order of protection against the father	Theresa Mulliken, Harpersfield
6	People v. Abuiz, 31 A.D.3d 889, 817 N.Y.S.2d (3rd Dept., 2006)	July 13, 2006	Affirmed as modified	Appellate court reversed defendant's convictions of criminal possession of a weapon in the fourth degree under counts 2, 4, 6, 8, 10, 12 and 14 of the indictment; matter remitted to the County Court of Delaware County for a new trial on said counts;  Judge Becker usurped the jury's fact-finding function in response to jury inquiry,  factually directed a verdict of guilt as to criminal possession of a weapon in the fourth degree in the event that the jury found defendant guilty of criminal possession of a weapon in the third degree	Rosemarie Richards, Gilbertsville
7	Sparling v. Robinson, 35 A.D.3d 1142, 826 N.Y.S.2d (3rd Dept., 2006)	December 28, 2006	Reversed	(1) mother's failure to have child return several telephone calls from father and members of father's household, and reference to father in derogatory terms, did not amount to change in circumstances warranting modification of custody order, and (2) modification of custody order to grant father sole custody of child was not in child's best interests.	Jehed Diamond, Delhi
8	Tanner v. Tanner, 35 A.D.3d 1102, 826 N.Y.S.2d (3rd Dept., 2006)	December 28, 2006	Reversed and remitted	Denial of incarcerated petition for visitation with the child without a hearing	Theresa Mulliken, Harpersfield
9	Meier v. Key-Meier, 36 A.D.3d 1001, 828 N.Y.2d (3rd Dept., 2007)	January  4, 2007	Affirmed as modified	Appellate Court reversed denial of counsel fees to father	Rosemarie Richards, Gilbertsville,  Andrew Van Buren, Hobart
10	Armstrong v. Heilker, 47 A.D.3d 1104, 850 N.Y.S.2d (3rd Dept., 2008)	January 17, 2008	Affirmed as modified and remitted	Appellate court reversed order directing mother to submit to mental health evaluation by expert chosen by father	Jehed Diamond, Delhi
11	Amato v. Amato, 51 A.D.3d 1123, 857 N.Y.S.2d (3rd Dept., 2008)	May 1, 2008	Reversed and remitted	Failure to appoint an attorney for the child	Andrew Van Buren, Hobart
12	Gil v. Gil, 55 A.D.3d 1024, 870 N.Y.S. 2d (3rd Dept., 2008)	October  16, 2008	Affirmed as modified	Appellate court vacated stay away provisions of the order of protection against the father as unsupported by the record	James M. Hartmann, Delhi
13	Hills v. Madrid, 57 A.D.3d 1175, 869 N.Y.2d (3rd Dept., 2008)	December 18, 2008	Affirmed as modified	Appellate Court vacated award of sole custody to the mother as not supported by the record, restored joint legal custody	Cynthia J. Tippins, East Greenbush
14	Adams v. Bracci, 61 A.D.3d 1065, 876 N.Y.S.2d (3rd Dept., 2009)	April 2, 2009	Affirmed as modified	Appellate court vacated award to father of sole custody where father did not request such a relief in petition, no notice to pro se mother	Paul J. Connolly, Delmar
15	People v. Beames, 71 A.D.3d 1300, 896 N.Y.S.2d (3rd Dept., 2010)	March 18, 2010	Reversed and remitted	trial court's findings of fact and conclusions of law were insufficiently detailed to permit intelligent appellate review, and (2) mitigating circumstances did not support downward departure in defendant's presumptive sex offender risk level classification	Theresa Mulliken, Harpersfield
16	People v. Hull, 71 A.D. 3d 1336, 898 N.Y.S.2d (3rd Dept., 2010)	March 25, 2010	Reversed and remitted	Ineffective representation of counsel	Jonathan I. Edelstein, New York City
17	In re Village Of Fleischmanns, 77 A.D. 3d 1146, 909 N.Y.S.2d 564 (3rd Dept., 2010)	October 21, 2010	Reversed	Village was not equitably estopped from foreclosing	Bond, Schoeneck & King, P.L.L.C., Albany (Robert H. Feller of counsel)
18	Moore v. Sloan, 88 A.D.3d 1193, 932 N.Y.S.2d (3rd Dept., 2011)	October 27, 2011	Affirmed as modified	Appellate court vacated order without a hearing that granted mother sole medical decision-making authority	Theresa Mulliken, Harpersfield
19	Geywits ex rel. Geywits v. Charlotte Valley Cent. School Dist., 98 A.D.3d 804, 949 N.Y.S.2d (3rd Dept., 2012)	August 16, 2012	Reversed	Appellate court reversed the denial of motion for the summary judgment to the school sued for failure to supervise minors who were allowed to go to the restroom alone and were exposed to sexual misconduct of a sophomore, the appellate court found that the  school lacked notice of prior similar misconduct	The Mills Law Firm, LLP, Clifton Park, Christopher K. Mills
20	Shields v. Carbone, 99 A.D.3d 1055, 952 N.Y.S.2d (3rd Dept., 2012)	October 18, 2012	Affirmed as modified	Appellate court reversed portion of the decision requiring Delaware County to return the bail, instead requiring the law firm O'Connell and Aronowitz, PC to first return bail to Delaware County	Richard Spinney, Delaware County Attorney
21	Scribani v. Buchannon, 101 A.D.3d 1517, 957 N.Y.S.2d (3rd Dept., 2012)	December  27, 2012	Affirmed as modified	Appellate court reversed dismissal of complaint against second defendant	Tatiana Neroni, Delhi
22	People v. Hazen, 103 A.D.3d 943, 962 N.Y.S. 2d (3rd Dept., 2013)	February  14, 2013	Reversed	Appellate court reversed summary denial without a hearing of a motion to modify sex offender level classification, failure to satisfy procedural requirements	Theresa Mulliken, Harpersfield
23	People v. Lynch, 104 A.D. 3d 1062, 961 N.Y.S. 2d (3rd Dept., 2013)	March 28, 2013	Reversed	Failure to grant a motion to withdraw the plea because of a conflict when two criminal defendants were represented by the same counsel	Galluzzo & Johnson, New York City, Matthew J. Galluzzo for appellant
24	Hurtado v. Williams, 112 A.D.3d 1047, 976 N.Y.S.2d (3rd Dept., 2013)	December  5, 2013	Affirmed as modified	Appellate court reversed denial of a motion to dismiss a common law negligence claim by a tavern in a case alleging negligent service of alcohol	Costello, Cooney & Fearon, PLLC, Camillus (Maureen G. Fatcheric of counsel)
25	In re Bayley W., --- NYS2d ---, 2014 WL 1316462, 3rd Dept., April 3, 2014	April 3, 2014	Reversed	Severing parental rights of an incarcerated father without an evidentiary hearing	Theresa Mulliken, Harpersfield

25 reversals and modifications up to present time and 20 before the judicial elections of 2012!  And, by the way, I appear in the above table only once, so in 24 cases Judge Becker was overturned by other attorneys.  So, Judge Becker's frustration when he humiliated me in a public hearing for appealing everything that moves with or without merit was not really against me, but because of his abysmal reversal and modification record.


I say "abysmal" because, as any other appellate attorney knows, most appeals are affirmed.  I know how many appeals of Judge Becker's decisions are affirmed, and know from my own experience and from experience of other people whose decisions made by Judge Becker were affirmed, that appellate courts in general and this appellate court, in particular, usually look the other way when issues of judicial bias are raised.  I raised issues of Judge Becker's bias multiple times, on retained and assigned appeals, it was always ignored.


To break through this unspoken rule and policy of appellate courts to affirm by default unless the decision is really very bad, and do that 25 times during the judge's career, is really a bad record (in my legal opinion).


Here is also a summary table by year:

Year	Reversals	Modifications
2003	-	-
2004	1	-
2005	4	-
2006	2	1
2007	-	1
2008	1	3
2009	-	1
2010	3	-
2011	-	1
2012	1	2
2013	2	1
2014	1	-
Total:	15	10
Grand total of reversals and modifications:	25

25 reversals and modifications which are also partial reversals, and on issues which are really bad:

• failure to notify a minor properly of his right to remain silent;
• making decisions without evidentiary hearings;
• denial of motion to withdraw the plea where it was clear defendant's counsel had a conflict of interest, representing two criminal defendants at a time with adverse interests;
• granting sole custody not based on the record;
• granting a stay away order of protection not based on the record;
• usurping the fact-finding function of the jury and making an instruction to the jury which constituted a de facto directed verdict of guilt against the defendant,
• failure to appoint attorney for the child etc.

Now, in my opinion, calling 20 reversals and modifications that occurred, according to the table above, at the time Judge Becker's re-election campaign has sent its unsolicited flyer to my home at the end of October 2012, is a very high number and hardly fits the statement of Beverly Shields in the flyer that "Appellate courts rarely overturn" Judge Becker's decisions.

It appears instead that Judge Becker "eked out" a victory in the 2012 elections by a "razor-thin" margin based on this far from truthful statement in his official election flyer that appellate courts "rarely" overturn his decisions.

Had voters been presented with the table above, the results of judicial elections in Delaware County in 2012 could have been different.  But, attorneys  in New York State, as in other states of the United States, are muzzled and gagged by professional conduct rules  not to criticize judges at the risk of losing their license and are not allowed to speak out.  I was afraid to speak out more than I did, too.

I do not  want to be afraid any more.  It is my firm belief that to put attorneys who are supposed to be zealous advocates of civil rights and social progress into a position of scared schoolchildren and to hold an axe of disbarment over their heads to stifle their speech as citizens on issues of public concern is unconscionable, unconstitutional, contrary to international norms of attorney independence and should not be tolerated in this state, in this country or internationally.  Usually, stifling attorney independence is a sign of a totalitarian state.  Having lived in a totalitarian state, I know those signs and I feel it my obligation to warn citizens of my new country about such signs creeping upon them in this country.

Now, having reviewed Judge Becker's reversal record which he should have truthfully represented in his re-election flyer if he allowed that flyer to touch upon the subject at all, I feel deceived as a voter.

I feel deceived because I feel that my vote and votes of other people who supported Judge Rosa against Judge Becker was unduly diluted by votes of people who relied upon statement of Beverly Shields in support of Judge Becker that Judge Becker is so good that appellate courts rarely reverse him, which apparently was not supported by evidence, to put it mildly.

I believe that, as an attorney and judicial officer, and as a judicial candidate, Judge Becker had an obligation to his voters and to his opponent to tell the truth in his campaign materials and not to make or have other people make on his behalf, misleading statements. 

Of course, tBeverly Shields' statement that appellate courts "rarely" overturn Judge Becker's decisions may be claimed now as "merely" an opinion.  Yet, an opinion from an elected public official has a lot of weight, and an opinion pertainint to reversal record must be supported by facts. 

The facts from the table above tell a different story than Beverly Shields' statements in Judge Becker's official re-election campaign flyer which was sent, no doubt, to thousands of homes of local voters.

Once again, as a voter I feel deceived by this non-forthright behavior of a judge during his election campaign.

I believe, a person who wields an enormous power state judges wield, a person who holds authority to take away children, liberty, property of people, must be more, not less forthright, than the average citizen.

It can be claimed that Beverely Shields did not know the reversal and modification record of Judge Becker when she made the statement.  That may be true, Beverly Shields may not have had access to Westlaw.

Yet, one does not have to have access to that expensive database to be able to ascertain what I ascertained in the table above.   The same results could have been gained through review of the public website of the Appellate Division Third Judicial Department.  All decisions of that court are published there and are in open access from any point in the world with an Internet access.

Moreover, it was not Beverly Shields' campagin, it was Judge Becker's.  Judge Becker knew his own reversal and modification record.   I have witnessed first hand how painfully he reacted to one of the reversals.  Judge Becker was notified about a reversal in People v. Hull when he was handled a custody proceeding of my client.  He could not contain himself from announcing it to attorneys and parties in that proceeding who had nothing to do with that case and was visibly upset. 

Even though in People v. Hull the reversal was on the issue of ineffective assistance of counsel, the judge presiding over proceedings where such ineffective assistance occurred still bears responsibility to prevent such conduct of a defense counsel from occurring and to replace ineffective counsel, if necessary, especially when such ineffective counsel is, as he was in People v. Hull, assigned and not retained.

Judge Becker cannot possibly claim that he does not know his record of reversals and modifications.  It was wiser for him not to mention that subject at all during his re-election campaign, but if he chose to touch upon that subject, he had to be truthful and forthcoming with the voters and not to misinform them.

Judge Becker was supposed to check out the statements going out to potential voters on his behalf.   For that reason, simply because the grossly inaccurate statement regarding Judge Becker's reversal and modification record is not justified simply because, in the judge's re-election flyer it was put into the mouth of a lay individual.

That lay individual was a public official and her words had a lot of weight in the community, obviously that was why she was chosen to be included into that flyer in the first place.

I truly believe that, no matter how much time has passed since the 2012 election of Judge Becker, this judge should not be allowed to gain the benefits of his misrepresentation to the voters by which he has likely "eked out" his "razor-thin" victory over his opponent Judge Gary Rosa.

I truly believe that, because of this misrepresentation, Judge Becker should return the victory back to where it belongs, to Judge Rosa.

If that does not happen, I call upon the people of Delaware County and the State of New York to contact their representatives to start an impeachment process for this judge.