The moment of truth is coming as to whether attorney disciplinary proceedings in New York are really meant to protect the public

I keep reading scantily available materials about attorney disciplinary proceedings in New York.

More or less, they boil down to this:

1)  Most of the attorneys, with all the law school and CLE training, do not know the disciplinary rules, do not know how the courts apply those disciplinary rules, and do not know procedures of disciplinary committees. 

2)  New York is the only state among U.S. jurisdictions where discipline of attorneys is being conducted at the level of intermediate appellate courts.  For this reason, there are differences in rights that attorneys have depending on their geographical location within the State of New York, as there are 4 intermediate appellate courts in the state of New York, and each one of them have their own set of procedural rules which differ, sometimes greatly, from one another.

3) Decades after the U.S. Supreme Court called an attorney's right in his work as a fundamental due process interest, New York treats it as a mere privilege, with the respective low burden of proof on the prosecution - the lowest among all court proceedings in New York - by fair preponderance of the evidence.  New York explains it by the interests of society that outweigh the interests of the attorney in such a proceeding.  Apparently, in the opinion of the New York State Court of Appeals that issued that decision (In Re Cappoccia), the higher the interest that the state has, the lower the protection for the individual that is subject to government prosecution must be.

New York is not unique in this.  Recently I wrote about a decision of a West Virginia judge who rejected an attorney's 1st Amendment challenge in a disciplinary proceeding for criticizing a judge and a request to apply the normal high review standard usually applicable to speech protected by the 1st Amendment.  The court rejected the high standard of review and indicated that the high interests of protecting the public (obviously from criticism of public servants) outweigh the attorney's right to 1st Amendment protections.

I already wrote that such logic flies in the face of the Supremacy Clause of the U.S. Constiuttion that each judge taking office, whether state or federal, is sworn to uphold.  Judges seem to forget the contents of the U.S. (and State) Constitutions the moment they take that oath and start treating constitutional arguments as frivolous arguments.

But, if the logic that the higher the interests of the government/public to be protected, the lower should be the protections of the prosecuted individual, we should try and convict people of premeditated murder by an administrative hearing with hearsay admissible, because nothing is more important than to protect the public from potential murderers.

Civil rights protections obviously work the other way - if a government prosecutes a person, and if what is at stake is the loss of livelihood and investment of a lifetime, and a potential life of a pauper and an outcast, since future employment opportunities of disbarred attorneys in any field are bleak, attorneys in disciplinary proceedings should be given MORE protection, not less, no matter how important the public interest is that the government is protecting.

Now on a more personal wave, over the years that I defended my husband in a disciplinary proceeding, and now myself, I have done an overwhelming amount of research of how attorneys are - or are not - investigated and prosecuted by disciplinary authorities, and I can definitely, based on sheer numbers of stories that I found about high-standing attorneys involved in egregious misconduct warranting suspension or disbarment who were never publicly disciplined, as opposed to the numbers of civil rights attorneys who get suspended and disbarred in droves, mostly for their professional activity and independence.

The ultimate testing for me is going to come tomorrow at the scheduling conference of the hearings in my disciplinary proceedings.

I am going to ask the referee (as I already asked the disciplinary court, in writing) to open my hearing to the public, and to provide me an opportunity to compel appearance of witnesses and production of records as exhibits, in admissible format, in numbers that I consider necessary for my defense.

I wonder whether the public that is allegedly sought to be protected by the disciplinary proceedings will be allowed to watch how it is being protected.  After I posted an invitation to my proceedings on social networks, I received some inquiries from people who actually want to come and watch my disciplinary proceedings.  

I am grateful for that interest, whatever the motivation for it was, as watching such proceedings, watching the prosecution trying to discipline me for non-existing violations despite court documents in my favor that the prosecution should have reviewed before starting the proceedings in 2 years ago, may become the ultimate eye-opener for the taxpayers.

False allegations that the government continues to be stubbornly prosecuting against me are prosecuted on the taxpayers' money, so taxpayers might need to at least be on notice as to how their hard-earned money are spent.  I am positive New York taxpayers did not give their taxes to the government in order for some public officials to use that money to settle personal scores and run fraudulent prosecutions.

Not to allow the public into such proceedings, despite my express waiver of my own privacy, would be not only a due process violation toward me, but also an extremely and insultingly condescending and paternalistic approach by the state toward the public.  The public, the taxpayers, have a right to know how its own interest are (or are not) protected, by the way, at the public's own expense.

I will report on the outcome of the conference tomorrow.

Will the Mokay case be reversed and my husband's law license reinstated based on the newly-minted law by the 3rd Department?

Maybe, it is a rhethorical question.

Maybe, not - who knows, maybe - just maybe - an honest judge will appear somewhere on the horizon, look at the law, the facts, the court's own precedents and - WOW - do what the court was supposed to do 8 (!) years ago - end the Mokay saga, dismiss the case with sanctions against Richard Harlem, his law firms and his clients for frivolous conduct, and with attorney fees and damages to my husband throughout all related litigations:

1) Mokay v. Mokay;
2) Neroni v. Harlem;
3) Neroni v. Becker in the U.S. District Court for the Northern District of New York.

Maybe, finally, somebody will answer for the grief, stress, loss of business and reputation, financial losses caused by this 8-year-long litigation to my husband and to our family?

And maybe - just maybe - Richard Harlem will be disbarred for: 

(1) buying my husband's disciplinary prosecutor John Casey by having his law firm accept Richard Harlem and his father retired (now late) judge Robert Harlem as John Casey's law firm's paying clients at the time my husband turned them in for John Casey's Committee's investigation and prosecution;

(2) using his own and his father's political influence to get a frivolous litigation going for 8 years in at least two courts (Delaware County Supreme Court, Appellate Division 3rd Department).

Well, let's hope against hope.

But - I was just alerted to a case where NYS Appellate Division Third Judicial Department made a following decision in 2013, 2 years after disbarring my husband:

• that it is a conflict of interest subject to discipline for an attorney to represent at the same time a trust and trust's beneficiaries.

GUESS WHAT!

Richard Harlem, son of a judge, and his law firm Harlem and Harlem, and now somehow Harlem and Jervis (without consent to change counsel, but who cares when it is a retired judge's law firm) represents in Mokay v. Mokay the Estate AND the Estate's beneficiaries.

And it represents the Estate while the beneficiaries claim that the decedent (the Estate) defrauded them in collusion with my husband (so the Estate must be a Defendant in the lawsuit, but was joined as a Plaintiff because Richard Harlem obviously could not represent both a Plaintiff and a Defendant in the same action).

And it represents the Estate and David Mokay while David Mokay is suing the Estate in a related proceedings.

And it represents the Estate and David Mokay while the Estate evicted David Mokay in a related proceeding from the very property that both the Estate and David Mokay claim to the Delaware County Supreme Court my husband stripped him both of title and possession (with no proof that the deeds were ever delivered - so title never passed, and David Mokay was obviously in possession and was dispossessed BY THE CO-PLAINTIFF THE ESTATE).

But, on the other hand - how can we follow the law and dismiss litigation with such glaring conflicts of interest when the only damages claimed are ATTORNEY FEES OF RICHARD HARLEM and his law firm?

If Richard Harlem is conflicted - they can claim no damages, because attorney fees are forfeited, and the case should be dismissed!

How can we stand that?

If the case is dismissed, the premature disbarment will have to be overturned!

Frederick J. Neroni, the leading trial attorney in the area until his disbarment of July 7, 2011 and Richard Harlem main competitor will then have to be reinstated!

Richard Harlem, landlord of NYS Senator James Seward, and son of a judge, cannot have that.

Richard Harlem, the "star" of the Blanding saga who was investigated by the NYS Attorney General for fraud upon the court, along with his father, the retired judge, and who blatantly lied in the recent hearing in Mokay v. Mokay under oath that he was never so investigated - cannot have that!

Kevin Dowd, the presiding judge against whom I recently filed yet another complaint and who my husband sued for misconduct - cannot have that.

Kevin Dowd who thinks that Richard Harlem cannot be impeached as a witness because his word is presumptively credible and controls - apparently, even if he commits open perjury - cannot have that.

That is Kevin Dowd who talks of urinals in his honor during divorce proceedings raising questions about his mental stability - cannot have that, he imposed an anti-filing injunction upon Mr. Neroni to prevent him from being able to make any motions to vacate and to subject him to a gruelling and unnecessary trial in an obviously frivolous litigation.

That is Kevin Dowd who talks about his "meager bucks" as a salary in front of indigent pro se litigants.

That is Kevin Dowd who harasses indigent pro se litigants and calls them "dangerous persons" merely for making a meritorious motion to recuse - while the judge actually recused.

That is Kevin Dowd who will soon retire and needs Judge Michael Coccoma to give him perks like lucrative hearing officer appointment - which will likely not happen if:

1.  Kevin Dowd does not become Kevin The Closer, 
2. avenges for Judge Coccoma Mr. Neroni's lawsuit against Judge Coccoma and his wife, as well as my recent complaint against Judge Coccoma;
3. brings the frivolous Mokay litigation to a judgment against Mr. Neroni by blocking admissible evidence, harassing Mr. Neroni and his counsel and blocking Mr. Neroni from filing any pre-trial motions, including a motion to vacate based on the new law in the Appellate Division.

That is Kevin Dowd who was re-elected without opposition because no attorney dared to air their concerns for fear of retaliation from Judge Dowd.

What won't judges and their friends - politically connected attorneys - would not do to appease their vengeance and to give each other bounties such as legal fees claimed by Richard Harlem as damages for his conflicted representation.

But - who knows - maybe the law will actually be applied in the Mokay case?  Maybe, the conflict of interest of Richard Harlem that a first law student can spot will finally be recognized by the courts? Timely? Before the unnecessary jury trial on damages/attorney fees that Richard Harlem has forfeited by his conflicted representation?

Is the rule of law possible in a case where a son of a judge wants money, no matter lawfully or not, and wants to prevent a professional from re-entering competition against Richard Harlem?

Everything to save a brother judge from disbarment and being taken off the bench without a hearing

I received yesterday a decision on my motion to consolidate two appeals and recuse the New York State Supreme Court Appellate Division 3rd Department.

This is the same Jonathan Follender who is the author of the following wonderful legal theories:

1) frivolous default caused by an attorney - Jonathan Follender argued it to Judge Carl F. Becker in M & C Brothers, Inc. v. Torum et al, Delaware County Index No. 2011-884;  Jonathan Follender provided to the court no proof of service upon respondents in that proceeding, no proof of my appearance in that proceeding (and there is none in the file).  Judge Becker agreed with Jonathan Follender.

Rules of frivolous conduct definitely do not cover a default, even if the default would be valid.

A court can find a default when the court

(1) has subject matter jurisdiction over the proceedings
(2) has proof of service of the action upon the defendants or respondents, and thus a right to exercise personal jurisdiction over the defendants/respondents.

None existed in the case where Jonathan S. Follender claimed "frivolous default".  Subject matter jurisdiction disappeared 2 days before the initial appearance in the case through a satisfaction of judgment in the underlying action. 

Personal jurisdiction cannot exist where subject jurisdiction does not exist.
Moreover, Follender failed to provide to the court proof of service at all, or in accordance with the Order to Show Cause accompanying the homestead sale Petition.

2) Premature satisfaction of a money judgment - that claim Jonathan Follender made in the homestead petition proceeding above after having the respondents punished in another proceeding for delaying satisfaction of the same money judgment, and after putting an income execution against one of the respondents in another proceeding.  Jonathan Follender was upset that satisfaction of the money judgment prevented him from taking the respondent's house, he argued to Judge Becker that respondents are "cash rich" and Carl Becker listened and ordered respondents to pay fees for Follender and ordering  a frivolous conduct hearing against me (who never appeared in the case and was never retained for the case) long after Judge Becker lost subject matter jurisdiction over the case and knowing it.

3) death of a corporation - Jonathan Follender made a nunc pro tunc motion to replace the deceased Plaintiff when the Plaintiff was a corporation in M & C Brothers, Inc. v. Torum et al, Delaware County Index No. 2007-280 in front of Judge Eugene Peckham, now a law partner in Levene, Gouldin & Thompson, LLP.  Judge Peckham granted the  motion.

4)  loss of companionship of a dog - a non-existing cause of action in New York, with all due respect to animal lovers (including myself).

In none of these proceedings was Jonathan Follender sanctioned.

In none of these proceedings did the court point out to Jonathan Follender that he is doing something wrong.

When Follender, after recusal of Becker from the dead homestead proceeding wrote to the newly assigned judge in those same dead homestead proceedings, Kevin Dowd, and claimed that (1) I was attorney of record in the case, (2) I appealed the case up to the Court of Appeals and the appeal is still pending,  (3) I expressed intent to disobey lawful order of a tribunal by refusal to come to a conference in the dead homestead case, I lost my patience and sued Follender and his client on whose behalf he made those claims for fraud (all Defendants), defamation (all Defendants) and fraud upon the court (Follender and his law firm).

Of course, the "closer" judge James Tormey was assigned to the case because - surprise! - Jonathan Follender is a judge in a justice court in Ulster County, and James Tormey, having cost New York taxpayers $600,000 to settle a lawsuit against him for retaliation against his employee for refusal to agree to conduct political espionage against a Democratic judicial candidate, and having cost embarrassment to the judicial system, it "owed it", and is now assigned to lawsuits against judges, apparently to get rid of them, rightly or wrongly.

Judge Tormey chose the unassailable tactic - to lie in the litigant's face knowing that my only recourse is appeal.

Judge Tormey misrepresented the record by failing to even admit that there are TWO cases involved, one where I was an attorney and one where I wasn't.

Judge Tormey failed to even address the issue that jurisdiction in the 2nd case died before the case initially came to be heard by Judge Becker.  If there was no SUBJECT MATTER JURISDICTION, no litigation-related immunity applied.

Yet, Judge Tormey did apply litigation immunity, punished ME, the victim of Jonathan Follender's misconduct, of frivolous conduct, awarded against ME Jonathan Follender's inflated attorney fees, and imposed upon ME an anti-filing injunction, while dismissing the lawsuit against Jonathan Follender before the answer was filed for insufficient pleadings - which would allow me to simply re-plead, make it sufficient and sue as of right.

By the way, Jonathan Follender defaulted in the case by serving the answer himself while he was the party in the proceeding.

Judge Tormey forgave Jonathan Follender the default also.

So, "frivolous defaults" are found against me where I was not even an attorney of record, and defaults are not found against attorney-judges where they are clear as day on the record and by a statute.

But - wait - Judge Tormey said that there was no way for poor Mr. Follender to even discern whether I was or was not an attorney of record in the second case, it was difficult!

The difficult part, I understand, was to (1) learn the applicable law; (2) look at the record where no notice of appearance was filed, and (3) curb one's rampant greed forcing one to use your opponents as an ATM machine no matter what the law says and whether there is jurisdiction in the case.

I was sick (very sick) at the time the decision of Judge Tormey came.

I asked for an adjournment to file an appeal - Tormey denied it.

I asked for an adjournment to file motion to vacate, renew and reargue - Tormey denied it.

I managed, with the help of a friend who is an attorney, to prepare and to file both the motion, the appeal and opposition to attorney fees on time.

Follender claimed to Tormey that my illness (documented) is a fake and asked Tormey to punish me for claiming a fake illness.  Nice to have a fellow with such a level of morals and integrity for a town justice, people of the Town of Denning, isn't it?

Tormey rejected my motion to vacate, renew and reargue, pointing out the obvious - lack of subject matter jurisdiction in the homestead court because of satisfaction of judgment, lack of litigation immunity for Follender and other defendants because of lack of jurisdiction in the homestead court, obvious fraud when Follender claimed I was attorney of record, "caused the default" in the homestead petition, that it was appealed, that the appeal went to the Court of Appeals from that case, that I intended to disobey a lawful order of a tribunal (an accusation, basically, of a contempt of court - a crime, and a patently false accusation).

But - first things first - Justice Follender (sad irony in the title)had to be protected, because, with an adjudication for fraud and fraud upon the court he would have flown off the bench without a hearing on collateral estoppel grounds.

Tormey did his job.  He protected Follender, he avenged himself for my motion to recuse because Follender asked Tormey to punish me for a federal lawsuit against Tormey mentioning his non-disclosure in a case I filed against Judge Becker (where Tormey The Closer presided) that Tormey JUST had his own federal litigation concluded - in individual capacity - with Attorney General who represented Becker as Tormey's Counsel - a complete disqualification for Tormey to preside over case against Becker.

Tormer obliged and punished me for bringing a federal lawsuit against himself.  

I understand, the mentality is - "move up or move on" - appeal or forget about the constitutional violation, but a judge does not have to disqualify no matter how egregious his conflict of interest is - because nobody ever punishes Supreme Court judges in this state.  Nobody.  Ever.

Moreover, Tormey immediately sent his fraudulent decision where he conflated two underlying court proceedings and punished me for suing Tormey in federal court, into the disciplinary committee, who readily used it on a motion for a summary judgment against me.

Since the decision was used by the disciplinary committee, Tormey refused to grant my motion to vacate, renew and reargue, to keep the disciplinary proceeding juiced up.

Then, the disciplinary committee, on an ex parte application, transferred the case - surprise! - to where the 4th Department disciplinary committee has as members Tormey's court employees.  The 4th Department court denied my motion for disqualification of the Committee where members owe their job security to Tormey

             (who has a history of giving his employees hell if they do not do his bidding,
             no matter how unlawful, see Morin v. Tormey federal litigation that lasted 4.5 years
             and cost New York taxpayers $600,000 plus salaries of New York State Attorney
             General and his personnel to defend the judge for intentional misconduct
             completely outside of his authority)

for conflict of interest without an explanation and locked the record, also without an explanation, notice or opportunity to be heard.

Now when it came to perfection of the appeal, my time to perfect was:

November 4, 2014.

November 4, 2014 was election day, but courts were not closed.

The Record on Appeal was huge, it took all the truck-like trunk of our large car.  We (my husband and I) brought it to the court, only to hear that the court (3rd Department) was closed for Election Day.

We brought the record again on November 5, 2014, it was accepted and time stamped.

In a short time, less than a week, the record was dumped back on my porch.  When I called the court, they explained that certain statements were missing from the record, and I needed to redo the Table of Contents.

Statements that were allegedly missing from the record were IN THE RECORD, moreover, they bore the court's blue-and-red stamps dated November 5, 2014.

To redo a Table of Contents of the HUGE appeal required not days, but weeks.  The Table of Contents that was in the Record of Appeal was just as good, there was no real need to redo it.  Court rules do not require to catalog in the Table of Contents everything within the pleadings.

Yet, for me the 3rd Department always invents new rules.

Together with the record, I filed a motion to consolidate the two appeals (of the dismissal and of the attorney fees awarded to Follender, perpetrator of the defamation and fraud against me) and to recuse the court because of:

1.  the court's misconduct in a Neroni v. Marten's case;
2. recusal and transfer to the 4th Department of my disciplinary case on June 11, 2014 and unlawfully blocking my access to the ex parte application for that transfer;
3. documented misconduct in several other cases.

The court required me to provide to the court Notices of Appeal with Pre-Calendar statements and orders, otherwise the court claimed the motion could not proceed.

Previously, over the 6 years that I practiced in that same court, if I made a motion, I was required to provide these documents (which are normally provided to the court by the clerk where these documents are initially filed), while my opponents made motions without those documents, and when I pointed out the omission, I was told by the court that provision of those documents with a motion was not required by the court rules.  Apparently, court invents extra "rules" for me.

Ok, I provided the "required" documents to the court.

I also delivered the "revised" Record on Appeal for both appeals by the required date in December of 2014.  That was the THIRD time we delivered that huge Record on Appeal to the court, at our own expense, effort and time, while there was nothing wrong with it to begin with - I am preparing Records on Appeal for 6 years and can do it in my sleep.

Yesterday I received a "Decision and Order on Motion" authored by judges:

Lathinen, McCarthy, Lynch and Clark.

 These four wonderful judges tell me, as of January 7, 2015, the following (with my complaint pending against them in the New York State Judicial Conduct Committee and with the U.S. Attorney's office asking for a criminal investigation of corruption in their court):

"ORDERED that the motion to consolidate is denied, without costs, and without prejudice to renewal in the event appellant moves for, and obtains, an extension of time to perfect the appeal taken by notice of appeal dated February 4, 2014".

What extension of time?  I perfected the appeal ON TIME, I brought it in on November 4, 2014, when the court closed its doors on me - while it was not a public holiday.

I brought it the next day, November 5, 2014, and the court stamped and accepted it.

After the court accepted the appeals, I made corrections on it required by the court.  The court did not reject the appeals as untimely - it only asked for corrections, which I made. 

Do the judges who made this decision know what is going on in their own court?

Do they know as of the date of the decision, January 7, 2015, that the appeals were already perfected for over 2 months? And perfected timely?

Why do I need to (1) pay filing fees;  (2) prepare motions to "extend time" when the two appeals are already TIMELY PERFECTED and IN THE CUSTODY OF THE COURT?

Obviously the harassment continues, because I turned the court into the Conduct Committee and the feds and because - surprise! - nobody wants "Justice Follender" to be taken off the bench in the Town of Denning and disbarred without a hearing as a result of my lawsuit against him for fraud and fraud upon the court, which will DEFINITELY have to happen to "Justice Follender" if, finally, hoping against hope, an honest judge actually LOOKS at the facts and applicable law and at the records of TWO underlying cases on appeal.

Then the reversal of Tormey's decisions is inevitable (if the law is to be followed).

Then a judgment against Follender by a jury is inevitable (if the law is to be followed).

Then Follender being taken off the bench on collateral estoppel grounds without a hearing is inevitable (if the law is to be followed).

But - how can the court system allow one of their own to fall so badly?

No - let Follender continue to claim frivolous defaults, deaths of corporations, loss of companionship of dogs and cats, premature and frivolous satisfaction of money judgments against income execution stripping the homestead sale court of subject matter jurisdiction (Follender's real argument!).  Let him commit fraud upon the court as he did in the homestead litigation, claiming, after the court lost subject matter jurisdiction that Tatiana Neroni "frivolously" "caused" the court to lose its "subject matter jurisdiction" because the money judgment was satisfied too quickly while Follender wanted to get a piece of the cash from my "cash-rich" clients - and they satisfied the judgment, sold the house and left the area, escaping his clutches.

Since they left the area, I am the one that needs to be used by Follender as an ATM machine - whether it is lawful or not, but fellow judges will help him do that, won't they?

Let this species of an "officer of the court" continue with his shenanigans, because once one dons a black robe, one gets a black-robed brotherhood that protects him from all legal troubles, at all costs.

Discipline of a judge - more for wrong reasons than for right ones, and more for upsetting a higher-ranking judge than for anything else

On December 30, 2014 the New York State Commission for Judicial Conduct entered an "admonishment" against Delhi Town Court Judge Richard Gumo.

There are several reasons for the admonishment, but after careful reading of the Determination (the formal charges are not published, and I will request a copy of them from the New York State Judicial Conduct Commission), several things strike me in the Decision.

I have always known Judge Gumo - and attorney Richard Gumo - as, at the very least, a courteous individual.  I have never seen him upset to the point of snapping the way he did in these proceedings, and I dealt with him as an attorney and a judge a lot.

I am not sure I understand why he wrote his letter to Judge Becker which I admit was inappropriate, but I turned Judge Becker into the Judicial Conduct Commission for a number of misconduct issues which was by far worse than what Judge Gumo was admonished for - and the Commission would not bat an eye on those complaints, it would simply toss them even though they were meticulously documented and misconduct issues researched and pointed out.

I understand that the main reason why Judge Gumo was disciplined at all is not because he did something inappropriate.  With due respect to Judge Gumo who was never rude to me personally, although he did engage in questionable conduct in one of my recent cases in front of him, Judge Gumo's behavior in People v. Groat was not exemplary.  

I will show below where Judge Gumo really slipped, but that was not why he was punished, because I see  judges engage in similar conduct left and right and not punished at all.

I believe that Judge Gumo was punished because Judge Becker was the one who turned him in.

Here is what happened.

A woman was charged for a violation (not a crime), Disorderly Conduct, in Walton Village Court where Judge Richard L. Gumo was a presiding justice along with his main seat in Delhi Town Court.

One of the witnesses of the prosecution was the daughter of the court's clerk.  The court clerk is not an attorney.

Even though a conviction for a violation such as Disorderly Conduct ("discon") does not create a criminal record, it provides for a fine and a maximum sentence of 15 days in the local County jail, so procedurally it is treated as a criminal proceedings, with a slight difference that there is no discovery and no jury trial.

The defendant Ms. Groat wanted to go to trial and she did go to trial.

In trials of violations, a jury trial was not allowed, so it had to be a "bench" trial, with only the judge presiding.  

Judge Gumo heard the testimony, including the testimony of the court clerk's daughter, without disclosing the relationship between the witness and the court clerk to the defendant or her attorney Mr. David Lapinel.

Not only the witness was the court clerk's daughter, but she was competing against the Defendant's daughter in horse shows, and allegations of Defendant's behavior during a horse show because of disqualification of her daughter was the basis of the proceedings.

Judge Gumo specifically found testimony of the court clerk's daughter "credible" and of the Defendant not credible.

Moreover, Judge Gumo indicated that he wanted to sentence her to jail, even though she had no prior criminal record.  That was very unusual.

The defense attorney requested an adjournment to provide character certifications to the court.

Judge Gumo allowed the adjournment.

By the sentencing, the defense attorney learnt about the prosecution witness being the court clerk's daughter and raised that issue with Judge Gumo at sentencing.

Judge Gumo sentenced the Defendant to the maximum term in jail for her charge, 15 days.

I can give Judge Gumo credit for at least giving Mr. Lapinel one day to apply for a stay, that was generous, and that is said without any irony.  A lot of judges would not have given the defense that one day.

Defendant appealed to the Delaware County Court and applied for a stay.

The appellate judge (from justice courts) Delaware County Judge Carl F. Becker imposed the stay and made a comment that it was really a "no brainer" for Judge Gumo to (1) disclose the relationship between the witness and the court clerk and (2) to sua sponte (on the court's own motion) transfer venue to another court.

Defendant also made a motion in the trial court before Judge Gumo to vacate the conviction because of non-disclosure about the court clerk's daughter.

Judge Gumo denied the motion and Defendant appealed again to the Delaware County Court, while the initial appeal of the conviction was still pending.

Judge Gumo then ordered the Defendant to report to jail for the execution of the 15-day sentence.

Defense attorney wrote to Judge Gumo indicating that the stay imposed by Judge Becker was still in effect for the pendency of the appeal.

Judge Gumo replied to defense attorney that the stay is not in effect since the Defendant failed to perfect the appeal within 120 days.

Defense attorney applied to appellate Judge Carl F. Becker for yet another stay, for the pendency of the appeal and all motions.  Judge Becker granted the stay.

On the day when the Defendant was ordered by Judge Gumo to report to jail, but the order was stayed by appellate Judge Becker, Judge Gumo (trial judge) wrote a letter to Judge Becker (appellate judge) by fax, by mail and hand-delivered.

In the letter Judge Gumo advocated for the prosecution pointing out evidence that was not in the record and pointing out that the appeal was precluded because it was perfected on time.  Both of those arguments were for the prosecution to make, if at all, but they were made by a trial judge instead.

It was apparent that the trial judge Gumo was disgruntled and took his anger out on the defendant because defendant embarrassed Judge Gumo by raising the issue of non-disclosure and because of Judge Becker's "no brainer" comment in his order of stay which was picked up by newspapers and which Judge Gumo read.

Judge Becker turned Judge Gumo into the Conduct Commission and recused from the case.

Judge Lambert was assigned to the appeal and affirmed Judge Gumo's decision claiming that there was no jurisdictional disqualification (under Judiciary Law 14), and otherwise it was Judge Gumo's own decision whether to recuse and transfer venue or not, and he did not abuse his discretion.

New York State Court of Appeals refused to hear the further appeal.

What the appellate courts and the Commission clearly "missed" is:

(1) credibility determination by Judge Gumo which were questionable, and a reversal was (in my opinion) in order - because Judge Gumo believed the court clerk's daughter over the defendant whose daughter competed with the court clerk's daughter in horse shows where the chargeable conduct of Defendant occurred. 

To me as an appellate attorney, there is a clear possibility that Judge Gumo assigned credibility based on the status of the witness's mother as the clerk of the court and not on normal neutral factors - and that was a reversible issue that, I understand, Judge Lambert overlooked or ignored to have this case go away, in order not to encourage defendants by reversals of convictions.

(2) retaliation by Judge Gumo against the defendant after she or rather her counsel raised issues of Judge Gumo's misconduct;

• conviction of a person with no prior record to the maximum term of jail time AFTER her counsel raised the issue of non-disclosure at the sentencing;
• stubborn attempts of Judge Gumo to put the defendant into jail to serve that 15-day sentence during the pendency of the appeal and during the stay of enforcement of the sentence, necessitating the defense counsel to apply for the second stay;
• refusal to recognize his mistake and vacate the conviction and sentence;
• letter to the appellate judge when the second stay was imposed containing appellate arguments on behalf of the prosecution, revealing evidence that was not in the record, also in favor of the prosecution, and advising the appellate court that the defendant turned down a plea bargain and asked to go to trial - which should not be a factor in determination of the judge at all.

Based on the letter of Judge Gumo, the possibility that he sentenced the Defendant to 15 days in jail in retaliation for her counsel raising Judge Gumo's non-disclosure becomes a certainty. 

Moreover, for the defendant in that particular case and for all other defendants appearing in front of Judge Gumo a question arises - does the judge consider in his decisions at bench trials that a defendant turned down the plea offer - as a negative factor against the defendant, both for conviction and sentencing purposes?

Judge Gumo practically admitted in his letter to Judge Becker (which was not warranted or allowed by any procedural rules) that he considers defendant's rejection of a plea offer an important factor on appeal.  That means that judge Gumo considers rejection by a criminal defendant of a plea offer a factor at all - and that is a reversible error, so if I were an appellate judge, I would have erred on the side of caution and fairness and would have reversed the conviction and sentence imposed under such circumstances.

But, what comes next is completely incredible.

The Commission for Judicial Conduct which tosses complaints of far worse judicial misconduct specifically because it was "within judicial discretion", sustained Judge Gumo's "discretionary" decision that Judge Lambert affirmed on appeal, as misconduct, and stated that there is no problem or inconsistencies in such a decision.

Is it fair that some discipline was in order for what Judge Gumo did, in my opinion?

Yes, it was, even i the admonishment was imposed not exactly for what it was supposed to be imposed, the Commission missed the retaliation against the Defendant and the issue how Judge Gumo decided issues of credibility - possibly, by taking into consideration status of the witness's mother as the court clerk, and taking into consideration that the Defendant turned down a plea offer.

But, if Judge Gumo was to be disciplined, Judge Becker and other judges that people complain about for worse misconduct, should be disciplined, too.

In this case, a County Judge (Becker) turned in the local Town Justice (Gumo, who is also a practicing attorney, practicing in front of Becker) for much less than what Judge Becker has been turned in before, yet Judge Becker always escapes with no discipline and Judge Gumo is being disciplined on Judge Becker's complaint.

Is THAT fair?  Definitely not.


By the way, as far as inappropriate letters of judges are concerned, I know of a much much worse case concerning Judge Becker.

A pro se party in Family Court sued Judge Becker in federal court, siting his conflicts of interest and misconduct in a Family Court case.

The pro se party then goes around the area and distributes copies of his lawsuit to individuals, businesses and governmental organizations.

One of the copy the pro se litigant delivered, as I understand, to the County office of the Republican Party.

That was during Judge Becker's re-election campaign of 2012.

Judge Becker does the following:

(1) he recuses from the individual's Family Court case;

(2) after recusal, not having any authority any more to do anything in the case or even have access to the record, Judge Becker writes a letter on the court letterhead, to the attorneys who participate in the family court case of the individual, and tells them about the lawsuit, about distribution of the lawsuit and that Judge Becker (no longer any authority any more in the recused case) notifies the attorneys of his opinion that the filing and distributing of the lawsuit are evidence of the individual parental abilities and should be considered by the court.

Judge Becker was never disciplined for writing that outrageous letter, violating multiple rules off ethics.

Yet, when he (admittedly correctly) turned in Judge Gumo, the Commission jumps to serve Judge Becker's wishes.

And that's what is one of the saddest issues in the State of New York - selective enforcement of judicial discipline against lower court judges who pissed of prosecution or the higher-court judges and complete non-enforcement of any discipline against higher-court judges no matter what they do.

I encourage the media and members of the public to come to my disciplinary hearings and to call my disciplinary court, ask for access to my disciplinary records (on my express permission) and record what the court has to say to that

Please, see my previous post here about the invitation to my disciplinary hearings.  I will know the exact dates/times/places of the hearings on January 12, 2015 and will post them.  I will ask the referee to hold the hearings in a facility that can accommodate a lot of people.

You can read about my disciplinary proceeding throughout this blog by using in the search box search words "disciplinary", "Zayas", "Torncello", "Gasparini", "Becker".

In addition to the invitation to come to my disciplinary hearing, I encourage the public and the media to call my disciplinary court and ask for access to the records of my disciplinary proceedings.

I expressly give the public and the media permission for such access.

If the court pretends to deny access on the basis of Judiciary Law 90(10), that law is designed to protect MY privacy, not the court's, and I am waiving my privacy by this post, as I did two times in writing in my letters to court.

I encourage the public and the media to call the court, ask for the records and to actually RECORD your conversations with the clerk. 

It is interesting to learn how the court will be getting out of this mess where it refuses to allow me to waive my own privacy without the court's permission.

In New York, every adult is presumed competent (especially an adult who has a license to practice law), and any competent adult does not need permission of anybody but him/herself to waive his/her own privacy.

As to the law pertaining to recording of telephone conversations, New York has a one-party consent statute, Penal Law 250(1):

§ 250.00 Eavesdropping; definitions of terms.
    The following definitions are applicable to this article:
    1.  "Wiretapping"  means the intentional overhearing or recording of a
  telephonic or telegraphic communication by a person other than a  sender
  or  receiver  thereof,  without  the  consent  of  either  the sender or
  receiver, by means of any instrument, device or  equipment.  The  normal
  operation  of a telephone or telegraph corporation and the normal use of
  the services and facilities furnished by such  corporation  pursuant  to
  its  tariffs  or  necessary  to  protect  the rights or property of said
  corporation shall not be deemed "wiretapping."

To translate it from the legalese, if you are a PARTY to a telephone conversation (sender or receiver), you can give consent (to yourself, obviously), to record a telephone conversation in which you are a party (sender or receiver - you called somebody or somebody called you), without telling the other party to the conversation that you are recording.

I am encouraging you to record because, in my experience, you should not rely upon the perceived "honor" of court personnel, they will backtrack on anything borderline sensitive they told you on the phone.

Court contact information:

Frances E. Cafarell
Clerk of the court
New York State Appellate Division
4th Judicial department
50 East Ave.
Rochester, N.Y. 14604
(585) 530-3100

Invitation to the media to attend unique attorney disciplinary proceedings triggered by sanctions that a judge imposed after I sued him for misconduct. Attorneys rarely get hearings. Journalists, do not miss your chance!

MAXIMUM REPOST IS REQUESTED. ATTENTION OF THE MEDIA IS REQUESTED. I invite all who are willing to come to my disciplinary hearings which will be held tentatively between January 12, 2015 and February 6, 2015 in Syracuse, NY. The disciplinary proceedings were brought on three sanctions imposed by Delaware County Judge Carl F. Becker immediately after I sued him on behalf of myself and two clients for misconduct in and out of court. At this time I am fighting to even be able to open my own proceedings up to the public and waive my own privacy. The court is stalling, afraid of embarrassment. I will post the exact date, time and place of the hearings when I have the details on January 12, 2015. It is going to be an interesting case - prosecution is trying to bring against me a charge that I neglected two clients at the time when I was not even admitted to practice law, and for 2.5 years refuses to drop those charges. The referee is old, frail and appears to have memory and perception problems. The prosecutor does not seem to have trial experience and does not seem to know what she is doing... Is going to be fun - even though the result, unfortunately, is pre-judged. Nobody will leave me with my law license after I stepped on the balls of those up high. Public is invited for the show. Contact e-mail is tatiana.neroni@gmail.com.Telephone (607) 746-6203. I will appreciate if you could bring your friends and especially journalists. Thank you.

Collateral estoppel, attorney discipline, judicial discipline and equal protection of laws

It has become fashionable New York attorney disciplinary committees to pull attorney licenses without a due process hearing - on the basis of the so-called "collateral estoppel". 

In other words, if a judge makes a court decision adverse to an attorney (even an arbitrary decision, a wrong decision, a retaliatory decision, and a decision without any hearing), and another judge, on the appellate level, affirms that sanction out of the sense of camaraderie with the lower-court judge, the disciplinary court does not have to go through a hearing before disciplining the attorney - it can just apply the "collateral estoppel" to "prevent relitigation" of issues of fact.

A very convenient concept, saves to the disciplinary courts and prosecutors a lot of time.

The Disciplinary Committees of the 3rd and the 4th Department tried to pull that trick on me - and so far failed, but only (in my perception) so that the court can say - here, we gave her a "due process hearing" (without pre-trial discovery, right to subpoena witnesses, an open hearing public hearing and in front of an elderly referee with perception and memory problems).

Yet, it just occurred to me, when I was comparing judicial discipline and attorney discipline that collateral estoppel from a CIVIL court can never be applied to judicial discipline - and never is.

You know why?

Because judges granted themselves absolute judicial immunity, even for malicious and corrupt acts on the bench, and thus made sure that they may not be sued, judgments against them may not be obtained - and thus the collateral estoppel principle, and the resulting deprivation of the due process hearing, what judges regularly do to attorneys - may never apply to judges themselves, in their own disciplinary proceedings.

Isn't such a foresight wonderful?

What is also wonderful is the judicial profession allowing its participants to create multiple benefits for themselves - including unlimited power, including power of retaliation against your critics, and zero accountability.  A dream job.