I received a "Proposed Referee Report" by Mary Gasparini with a cover letter.
Both the Proposed Referee Report and the cover letter are documentary monuments to stupidity, incompetence and an all-encompassing sense of entitlement to break the law with impunity that our governmental officials "enjoy" since the introduction and proliferation of the concept of "absolute immunity" for judicial and prosecutorial misconduct.
The cover letter calls a referee (appointed only to "hear and report the facts" - which the Referee refused to do) a "Judge" or a "JHO" (Judicial Hearing Officer), which are three completely different positions and three completely different sets of duties.
The cover letter also blatantly invites the Referee to engage in an ex parte communication with Mary Gasparini:
"If you [Referee Sirkin - T.N.] have any questions, or if I can be of further assistance, please do not hesitate to contact me".
The "Proposed Referee Report" is a masterpiece of fraud, pure and unadulterated.
I am publishing it because when a prosecutor presents to the a referee a cooked court record, makes false statements in the "Proposed Referee Report" and withholds relevant information, that is a matter of public concern that the public (that same public that Mary Gasparini is seeking to protect from me in the disciplinary proceeding) - should know, for self-protection.
First and foremost, the referee was appointed to schedule and conduct an evidentiary hearing on the outstanding issues of fact.
He did not do that.
Instead, on December 21, 2014 Referee Sirkin decided the somehow outstanding Petitioner motion for a summary judgment ON PAPERS and INSTEAD of holding an evidentiary hearing, and BEFORE the conference that Sirkin has scheduled FOR THE PURPOSE of SCHEDULING an EVIDENTIARY HEARING, as ordered by the court.
Not that the Referee seems to care.
Not that the Petitioner and its attorney Mary Gasparini seems to care.
Look how "subtly" Mary Gasparini attempts to defraud the court and urge Sirkin to file with the court a fraudulent document.
First, Mary Gasparini states what Referee Sirkin was supposed to do:
Sirkin was supposed to "take proof" - meaning conduct an evidentiary hearing on outstanding issues of fact, NOT reading what was already filed with the court.
After "taking proof" Sirkin was supposed to report his "findings" from that hearing to the court, "without recommendations".
So, how Gasparini is going to try to help Sirkin wiggle out of NOT holding an evidentiary hearing and NOT taking proof in accordance with the court order.
In other words, how does one report "findings" from a non-existent hearing? Here is how one does it - Mary Gasparini, a Continued Legal Education certified lecturer - will teach you how to do that:
First, Mary Gasparini states in her "Proposed Referee's Report" that a pre-trial "hearing" was held on October 23, 2014 (p. 2 of Gasparini's Proposed Referee's Report above).
While saying that, Mary Gasparini does not apparently care that:
(1) I received a notice only of a pre-trial conference to be held on October 23, 2014;
(2) that no court order allowed pre-trial "hearings";
(3) that pre-trial "hearings" are not allowed in attorney disciplinary proceedings by procedural rules of court (or I would have availed myself of those "hearings");
(4) that no "hearing" was, in fact, held.
Let's go further.
The next statement of Gasparini is that at the "pre-trial hearing" on October 23, 2014 I appeared "without counsel"
It apparently does not occur to Gasparini that an attorney appearing on her own behalf is appearing "as her own counsel", not "without counsel".
Let's go further.
Gasparini then puts three misstatements into just two phrases:
The misstatements are:
(1) that "as a result" of my motion, anything was adjourned. A motion such as I filed, does not automatically impose a stay, so it was Referee Sirkin's decision to adjourn the scheduling conference, so it could not be said that "as a result" of my filing, the "matter" was adjourned;
(2) Gasparini manipulates the indeterminate word "matter" instead of a definite "scheduling conference" to claim that what was adjourned was "the matter" that she previously called a "pre-trial hearing";
(3) yet, I have irrefutable evidence that Referee Sirkin held the October 23, 2014 appearance as a conference, and planned the December 8, 2014 appearance, adjourned to January 12, 2015, also as a conference, designed to "set the dates" for "pre-trials" and "trials", and thus that no "hearing" as ordered by the court to the Referee was scheduled, planned or held.
(4) The stenographer on October 23, 2014 failed to fully take the record of the scheduling conference and provided a false transcript with false statements that the October 23, 2014 conference was a "hearing" and that there were "waivers" and "stipulations" on my behalf.
I will provide my notes as to what really occurred on October 23, 2014 in a separate blog in the future.
Then, Mary Gasparini claims in her Proposed Referee's Report that the transcript with multiple false statements is actually a "true and correct copy" of what occurred in the January 12, 2015 "proceedings" (which was a scheduling conference, but was represented in the transcript as a hearing with testimony, by a different stenographer).
Further, Mary Gasparini calls what the transcript calls "a hearing" with testimony, a "pre-trial":
Mary Gasparini also includes Sirkin's Decision (see above) dated December 21, 2014 which eliminates any further needs of any "pre-trials", since it resolve the motion on liability, usurping authority of the court to do that, and only left the stage of mitigation remaining.
The stage of mitigation occurs only after:
(1) the Referee holds a hearing - which did not happen;
(2) files his findings of fact from that hearing, without recommendations - which did not happen;
(3) Petitioner moves to confirm the Referee's report;
(4) Respondent moves to disaffirm the Referee's report;
(5) the court reviews both motions, denies Respondent's motion and grants Petitioner's;
(6) the court decides against Respondent on the issue of liability
Sirkin skipped those 6 steps above, already attempted to schedule mitigation on January 12, 2015 (meaning that the 6 steps above are already over) and now Gasparini tries to steer him BACK to step (2) above, while knowing that Sirkin did not satisfy condition precedent for step (2), step (1).
That is, ladies and gentlemen, pure fraud, the crime of fraud or attempted fraud upon the court, mail fraud and attempt for theft of honest services of a public official - a federal criminal offense.
Gasparini claims that I failed to appear on January 12, 2015, but fails to present as part of the Proposed Referee's Report or even mention that I faxed a letter with a weather advisory to her showing why I CANNOT appear without risk to my life.
The way Gasparini presented it in her Proposed Referee's Report is as if I did not appear in person on January 12, 2015 without justifications, at least, without my letter and weather advisory, that is the implication, and a false implication.
Then, Gasparini presents a rare truthful piece showing that there was no court-ordered hearing, because the Proposed Report does not mention a hearing or proof taken at a hearing:
So, a Referee was ordered to hold an evidentiary hearing.
The Referee did not do that.
Instead, without a hearing, he claims that Respondent failed to present evidence - to the Referee, obviously, without a hearing - that would "rebut" Petitioner's evidence, while Petitioner - naturally - also did not present any evidence on outstanding issues of fact, because - once again - there was no hearing.
But that does not deter Gasparini from putting this piece into the Proposed Referee's Report:
Gasparini sustained burden of proof without a hearing. She thinks.
Gasparini then went so far as offering Sirkin in her "Proposed Referee's Report" "Findings in Mitigation". "Findings" is actually "findings of fact" as a result of already HELD proceedings in mitigation, but when did such trifles deter Gasparini, a NYS court-certified CLE lecturer on the topic.
It is obvious that Sirkin has no authority to:
(1) Make findings in mitigation; or
(2) to schedule mitigation
and that mitigation cannot be scheduled before the previous steps - including, please, forgive me, THE EVIDENTIARY HEARING that was not scheduled or held by Sirkin (see the above 6 skipped steps).
It is clear from the transcript that I did not waive anything because there was nothing to waive, mitigation stage was not there yet - if it was, Gasparini would not have been offering a "Proposed Referee's Report".
Mitigation is a stage after the court already confirms that report - and it was not even filed at this time, and cannot be because there was no HEARING to report from.
The 4th Department announces on its site the following rules:
Following the completion of a hearing and the filing of a report by a referee, the Court will schedule an appearance for the argument of motions by the parties and to afford the respondent attorney an opportunity to be heard in mitigation. The respondent attorney may waive in writing the opportunity to appear (22 NYCRR 1022.20 [d] [2]).
So, the mitigation can only happen:
(1) after the evidentiary hearing;
(2) after the report of the referee was filed
(3) after the motions by the parties,
AND
the waiver of the right to appear must be done IN WRITING, 22 NYCRR 1022.20(d)(2).
Obviously, none of that was important to Mary Gasparini when she put that paragraph into her "Proposed Referee's Report".
I already covered in my blog here false statements in the transcript that Gasparini attached as Exhibit 1.
As to the Decision of December 21, 2014, which I saw for the first time when Gasparini sent it to me (the Referee or the court never did), it is yet another masterpiece of stupidity and incompetence and desire to sweep any issues of judicial misconduct under the rug.
The Decision enumerates three decisions where I allegedly committed "frivolous conduct":
First of all, I already discussed that the Referee had no right to make this "Decision", when the Referee was appointed only to hold a hearing which the Referee refused to do.
Second, note how carefully the Referee avoids mentioning in the enumeration that all three sanctions:
June 30, 2011 for $1,250.00
August 2, 2011 for $2,500.00
August 10, 2011 for $ 1, 250.00
Were imposed by Judge Carl F. Becker
3 days
1 month and 6 days
1 month and 2 weeks
after June 27, 2014, the date after I sued Judge Carl F. Becker on behalf of Alecia Bracci, myself and my husband for misconduct.
That pure unconstitutional retaliation and abuse of power by the judge is the ENTIRE basis of the disciplinary proceedings against me.
Moreover, Alecia Bracci, who dared to sue Judge Becker for misconduct (on and off the bench, and off the bench is not covered by any immunity) and Barbara O'Sullivan, who served that lawsuit upon Judge Becker on June 27, 2014, are even more severely retaliated against than I am, with the courts staging falsified criminal proceedings against them which are pending as we speak.
Barbara was released on bail, but proceedings against her and her daughter, staged obviously because her daughter dared to file a motion to vacate these same sanctions of Judge Becker based on later-discovered misconduct, rage on.
But back to Sirkin's "Decision".
Look at this magnificent piece:
Sirkin states that the burden to prove collateral estoppel rests upon the Petitioner, and makes no indication that the Petitioner has met its burden of proof, that there was any HEARING where such proof would be presented.
Sirkin was appointed to TAKE PROOF, not to make a decision on motion ON PAPERS already filed.
Moreover, the reason why the Referee was appointed in the first place is because there is a significant difference between rules of frivolous conduct of the court - 22 NYCRR 130-1.1(c) (1), (2) and (3) and rules of Professional Conduct for Attorneys , 22 NYCRR 1200 Rule 3.1(d)(1), (2) and (3), precluding a possibility of using collateral estoppel as a matter of law, because of the different evidentiary standards.
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No
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What is frivolous conduct under the Court Rule under 22
NYCRR 130-1.1(c )
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What is frivolous conduct under the Attorney disciplinary
rules, 22 NYCRR 1200 (b)
What is frivolous conduct
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Meaning of the difference for purposes of collateral
estoppel
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1
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it is completely without merit in law and cannot be
supported by a reasonable argument for an extension, modification or reversal
of existing law;
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the lawyer knowingly advances a claim or defense
that is unwarranted under existing law, except that
the lawyer may advance such claim or defense if it can
be supported by good faith argument for an extension,
modification, or reversal of existing law;
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Attorney disciplinary rule presupposes a subjective
standard (“knowingly”) while the court rule is an “objective” (lower)
standard.
Collateral estoppel is applicable from Attorney Rules
down to Court Rules, but not vice versa, from Court Rules down to Attorney
Rules, how Gasparini wants to apply it
For court rules, the court does not have to consider
whether the attorney’s conduct was “knowing”.
For attorney rules, the court does have to consider this
factor.
Collateral estoppel, thus, does not apply as a matter of
law.
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2
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it is undertaken
primarily to delay or prolong the resolution of the litigation, or to
harass or maliciously injure another; or
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the conduct has no
reasonable purpose other than to
delay or prolong the resolution of litigation, in
violation of Rule 3.2, or serves merely to harass or
maliciously injure another; or
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Under the court rules, the court can sanction for a meritorious lawsuit
that is undertaken “primarily”, but not entirely, for prohibited purposes.
Under attorney disciplinary rules, the court can only sanction if the
conduct was ONLY (not primarily) for prohibited purposes
Since Judge Becker never had to consider whether the alleged misconduct occurred
ONLY with the prohibited purposes in mind, collateral estoppel does not apply
as a matter of law
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3
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it asserts material factual statements that are false
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the lawyer knowingly asserts material factual
statements that are false
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The “knowing” element is lacking from the court rule of
frivolous conduct, as opposed to the Attorney disciplinary rule.
Judge Becker did not have to consider whether I knew that
the statements I was making were false, and because of that, collateral
estoppel does not apply as a matter of
law
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Sirkin could not possibly apply collateral estoppel to Judge Becker's decision, even if he were an appellate judge and had a right to decide motions in that court (while he is not a judge and does not have such an authority).
Yet, Sirkin did not even attempt to conduct the above comparative analysis of the rules, and "granted the motion" to the Petitioner with a minimum effort, simply enumerating my "sins".
He did not mention that:
(1) In the Family Court case I was right that Judge Becker did not have a valid certificate of election, and Judge Becker later filed a false certificate of election, 9 years after elections of 2002 and when all original petitions and ballots were gone, so there was nothing to do the certification from. So, Judge Becker was not a lawfully elected judge from 2002 to 2012, and all sanctions are imposed by a lay individual - but that is too explosive an issue to touch for Referee Sirkin.
(2) That Judge Becker had extrajudicial knowledge as to the Family court case that disqualified him from presiding, but he did not disclose that information, and it was not disclosable due to privacy law, until we discovered it by chance in 2013, long after the sanctions were imposed.
(3) That Judge Becker skipped an entire motion in the Torum case - and the Appellate Division affirmed the sanctions, even though, had the motion been reviewed and properly resolved, sanctions were supposed to be imposed on attorney Follender - but he is a judge in the Town of Denning court, so instead I was sanctioned.
(4) That Judge Becker engaged in an ex parte communication with my opponent in Shields v. Carbone, and a transcript of the opponent's admission to that, uncontroverted by Becker, exists - only the Appellate Division did not want to review or even mention it when it affirmed the sanctions.
(5) That in 2012 Becker sent to my home a pre-election flyer where the Plaintiff in Shields v. Carbone endorsed Becker in such a way that it was clear she was Becker's close personal friend - and that was after sanctions were affirmed on appeal.
All of the above, if mentioned (and all that information was in the record) would clearly bar application of collateral estoppel, but Sirkin was appointed to do quite a different job than that dictated by law.
Instead doing his job, Sirkin makes a "Decision" where he falsely claimed that I, without a hearing, "failed to sustain my burden" on rebuttal - when the Petitioner did not even start to present evidence to sustain Petitioner's initial burden.
Sirkin even manages to punish me for availing myself of the right, guaranteed to me by statute, to stay the effect of any court orders when I file an appeal and post the money into the court's escrow, which I did on all three sanctions in 2011, 1.5 years before the Petition was filed, making the entire Charge IV frivolous, as it was never ripe, and was moot before it was brought.
Sirkin states that:
(1) Charge IV alleges I did not pay the sanctions as ordered by "the court" (or rather, by Judge Becker in retaliation for the lawsuit - see above); that
(2) I "filed appeals" from all orders,
and from these two statements Sirkin makes a leap to state that it is "indisputable" to him that I violated the court order by not immediately paying the sanctions to the Lawyers Protection Fund (which exists only to collect money from lawyers who were involved in fraudulent conduct against their own clients - while I was sanctioned for fighting FOR my clients, but AGAINST a biased judge).
In fact, a statute says that what I did was legal, not that Sirkin cares.
CPLR 5519(a)(2) provides that if I filed an appeal and put in an "undertaking" into escrow, the order to pay sanctions was stayed without a court order.
I did it by the book.
Delaware County Clerk is also court clerk of the Supreme Court for purposes of receiving any filings and any money into escrow of the court trust fund.
Two cases of sanctions were from the Supreme Court.
As to the Family Court case, Judge Becker did not allow the Family Court clerk to accept money from me into the court escrow, the clerk told me that they never do that and that I should file it with the Delaware County Clerk - which I did.
But, to Sirkin, following statutory law when Becker wants me to suffer immediately was wrong.
Let's wait and see whether Sirkin will accept Gasparini's masterpiece and will have the gall of filing this "Referee's Report" with "exhibits" with the court - because that will be a federal crime under RICO, not to mention several state law crimes.
Stay tuned.
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