A digest of judicial discipline in New York for the year 2015 - Part I

Recently, the New York State Commission for Judicial Discipline has issued a 262-page annual report for the year 2015.

The report contains a graph reflecting the Commission's "activity" for the year 2015, here it is:

What immediately caught my attention is that, in 1978 and in 2015, approximately the same number of complaints were investigated, even though in 2015, the number of complaints was nearly 3 times higher than in 1978.

In 2015, according to the annual report of the Commission, there were 1959 complaints made about judges, and 179 of them were investigated.

Let's talk in percentages.

In 1978, 26.5% of complaints were investigated (170 out of 641), and
 
In 2015 - only 9.1% of complaints were investigated.

Why?

Are complaints of the public against judges increasingly less meritorious as literacy of population increasingly grows?





Is it the matter of budget of the Commission (that issue is also raised in the annual report)?

Is it the matter of increasing protectiveness of the system?

Let's think about it.

In 2015, 1959 complaints were made about misconduct of judges.  In 1959 situations, citizens felt that judges violated rules of judicial conduct and ethics.

90.9% of those complaints WERE NOT EVEN INVESTIGATED!!!  

Does it mean that the majority of the public writing to the Commission is dumb and files meritless complaints?

Here is the policy of dismissal of the Commission WITHOUT INVESTIGATION:

Ok, let's see.

The Commission deemed 90.9% of complaints that were filed in 2015 to be without merit. 1,780 complaints in 2015 were without merit, where the number of investigations were suspiciously kept at the same level at in the 1978, when there were 3 times less complaints filed - it is as if there is actually a policy for a flat-number of investigations in a certain year.

Also, while all judicial hearing personnel "enjoys" absolute judicial immunity for MALICIOUS and CORRUPT acts in office, the Commission claims that it has "no jurisdiction" over such judicial substitutes as:

1. Administrative law judges;
2. Judicial hearing officers;
3. Referees;
4. New York City Housing Court judges

Now, all of decisions of these "judicial substitutes" is then subject to "collateral estoppel" doctrine and is regarded as la by the State of New York and by federal courts and courts of other states.

Yet, these "judicial substitutes", while allowed to wield as much power as a judge, are not accountable in any way - while covered by absolute judicial immunity for, once again, MALICIOUS and CORRUPT acts in office.  And that is, ladies and gentlemen, plain wrong.

Imagine that a referee, an administrative law judge, a judicial hearing officer, a NYC Housing Court judge decided a case based on a bribe or ex parte agreement with your opponent, falsified court transcripts, and stripped you of a valuable right - your house, your property, fined you a substantial amount of money, damaged your reputation, took you children away in a custody proceeding as part of a divorce proceeding (judicial hearing officers have full authority of a Supreme Court judge if they sit in that court).

You have proof of that - but the Commission declines review of the case for "lack of jurisdiction".

Moreover, the Commission says that it does not take complaints about misconduct of judges in "pending cases", and I wonder, why - should people actually bear the brunt of the misconduct, lose everything first, scramble to pay money for the appeal, face the unlikely odds of winning because of appellate policy to affirm most cases because of "deference" to those same judges who committed misconduct.   If misconduct is not curtailed at the time it occurs, it's too late at the end, and most likely, that misconduct will never be addressed.   The Commission's function and the function of appellate courts is different.  The Commission is the only forum, save a criminal prosecution, that can deal with judicial misconduct without requiring people to pay money for the vindication of their rights.

So, in New York, most complaints about judicial misconduct are deemed without merit or without jurisdiction, or tossed based on a completely unlawful policy of not dealing with misconduct if it occurs in a current pending court proceeding.

If the Commission's function is to deal with judicial misconduct, and the judge's job is to preside over court proceedings, where else should the misconduct occur so that the Commission would deal with it.

Below I made a table showing what the Commission considered "meritorious".  Please, note that the discipline imposed upon judges for ex parte communications was for ex parte communications with CRIMINAL DEFENDANTS (an extremely rare occurrence), while NONE of the discipline was imposed upon judges for ex parte communications with prosecutors (an extremely frequent occurrence).

Is it because the Commission consists of judges and lawyers/

Is it because judges mostly come from prosecutors?

Is it because the Commission, in 2015, still did not have a rule prohibiting members of the Commission, former members and their law firms from practicing in front of the Commission?

Is it because everything that the Commission does is with approval of some other high authorities, and those who ultimately receive "discipline" suffer that discipline not because of something they did wrong, but because they stepped on the toes of somebody up high, the circumstances of which we will never know?


The Commission provides the following statistics as to sources of complaints in 2015, in percentages:

Remember, the Commission rejected WITHOUT INVESTIGATION 1780 complaints in the year 2015?

It is difficult to compare apples to oranges, but, since the Commission does not give us a similar breakdown of sources of complaints dismissed without investigation, my guess based on the statistics provided is as good as anybody else's, so here:

In 2015, 1780 complaints were dismissed by the Commission without investigation.

At the same time, the Commission reports a policy of not dealing with complaints about pending cases.

At the same time, the Commission reports that 836 complaints came from criminal defendants and 801 came from "civil litigants".

With the crisis of indigent criminal defense going on in this country and in this state, with the crisis of prosecutorial misconduct and wrongful convictions, there should have been some attention paid to complaints of criminal defendants for sure, and certainly to complaints of civil litigants because, once again, the Commission's job is to deal with misconduct of judges, the judges' job is to deal with court proceedings, civil and criminal, so where else will the misconduct occur other than in judicial proceedings?  

Yet, the numbers of complaints coming from criminal defendants and "civil litigants" pretty much match and are less than the number of complaints tossed in 2015 without investigation.

836 + 801 = 1,637 - less than 1780 tossed by the Commission in 2015 without investigation.

What do we have left?

Anonymous complaints that would surely be tossed without investigation.

Complaints that come from the Commission itself, judges, lawyers, audits, "citizens" etc.


The Commission did not provide a breakdown of sources of those complaints which were accepted for investigation, nor does it provide a breakdown of sources of those complaints that resulted in discipline (16) or resignations during investigation (18).

Under the current rules, complaints tossed by the Commission without investigation are not disclosable.

Complainants whose complaints were tossed without investigation (even if for no other reason than budgetary constraints) do not have even a right to appeal that decision.


Last year, I made a digest of judicial discipline in New York for the year 2014.

I am doing the same for the year 2015 now.

My personal feelings - NYS Commission for Judicial Conduct continued to work this year as a glorified shredder of judicial complaints, same as it did last year and the years prior.

Based on the Commission's report, policies and statistics, I cannot say that there is any accountability and discipline of judges and judicial substitutes in New York.  It appears that discipline is directed mostly at non-attorney judges of justice courts, mostly for fiscal matters (mishandling bail money etc.) or for matters which are massively forgiven to judges of higher level, such as Supreme Court and Appellate Divisions.

For example, while multiple justice court judges were disciplined this year for ex parte communications, none of my clearly documented complaints against judges who engaged in the same behavior in the Supreme Court of New York state were punished, and, despite affidavits of witnesses that I provided to the Commission, none of my witnesses were even contacted for investigation.

Here is the table of judicial discipline for 2015:

No.	Name of Judge	Name of Court	Is the judge an attorney? Y/N	Judicial Discipline	Reason for discipline	Public attorney discipline? Y/N
1.	Randy Alexander	Mansfield Town Court, Cattaraugus County	No	Stipulated resignation as of December 31, 2014	Ex parte conversations with criminal defendants, dismissed and/or reduced charges without notice or consent of prosecution Failed to record proceedings Imposed sentences not authorized by statute Imposed fines in the absence of guilty pleas or finding of guilt “Used undignified and discourteous language on the bench”
2.	Linda A. Becker	Newfield Town Court, Tompkins County	No	Stipulated resignation as of December 31, 2015	Impersonated her daughter, a complaining witness in a criminal case, in a call to the Tompkins County District Attorney’s Office requesting an upgrade of the criminal charge from a 2nd degree harassment (violation, not a crime) to assault in the 3rd degree (a crime)
3.	Robert C. Cerrato	Yonkers City Court, Westchester County	Yes	Stipulated resignation as of January 1, 2016	Used his judicial title several times “on several occasions when he called third parties on behalf of his daughter regarding incidents arising from the matrimonial dispute between his daughter and her then-husband”, charged double permitted fee for solemnization of marriages	No record of public discipline as an attorney
4.	David P. Daniels	Guilford Town Court, Chenango County		Stipulated resignation as of October 21, 2015	In various traffic cases and eviction proceedings, “exhibited impatience and intemperance towards participants, made comments suggesting that he had prejudged the cases, failed to make proper audio recordings of court proceedings as required, engaged in unauthorized ex parte communications and, in one case involving his former attorney, presided without disclosing the relationship to the parties”.	No
5.	Andrew P. Fleming,	Hamburg Village Court, Erie County	Yes, admitted in 1986.	Admonition (despite prior discipline – admonition in 2013 for acting as an attorney for a crime victim and the victim’s family notwithstanding that he had presided over prior proceedings in the underling criminal case)	Directly or indirectly engaged in prohibited political activity, through his law firm he made 71 prohibited ticket purchases to politically sponsored dinners or other functions totaling $11,960.55, made 27 prohibited contributions to political organizations and candidates for elective office, totaling $12,533.48, and, through his spouse, made two prohibited ticket purchases to politically sponsored dinners or other functions totaling $400.	No record of public discipline as an attorney
6.	Gene R. Heintz	Sardinia Town Court, Erie County	No	Admonition	In a “dangerous dog proceeding”, judge Heintz “summarily ended the hearing before the attorney for the dog’s owner had completed his case, which resulted in a decision made on an abbreviated record that deprived the dog’s owner of the right to be heard pursuant to law.  After the prosecutor had rested her case, the judge announced his decision that the dog was dangerous and that the case was over, the judge also sent notices to potential witnesses of prosecution.
7.	Thomas C. Kressly	Urbana Town Court, Steuben County	No	Admonition  despite prior admonishment in 2004 for failing to follow required procedures	Accepted $500 cash bail and failed to deposit it into his court account within 72 hours (instead, gave it to an unidentified man and the money disappeared); failed to mechanically record proceedings; failed to maintain copies of any and all papers, files, orders, minutes or notes made by the court, and documents relating to the proceeding.
8.	Carl J. Landicino	Supreme Court, 2nd Judicial District, Kings County	Yes	Censure (I wrote about this case earlier)	Drunk driving, threats to troopers, using judicial office to try to reduce charges	No record of public discipline as an attorney
9.	Yvonne Lewis	Supreme Court, 2nd Judicial District, Kings County	Yes	Stipulated retirement as of December 31, 2015	Improperly approved payments to her confidential law clerk, Kimberly Detherage, for services rendered by her as a guardian in matters pending before other judges of the court. Failed to oversee Ms. Detherage’s work as a guardian, improperly continued to preside over three of Ms. Detherage’s matters, approved a guardianship payment to her after hiring her as her full-time clerk.	Not registered as an attorney under this name
10.	David J. Narducci	Chautauqua Town Court, Chautauqua County	No	Stipulated resignation as of September 1, 2015	Several e-mail ex parte communications with the prosecutor after a non-jury trial. Ex parte communications with defendants at an arraignment. Viewed video evidence before the arraignment of three defendants, failed to record the arraignment, but made copies of video evidence and distributed it to the prosecutor and one or more defense attorneys.
11.	Gerald J. Popeo	Utica City Court, Oneida County	No	Censure	Was “discourteous to two defendants and committed them to jail for summary contempt without following required procedures, made injudicious statements to and about attorneys. Committed one defendants for 5 separate counts of summary criminal contempt (30 days in jail each) in addition to the sentence for the criminal conviction. Stated to a criminal defendant that he would be happy to get off the bench and “slap his grin off his face”, asked an attorney if he was taught as a kid to talk while anybody else was talking (the attorney was explaining the surcharge to his client during sentencing) Made comments that the local DA will use forfeiture money to buy a new couch for his office or a new laptop.  DA complained to Adm. Judge Tormey, Tormey ordered judge to apologize. Made a comment that agreeing to a plea with a conditional discharge for a 74-year-old criminal defendant is not justice, but just a “notch on the belt” of the local prosecutor and helps the prosecutor’s standing in office”. Used racist slurs against an African American criminal defendant using the "N-word" and called an attorney a "cigar store Indian".
12.	Joseph A. Sakowski	Elma Town Court, Erie County	Yes, admitted to practice since 1976	Admonition	34 years on the bench Over the period of 2003 to 2014 made approximately 78 prohibited contributions to political organizations or candidates for elective office, totaling approximately $21,162	No record of public discipline as an attorney
13.	Daniel P. Sullivan	Whitestown Town Court, Oneida County	No	Censure, dissenter voted for removal	Requested leniency for his son from two law enforcement officers regarding charges of Overdriving, Torturing and Injuring Animals (a misdemeanor), and Violating Prohibited Park Hours (a violation).  Judge’s 19-year-old son Joseph Sullivan was found in a women’s restroom off a parking area of a park with two small kittens, hog-tied with tape, and a lighter nearby.  Judge was given the kittens (!) “to return them to the location where his son had obtained them”.  Called officers the next morning pleading not to “pile up charges” or “overcharge” his son because an arrest would jeopardize his chances to get a job with the Oneida County Sheriff. Judge told officer that his son’s drug rehabilitation has cost him and his wife nearly all of their life savings and argued that because the kittens were not actually injured, a charge of cruelty to animals did not apply.
14.	David M. Trickler	Birdsall Town Court, Burns Town Court, Grove Town Court, Allegany County	No	Admonition, prior discipline – failed to timely remit fines, report tickets and punish defendants for non-payments of traffic fines	Ex parte conversations with defendants Turned an arraignment (without presence of prosecutor) into a discussion of merits of the case with defendants, complete with his own opinions, reviewing of the map, then delayed prosecution of the case.
15.	Edwin R. Williams	Manchester Town Court, Ontario County	No	Censure	Issued a summary eviction without a hearing, despite evidence that petition of eviction was not properly served “Inadvertently” failed to record another eviction proceeding in 2012, and another in 2013 Was a judge since 1971
16.	Victoria B. Zach	Colden Town Court, Erie County	No	Stipulated resignation effective December 31, 2015	Interfered with proceedings in another court on behalf of a criminal DWI defendant, giving the impression that she is the defendant’s attorney, even though she is not a lawyer

Wow.

A judge casting around racial slurs from the bench is kept on the bench with just a censure?   And his remarks are simply "discourteous"?  Is New York Commission for Judicial Conduct for real?

When the state constitutional referendum comes in 2017, one thing that needs to be revamped is the Commission.  Members of the Commission must be formed from lay individuals only,  not predominantly from lawyers and judges, as they are now, where members of the Commission have deeply embedded conflicts of interest that do not allow them to rule fairly and impartially, too much of personal interests is riding on their decisions...

Out of 16 disciplined judges, the majority were not attorneys, and only 5 were attorneys (less than 1/3).

Of the 11 non-attorneys, the discipline was:

Stipulated resignation	5
Admonishment	3
Censure	3

Of the 5 disciplined attorneys, the discipline was:

Stipulated retirement	1
Stipulated resignation	1
censure	1
admonition	2

There was no public discipline against such disciplined judges as attorneys.

According to the annual report of the Commission, nearly 2000 complaints were lodged in 2015 - and resulted in only 16 disciplined judges?

Here is the Commission's summary of discipline:

If the Commission is dismissing a complaint, it must be because the Commission does not have jurisdiction or the complaint has no merit.

Why then dismissals with letters of caution?

• 5 judges resigned publicly;
• 11 resigned privately (and the question is - why not publicly?  Isn't the public entitled to know why a certain judge resigned or quickly "retired" before his term ended?);
• 7 judges left the bench upon expiration of office or other reasons "other than resignation" (possibly, early retirement is included into those reasons)

 All in all, 23 judges left the bench in 2015 because of disciplinary investigations, none of them was formally removed for misconduct, 5 "resigned" on stipulation" and 18 resigned for reasons not announced to the public. 

When the reasons for resignation are not known to the public, justice is not fully served, because the judge's victims cannot come forward and move to vacate the resigned judges' improperly made decisions, so justice was definitely not served by the Commission by allowing the majority of judges caught in misconduct to resign or otherwise leave the bench privately.

There were also "referrals" to "other agencies":

• 32 to the Office of Court Administration
• 1 (!) to the attorney grievance Committee  and
• 1 to a district attorney (criminal prosecutor) 

 It is interesting that the Commission has authority to make such references, but does not do it as many times as is needed, and I will blog about this issue separately.

Also, while reading decisions on discipline, I was wondering - yes, all of those words were correct, all of those principles of discipline and honor and accountability and canons of judicial ethics are applicable, but what made them inapplicable to screaming misconduct of judges I turned in and people I know turned in, when such misconduct was documented?

Note that out of 16 judges disciplined, only TWO Supreme Court justices were disciplined, one by censure (and remained on the bench) and the other by retirement on full pension (she is 71), and only because one was caught in misconduct that could not be disregarded, and should have led to his removal from the bench and disbarment, I wrote about it on this blog previously.

As to the other Supreme Court justice who was forced into retirement, her misbehavior consisted of allowing her law clerk to practice as a law guardian and took some connected counsel's bread and butter, therefore, the complaint and discipline.

I will provide additional analysis of the Commission's annual report and of some of the cases where discipline was imposed on judges in 2015.