#TheCrimeToBeNamedMelania, Part 9. The bought Judge John F. Lambert issues his bought "kind-of" civil contempt and "kind-of" legitimate decision in the Oneonta Hotel case

I have published so far 8 articles about the saga regarding the Oneonta City Hotel where, likely, developers who have backed up Rep. (D) Antonio Delgado in his election are pushing for the payoff.

And, that payoff is that Rep. Delgado's private attorney, by "coincidence", City Attorney for the City of Oneonta, NY, where Rep. Delgado's new posh district office is located, through fabricated court proceedings, and with the help of a corrupt judge and his corrupt law clerk, have pushed the family of Romanian Americans, lawful immigrant owners of the Oneonta Hotel that housed the poor to stop housing the poor next to the posh new luxury office of Rep. Delgado and be forced by court-imposed fees to sell the hotel to (likely) Delgado-backing developers.

Not to mention that both respondents, Nicolae and Melania Pervu, are open and active supporters of Donald Trump, political opponent of Rep Delgado.

To see all articles of this cycle, please, type "Melania" in the search window on the right.

I hoped against hope that Judge Lambert would have the decency to recuse from this case where he has acted - and it is confirmed in the press - as legal advisor of one of the parties.

Unfortunately,  that did not happen.

This article, the next article in the cycle #TheCrimeOfBeingNamedMelania, is about the super-incompetent and super-corrupt decision Judge John F. Lambert has made in this case.

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Everything in this judicial proceeding is wrong.

JURISDICTIONAL DEFECTS.  GENERAL

First, the petition did not contain the names of the tenants - and, thus, should have been dismissed, as it does not satisfy due process requirements in foreclosure proceedings.

Second, the judge was disqualified from presiding over the case by Judiciary Law 14 (a jurisdictional statute), since his law clerk Mark Oursler (who, no doubt, then researched an penned Judge Lambert's final decision in the case) 

• acted as a legal representative of the petitioner and 
• gave legal advice to the petitioner to file a motion for contempt on a Show Cause (court's) order, as well as 
• gave legal advice to the City as to 
• what kind of evidence and 
• what kind of recommendations for PUNISHMENT to include into their motion/application for Judge Lambert's order to show cause
  

The judge then signed the order - and now have found for his own client, the petitioner, whom the judge de facto represented in this proceeding through his law clerk, as reported by Oneonta City Attorney Merzig himself, in his interview to Allotsego.com.

This is a very clear case of judicial misconduct for which the judge should be taken off the bench and disbarred, together with his law clerk Mark Oursler.

New York State Judiciary Law 14, 16 and 17 prohibits a judge to also be an attorney in his own court and in the case he is presiding in and where he gives legal advice to a party.

Third, the attorney for the Petitioner, David Merzig, while pretending that he represents the City of Oneonta in this proceeding, pursues the interests and wishes of his private client Rep. Antonio Delgado, whom Merzig has been representing - and sharing his office with - since his election campaign.

So, 

• the petition was jurisdictionally defective - thus, any and all orders based on it other than an order of dismissal, are also jurisdictionally defective and void,
• the judge was disqualified since his law clerk acted as a legal representative of the petitioner, giving the City of Oneonta legal advice as to how to proceed in the case, and
• the City of Oneonta's attorney was disqualified, since, in these proceedings, he pursued, without disclosure to the court or opponents, interests of his private client, Rep. Antonio Delgado.

And, jurisdictional defects make a decision in such a case not just void-able, but VOID, as in - never existed, as in - ZERO, a nullity, and any and all enforcement of such a decision - a violation of the respondents' civil rights.

Yet, we have a decision in the case - by Judge Lambert who, despite his established and publicized role as a legal advisor (through his law clerk Mark Oursler) of petitioner the City of Oneonta, which disqualified the judge, sticks like glue to this case.

Here is this masterpiece in full.

The decision really makes one wonder how much Judge Lambert has gotten from real parties in interest - developers that want the Pervus to be forced to sell the Oneonta Hotel for a pittance.

Here we go.  After Judge Lambert quotes a page-full of precedents setting (incompletely and incorrectly) the law applicable to the proceedings in front of 

 here is the decision Judge Lambert has made:  

And here are just some problems with this decision.  

JURISDICTIONAL DEFECT.  CRIMINAL PROCEEDINGS FASHIONED AS CIVIL CONTEMPT OF COURT WITHOUT AN INDICTMENT OF THE GRAND JURY, NOT BROUGHT BY THE COUNTY DISTRICT ATTORNEY AND NOT PROVIDING CRIMINAL PROCEDURAL PROTECTIONS

There is one big problem with the decision though - on top of jurisdictional defects enumerated above.

Neither Judge Lambert, nor his (imbibing) law clerk Mark Oursler know the difference between a civil and a criminal contempt - even if one or the other would be screaming into their faces.

While the distinction is very simple and clear, and procedural protections in criminal contempt proceedings, as opposed to civil contempt proceedings, are much, much bigger.

The difference between civil and criminal contempt is this:  in a civil contempt setting, the contemnor (the person who has supposedly committed civil contempt of court) "holds the keys of the jail cell in his hands).

In other words, the purpose of a civil contempt proceeding is not to secure PUNISHMENT, but to secure ENFORCEMENT of a court order, to make the contemnor COMPLY with the court order that he/she claimed to have violated.

With that in mind, let's look at the end of Judge Lambert's court order.

The court order signed by Judge Lambert contains no indication whatsoever that the respondents, Nicholas and Malenia Pervu, may purge their contempt by complying with the court order that the City of Oneonta claims they have violated.

It is a pure punishment order.

And it was meant from the very beginning as a punishment order - since Mark Oursler, when giving legal advice to the City of Oneonta's (and Rep. Delgado's) attorney David Merzig, specifically told them to include their "recommendations for PUNISHMENT".



Which means - it was never meant to be aa CIVIL contempt proceeding, it was meant from the very beginning to be a CRIMINAL contempt proceeding, without jurisdiction.

And, Mark Oursler and Judge Lambert who have authored the decision, quoting, for show, to CIVIL contempt case law, know full well that what they are doing is just putting a SMOKE SCREEN, so that the decision would LOOK legitimate - even when they know for sure that it is not.  But, they also know that it is very expensive and very difficult to appeal the crap they have created, under the color of state law.

But, it also means, that - the court had NO JURISDICITON over a CRIMINAL CONTEMPT proceedings.

The proceedings were, in their nature, criminal contempt proceedings, and must have been named:

People of the State of New York v. Nicolae Pervu, Melania Pervu, Defendants.

And, such proceedings could only be brought in New York Supreme Court through a grand jury proceeding - see New York Criminal Procedure Law 10.20 (2).

Judge Lambert, who has worked as a criminal prosecutor for many years, and then as a judge presiding over criminal proceedings, also for many years,

 must know that.

If he does not know elementary law regarding his own authority or lack thereof, he should be taken off the bench.

Because, by New York State Law, Supreme Court (where the proceedings were held) may receive jurisdiction over a CRIMINAL case only through an indictment of the grand jury - which never happened in the Pervu case.

Nor did the City of Oneonta attorney David Merzig have a right to prosecute a criminal case - instead of the Otsego County District Attorney, as is his exclusive right, to prosecute criminal cases, under New York County Law 700.

And, by the way, the amount of $25,000 that Judge Lambert required respondents to immediately post as a de facto FINE far exceeds the maximum amount  of fines allowed for a FELONY.  While Criminal contempt is only a misdemeanor, for which the allowable fine is to be not exceeding $1,000 (New York State Penal Law 80.05).

Not to mention that in criminal contempt proceedings award of attorney fees and court costs is not allowed.

But what IS allowed is:

• defendants' right to remain silent;
•  discovery;
•  a burden of proof beyond the reasonable doubt.

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Even if all of the above arguments were not true - which it is - the decision still sucks.

NO FINDING THAT THE PETITION WAS LAWFUL

There is no finding in the decision that the City of Oneonta's petition was lawful.  And it was not - it did not name tenants, and, as I wrote before, an action in a de facto foreclosure cannot stand without naming every single tenant who lived in the Oneonta Hotel at the start of proceedings and including them as parties in the court proceedings.

NO FINDING THAT THE (SUPPOSEDLY) VIOLATED ORDER WAS LAWFUL

 Judge Lambert cited a lot of caselaw that a finding in civil contempt can be only for violation of a LAWFUL court order, so whether the court order that respondents Oneonta Hotel owners supposedly violated was part of the City of Oneonta's burden of proof.

Yet, there is no indication in the decision that the petitioner has offered proof or has proven that the order that the respondents supposedly violated was lawful.

And we know that it was not.

Because, 

1. it was made upon a jurisdictionally defective petition, and 
2. it was made on a legal advice from the judge's own law clerk (which was documented in a mass media publication, with confirmation of that by City attorney David Merzig), instantly disqualifying the judge, and because
3. the City attorney was pursuing in the case interests of his private client, Rep. Antonio Delgado, to get rid of the poor living next to his posh new district office, and, very likely, to get the prime real estate, the Oneonta Hotel, at a low cost, for developers backing him up, not to mention that
4. proceedings were in the nature of criminal proceedings - seeking punishment only - and, thus, could be brought only by the County District Attorney and only through the action of the grand jury, which was not done.

NO FINDING WHAT EXACTLY THE BURDEN OF PROOF WAS

In criminal proceedings - which is what it was, considering what was ordered by Judge Lambert, without any possibility for contemnors to purge the supposedly "civil" contempt - the burden of proof is "beyond the reasonable doubt".

There is no indication of that burden in the decision of Judge Lambert.

In civil contempt proceedings, considering the chance that people can end up in jail if found in civil contempt, the burden of proof is also very high, by clear and convincing evidence.

Judge Lambert has only mentioned that the burden of proof is on the petitioner, citing to case law for that.

But, Judge Lambert never mentioned, to WHAT KIND of burden of proof he is holding petitioner, by law.

So, Judge Lambert was holding petitioner to WHATEVER kind of burden of proof that the judge took from the ceiling - because, when you give an advice to a party to make a certain motion on an order to show cause, then sign that order to show cause, you pretty much pre-judged the case from the very beginning, and it does not matter what kind of burden of proof the law requires and what kind of evidence was there in front of the court.

NO FINDING WHETHER THAT PARTICULAR BURDEN OF PROOF WAS SATISFIED

You will find no phrase in Judge Lambert's decision:

"And the petitioner satisfied his burden of proof by clear and convincing evidence."

Which is an essential flaw in this case - hopefully, the no-less-corrupt Appellate Division 3rd Department will take its corrupt head from its corrupt ass and rule on the likely appeal from this case on the law and not on whatever it usually rules.

And, as the ultimate corrupt cherry on top of the corrupt cake:

A BOND WITHOUT A JUDGEMENT - WTF IS THAT?

Judge Lambert ordered de facto criminal defendants to put a $25,000 bond into the court from where Judge Lambert's de facto client City of Oneonta, a party petitioner in the proceedings to whom Judge Lambert's law clerk Mark Oursler gave legal advice to file the motion for a finding of contempt.

Into that bond the city will supposedly be freely dipping to "cover the costs".

The kicker is though that 

1.  Judge Lambert quoted case law that a civil contempt order may not be made by the court without a finding that some rights of the complaining party were violated, 

2. and, therefore, if Judge Lambert is talking about covering COSTS TO RESTORE something and ATTORNEY FEES, those COSTS and ATTORNEY FEES must be ASCERTAINED by the court and a JUDGMENT for a specific amount must be made.

Here we have a bond without a judgment.

Sweet.

The Pervus are ordered, at the threat of jail for non-compliance with this (kangoroo) court order, $25,000 into the court account as a BOND, the court already ordered them to pay ALL COSTS and ALL ATTORNEY FEES of the city, but the court ACKNOWLEDGED that neither costs nor attorney fees are ascertained - and that IF parties "DISAGREE" about the amount (which Judge Lambert was supposed to determine and reduce to a judgment in his order), then Judge Lambert will hold yet another hearing.

I have an impression that Judge Lambert has sat on that bench for much too long, and the longer he sits there the more abysmal will become his knowledge of the law and his integrity.

The decision he produced is not just an F decision, but an FFF decision which a 1st year law student will be expelled from law school if he writes something like that - due to how adamantly incompetent it is.

But, knowing Judge Lambert's usual attitude when unlawfulness of his decisions is challenged - "move up or move on", which is translated into plain English as "appeal or shut up", that's the choice the Pervu's will have to make - 

• to file or not to file a notice of appeal with the Otsego County Clerk within 30 days of the decision, 
• to serve or not to serve it upon the opponents, and 
• to file or not to file the appellate record an brief with the Appellate Division 3rd Department within 9 months from the decision, 

or - to keep their heads low, obey and pay up.

What the robbed respondents in this case will or will not do is their own choice.

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But, what this case, ladies and gentlemen, does clearly demonstrate to the public is the quality of New York State judiciary - its competence and its integrity.

You have just saddled yourself with this judge for the 2nd term last year - for another 9 years from now.

He is a supervising judge of "problem solving courts", where corruption is the ripest - all those hungry "providers of services" waiting to get mandatory clients who must pay up for the court-ordered "services" in order not to go to jail.

He is also a supervising judge of DWI courts.

And he is also absolutely incompetent and absolutely corrupt.

By the way - did you know that the U.S. Supreme Court has granted itself and all other judges in the country an immunity for violation of the law and for corruption, barring victims of such corruption from any remedy in a federal civil rights lawsuit?

Of course, there remain the (fake and non-existing) judicial discipline and the (non-existent) possibility that the former colleague of Judge Lambert, DA John Muehl who gets "victories" from John Lambert in criminal court will start criminal proceedings for corruption against Judge John Lambert, his law clerk Mark Oursler and their de factor client, Rep Delgado's (and City of Oneonta's) attorney David Merzig.

When hell freezes over, of course.

Doing good, people of Otsego County, aren't your?