Adjunct Law Prof. Blog
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I bring Sanders v. Grenadier Realty, Inc, ____Fed. Appx. _____, 2010 WL 605715 (2d Cir. Feb. 22, 2010), because it contains a nice concise summary of the new motion to dismiss standards under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). As the court explained:
To survive a motion to dismiss, plaintiffs must “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering whether a claim is facially plausible, we do not accept legal conclusions as true. See Ashcroft v. Iqbal, 129 S. Ct. at 1949-50 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Thus, the conclusion that defendants discriminated against plaintiffs on account of their race and national origin in violation of . . . section[] 1982” does not state a plausible claim to relief. While paragraph 17 does allege facts consistent with a discrimination claim, i.e., that non-black residents were granted subsidies, it nevertheless “stops short of the line between possibility and plausibility of entitlement to relief,” id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557 (internal quotation marks
omitted)), because plaintiffs do not allege any facts supporting an inference of racial animus. Accordingly, we conclude that the district court properly dismissed the § 1982 claim.
Mitchell H. Rubinstein
Sunday, May 30, 2010
Saturday, May 15, 2010
DA Investigates Claims $40 Million Business "Stolen" With Forged Contracts
Businesswoman Says American Dream Turned to "Nightmare"
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Part One of a Series
Following inquiries by The Black Star News, the District Attorney in Queens County has confirmed that his office is investigating allegations by a Guyanese immigrant that forged signatures on contracts she never signed were used to wrest control of her multi-million dollar businesses by a money lender who was at one time a prospective partner.
The immigrant, Christine Persaud, who's in her 40s, says she never signed partnership agreements with the prospective partner because of several clauses she didn't like in the proposed agreement, including one in which the money lender wanted future disputes to be arbitrated before an individual who had done some work for him in the past.
"Why would I sign a contract where someone says disputes should be taken to someone who has done some work for his family in the past?" says Persaud. She says control of her businesses, which brought in more than $10 million annually, was fraudulently snatched from her.
What's more, even though the prospective investor had only filed a claim for 50% ownership of one business, Caring Home Care, the arbitrator awarded him 100% ownership, more than $2 million in cash, and claims against a second Persaud business, records show.
"They don't even have original copies of these alleged contracts I signed," Persaud adds, referring to the documents used at arbitration to take away her businesses. "I challenge them to produce them so a forensics expert can review them."
"This is robbery," Persaud says, in an interview with The Black Star News. "I will not stop fighting until I expose the robbery and get my businesses back. This can't be allowed to happen in America. They are trying to turn my American dream into an American nightmare," she says, adding that she reported the alleged forgeries to the DA's office a year ago and provided documentation to Jonathan D. Scharf, an assistant district attorney in the Economic and Environmental Crimes Bureau.
She says her former finance manager also misappropriated nearly $200,000, according to an accountant Persaud hired; this manager is now working for the money lender who now controls the businesses Persaud founded.
"There is an ongoing investigation into the Christine Persaud case," says Helen Peterson, spokesperson at DA Richard Brown's Office, when asked about Persaud's allegations of the use of forged contracts to steal her business. "But it would be inappropriate to comment at this time."
Peterson declined to say whether the DA's office had already interviewed Persaud, the forensics expert who compared her signatures to those on the contracts, or any of the lawyers who have handled the case for her. "I am ready and willing to cooperate with the District Attorney or the U.S. Attorney," Persaud says.
Persaud estimates that her three businesses, which she built from scratch, are worth over $40 million. Caring Home Care, which provides nursing and home care services for the elderly, sick people, or those incapacitated, was founded in 1997. Persaud later started Liberty Home Care, as the business expanded, and Christine Nursing Center, for training home care
and nursing aides.
She says she now regrets the day she placed an advertisement in The New York Post in 2007, seeking payroll funding for Caring Home Care. Through the ad placement, she was introduced to a businessman named Abraham Klein.
Even though Caring alone brought in almost $9 million a year, payments for her clients took several weeks; in the meantime there was pressure to meet bi-weekly payroll, she says.
Persaud, a single mother, says at the time she was introduced to Klein, she had a new born --she now has a two and a half year old, and six month old twins, born by a surrogate mother-- so much of the negotiations for the payroll funding was done between Klein and Melquisedec Escobar, Caring's financial manager, a Philippines native whom Persaud sponsored for work papers, records show.
Klein agreed to fund the payroll, retaining 66% of the profit after all expenses cleared, while Persaud got 33%. Some financiers familiar with this line of business say these terms were overly-generous in Klein's favor.
Persaud says things initially went smoothly so she and Klein started negotiating a possible 50/50 partnership in Caring, which had about 300 employees. In addition to the payroll funding, Klein injected $100,000 as down payment on the proposed partnership, Persaud says. Since the health care industry is highly regulated, the partnership was contingent upon
Klein getting licensed by the State Department of Health, Persaud says.
However, if Klein wasn't licensed by the DOH within two years, then his $100,000 would be returned, with a 4% interest, Persaud says, and a copy of the proposed partnership agreement she says she never signed, shows.
Klein then brought his son Joel Klein and brother in law, Philip Gottehrer, to work at Caring, at his own expense, Persaud says. "I did not know they were planning to take my businesses," she says.
Persaud claims even Klein's attorney, Mendel Zilberberg, of Mendel Zilberberg & Associates, P.C., knows that the agreements enforced at arbitration were forgeries because she and an attorney who represented her during the negotiations, Samuel Rieff, had gone to Zilberberg's office at one point to sign the papers; she says she ultimately declined when Zilberberg wouldn't remove the terms she objected to.
When contacted by The Black Star News, Zilberberg declined to speak and through a spokesperson said: "We don't comment about ongoing cases." Through the spokesperson, he also declined to have questions submitted via e-mail message.
Persaud says her dispute with Klein began when he approached her in October 2008, for a $7 million line of credit through Caring Home Care, to finance expansion of a business he said he operated in China. Since she knew nothing about the business, she declined, she says.
A few months later, she learned that Klein had contacted some of her clients and identified himself as Caring's owner, she says. When she objected, he sent her a letter asking that the pair appear before the arbitrator named by Klein in the proposed contract, she says. "I was shocked when I then received the letter. I would have been happy to return his $100,000 with interest. He was not a partner or owner."
Klein has claimed the parties had signed one of the agreements on May 11, 2007, court papers show.
Rieff, the lawyer who represented Persaud during contract negotiations with Klein, later submitted an affidavit dated April 20, 2009 stating that he represented her and Caring Home Care through the end of 2008, during which time she never signed a partnership agreement.
"I was still negotiating terms of a proposed Agreement after May 17, 2007. These negotiations lasted an additional several months without an Agreement being signed," Rieff, the lawyer who represented Persaud, wrote in his affidavit.
Rieff, when contacted by The Black Star News on April 28, 2010, declined to comment about his affidavit, saying: "I don't represent her any longer and I don't comment to the media. I'm not going to answer any questions."
At the time the dispute started, Persaud had also hired another lawyer, Queens-based Eugene Levy, to handle Klein's attempt to take her to the arbitrator, Marvin Neiman, of Neiman & Mairanz, P.C., in Manhattan, whom she says Klein had proposed.
Neiman did not return a telephone message from The Black Star News seeking comment.
Levy had raised questions about the arbitration clause on what Persaud maintains was merely a proposed contract, records show. That section, referring to Persaud and Klein, said that the "parties acknowledge that Mr. Nieman represented some members of the Klein family in the past and hereby waive any conflict of interest." In yet another version of what Klein claims was also a signed document --and Persaud refutes-- the arbitration clause states that the "members acknowledge that Mr. Neiman may have represented some members of the Klein family in the past, and thereby waive any conflict of interest."
"Who in her right mind would sign a contract with that kind of language?" Persaud says. "I'm not that stupid."
Levy, the Persaud attorney wanted the issue addressed. "Unless there is a full disclosure as to your firm's representation of the Klein family we again strongly object to any 'arbitration proceeding' being held," Levy wrote to Neiman, in a letter dated March 17, 2009, and added, "There are serious jurisdictional and ethical issues involved in these contemplated
proceedings. Until the jurisdictional defects of this arbitration have been resolved our client does not submit to the authority of your office as arbitrator."
Nevertheless, in a letter dated March 18, 2009, Neiman countered: "I have reviewed the contents thereof and discovered that the statement in the arbitration clauses of the parties' agreement, that I represented members of the Klein family was incorrect as related to the Klein family in this matter, and was based on a similarity of names with former clients of
mine, so that when the issue was broached to me to serve as arbitrator in this matter, I informed the parties that I believed that I represented the Kleins in the past and that this should be known to all of the parties at the time of the execution of the agreement."
"So first he had represented the Klein family then, after my lawyer objects, suddenly he discovered that he had not represented Abraham Klein's family but another Klein? Who can believe that?" Persaud says.
Neiman also warned Levy in his letter that "if your letter is meant to convey to me that you will default in appearing at the arbitration, please be advised that you do so at your client's peril. The matter will proceed tomorrow as scheduled."
The records show that the arbitration hearing did proceed the next day, on March 19, 2009, at the offices of Neiman & Mairanz. In attendance were Neiman; Abraham Klein and his attorneys, Mendel Zilberberg, and Marvin L. Tenzer, of Tenzer & Lunin, LLP; and, by telephone was Paul Salazar, also of Zilberberg's firm.
The records also show that Zilberberg had asked that the transcripts be sealed. Persaud and her attorney Levy, who had challenged Neiman's qualification to be a neutral arbiter, were not there.
In addition to being awarded control of Caring, the most lucrative of Persaud's three businesses, Klein was also awarded $2,172,607.58, which he claimed he was owed by Caring even though he testified that he had put in about $800,000 in Caring and about $180,000 in Liberty Home Care, records show.
Klein was also awarded 50% claim on Liberty Home Care; he told Neiman during the arbitration that Persaud had also verbally agreed that he would be a partner in Liberty.
"Liberty was not even part of the dispute," Persaud says. "Klein loaned me about $150,00 to launch Liberty when things were still going well. There was no partnership agreement for Liberty because it was a loan. But Neiman gave him Liberty too, without even the benefit of a forged contract," Persaud says. "At least Caring was taken away with forged contracts. This is not nice."
During the arbitration, according to the transcript, Neiman had asked Klein how the money he said he took from Caring to give Persaud, for Liberty, was accounted for, the record shows. Neiman said, "if the money came out of Caring, how is it recorded on Caring's books? Is it recorded as an accrual of your--as a reduction of your liability or is it recorded as investment from Caring?"
"I don't exactly know" Klein had responded.
At the arbitration, three documents were presented as constituting the partnership agreement.
The Black Star News has reviewed copies of the disputed documents. Non of the three documents' signature page refers to an agreement between Klein and Persaud; but rather, Persaud and "X1". Presumably the signatures next to "X1" belongs to Klein.
On the final page of one of the documents, "Minutes of Meeting of Board of Directors of Better Hope Home Care Agency, Inc." the typed entity above Persaud's purported signature is identified as "Better Hope Home Care Agency, Inc" and not Caring Home Care.
Even Better Hope is then crossed out with a pen and substituted with "All Borough Community Home Care Inc." Then, there's a signature Persaud maintains is not hers; and there is a signature next to "X1"; presumably Klein's. The space underneath "Attest," presumably where a witness would have signed, is blank. There is no date; there is no notary stamp or
signature.
What's more, the three signatures attributed to Persaud, in the three different documents, all look different from each other. "Maybe they were forging by committee," Persaud says.
Robert F. Bey, president of ALR Forensics, in Rockville Centre, New York, examined the three documents against samples of her signature provided by Persaud and wrote, in a report dated May 11, 2009, that the "range of variation" in
the signature on the documents "contains some significant differences" compared to Persaud's known handwriting, he said.
He concluded, after reviewing additional Persaud signatures that it was "probable" that Persaud was "not the author of the signature" on the documents.
Bey also wondered, in an interview, why no originals of the three documents exist. "These are pretty important documents I must say--all of a sudden all three of them disappear and we just have copies? That's not logical to me."
"There are some indications in the questioned signatures that there may be some hesitation; maybe some slow writing which would be indicative of a forged signature," he said.
Bey, has been subpoenaed by Klein's attorney, Zilberberg, to produce the notes of all the work he's done on behalf of Persaud, on May 18, 2010 at Zilberberg's offices. He said when he asked Zilberberg about originals of the disputed documents, he was told they would be produced if needed.
Separately, Persaud says she informed the Department of Health (DOH) about the alleged fraud but that officials she spoke with took no action. Since Klein wasn't licensed by DOH, Neiman granted him power of attorney to sign Persaud's name, on documents that required DOH licensing, and for anything that he required to operate Caring.
"I'm sorry, but at this time we at the State Health Department will not be able to comment on the questions you have raised about Caring Home Care," said Tom Allocco, a department spokesman, when told by The Black Star that Persaud's allegations about the forged contracts was being investigated by the DA in Queens County.
With respect to the licensing, the Public Health Council had approved a change in Caring's ownership from Persaud to Caring LHCSA, LLC dba Caring Home Care "with Abraham Klein as the sole member of the LLC." He declined to comment when asked how the DA's probe might affect the matter. "How can they make such an approval based on fraud and while my case has now been appealed?" Persaud says.
After the March 19, 2009 session before Neiman, he returned his ruling in Klein's favor on March 31, and Klein moved to have the award confirmed in State Supreme Court in King's County. A hearing date of April 17 was set before Justice Arthur M. Schack.
On April 15, Levy, the Persaud attorney, left a message on the voicemail system in Zilberberg's office, which was closed for Passover observance, asking for an adjournment because he had another case to handle on April 17.
On the day before the hearing before Judge Schack, Levy had his secretary April Fischer, fax an affirmation of actual engagement to the judge's chambers stating that Levy was arguing another case, Pena vs. Occhiogrosso, on April 17, in State Supreme Court in Queens. (It later turns out that Levy had made a mistake; the proper title on his case was actually Pena vs. Pena, a matrimonial matter, on that same date before Judge Sidney Strauss, Index 025075/2006, records show).
Fischer later filed a sworn affidavit stating that she spoke with a member of Judge Schack's staff and was told that the proceeding would be adjourned until June 19, 2009.
Records also show that Zilberberg knew of Levy's request for an adjournement by the morning of April 17; he told his secretary to inform Levy that he was declining.
So, on April 17, 2009, the hearing did proceed before Judge Schack; a judgment was entered on default. Schack later wrote that Levy's affirmation of actual engagement had been defective because it had the incorrect case, no caption, and it didn't provide the name of the judge on the case.
Levy filed a motion to have the default vacated, with corrected papers; Judge Schack declined.
"So I lost my business, twice, without even having my day in court," says Persaud. "Why are they afraid of the evidence? Why not let it be decided on its merits through a trial?"
The Black Star News did not get a response to questions sent via e-mail message to the Unified Court System's spokesperson.
Persaud believes that Klein was assisted in seizing control of her business by Melquisedec Escobar, her former financial manager. She says an accountant discovered that Escobar, who wrote an affidavit claiming that he witnessed Persaud signing a partnership agreement with Klein, had allegedly embezzled at least $191,573 from Caring and Liberty. "Based on
the results of our examination, these actions, if proved in a court of law, could constitute a violation of criminal and/or civil law," the certified public accountant, Ibe Moses Nwankpa, wrote in a report dated March 19, 2009.
According to the accountant, Escobar had been authorizing checks and withdrawal slips to himself. The accountant wrote that Escobar had allegedly diverted $45,073 from Caring; $125,000 from Liberty; and an additional $21,500 were payments made to himself through an account he opened at Citibank, Liberty Ave., Richmond Hill, N.Y., 11419, under the name Mel Escobar/Caring. Most of these alleged thefts occurred between January 2007 and December 2008, the accountant wrote.
Nwankpa did not return a phone message seeking comment from The Black Star.
Escobar was made monitor at Caring by Neiman, and given a raise; he now works for Klein at Caring. Separately, Rabbi Jacob Spitzer, who is heavily involved in healthcare issues, was made the receiver shortly after the Neiman award.
"I don't know about it. You have to speak with our lawyer," Escobar said, when contacted by The Black Star News by telephone and asked about Persaud's allegations that her signatures had been forged on the contracts.
When reminded that he had signed an affidavit dated April 14, 2009, submitted to State Supreme Court in King's County in support of Klein's motion to have the Neiman award confirmed, he said, before hanging up the phone: "I don't know what you're asking. Goodbye."
Persaud says Escobar had been able to use her signature without her knowledge because he had once had her sign a one-page power of attorney, so he could handle Caring's taxes with the Internal Revenue Service. She says when she discovered the alleged Escobar thefts, she wrote to the Department of Homeland Security's U.S. Citizenship and Immigration Services on April 20, 2009, asking that Escobar's work papers be revoked.
Homeland Security wrote back on April 29, 2009 to inform Persaud that Escobar's work visa had been revoked, the record shows.
"Then I got a contempt order from Judge Schack saying I should have Escobar's work status restored within 24 hours," Persaud says, adding that she did not comply. "I thought the right thing to do is to report a theft."
"This judge is totally against me," Persaud said. "I don't know why he won't recuse himself. Don't I have any rights?"
During a recent hearing before in his chambers, in the presence of Persaud and the opposing counsel Judge Schack noted that Persaud had filed a complaint about him so everything would now have to be done by the book, she said. He was referring to a letter a friend wrote on her behalf, complaining about the judge to Ann Pau, the chief Administrative Judge, New York Unified Court System, Persaud said.
Persaud has been holed up at Liberty Home Care since Klein took total control of Caring a year ago. She says in the last few weeks, Klein's attorneys have been garnishing money from Liberty's clients --even though Neiman had awarded him a 50% claim and total control was to revert to Persaud once Klein was in control of Caring. She says Klein has been
sending letters to Liberty's clients, garnishing funds for services that her workers have already performed.
One of the notices to garnishee that Persaud says is being sent to Liberty's clients bears the letterhead of a City Marshall in Queens, Bruce Frankenberg; with Christine Persaud, and Caring Home Care Agency, as the debtor; Abraham Klein, as the creditor; and, Mendel Zilberberg & Associates, as attorneys for the creditor.
Persaud says if Judge Schack ordered an accounting, the records would show that Klein has more than recovered the $2,172,607.58 "wrongfully awarded" to him, through Caring's revenue. "There was $2.5 million in receivables when the business was taken from me, which more than pays for the gift Neiman gave to Klein," Persaud says. "Why is Judge Schack still allowing Klein to divert my clients when he should have no more interest in Liberty Home Care?"
Neiman's March 31, 2009 decision and award states, "..at such time that Klein is approved as the operator of Caring by the agencies with jurisdiction, Persaud shall then become the owner of Liberty free and clear of any equity claims of Klein therein."
It's unclear under what jurisdiction or authority that Klein continues to interfere with Liberty's business, Persaud says. "He places illegal garnishes on money due to Liberty," she says. "He is making me more determined to expose the truth."
Another attorney who is working on Persaud's case, Lawrence E. Kaye, says, of Schack, "The judge is essentially punishing her for the mistakes of her lawyer."
Persaud says the year-long tussle with Klein has ruined her health. She says since having intestinal surgery last July, she hasn't been able to heal due to the stress. Persaud takes 650 milligrams of Percocet (oxycodone) every four to six hours, to deal with acute severe pain. Still, even though her doctor, Usukumah E. Usukumah, wrote a note on May 10, 2010, Judge Schack has ordered Persaud to appear for deposition before Klein's attorney Zilberberg, who is seeking to uncover assets; the deposition, which started last week, continues tomorrow at the court house in King's County.
Dr. Usukumah, an obstetrician and gynecologist, wrote that "the medication, a narcotic, will definitely interfere with her sensorium and ability to rationally reason. She should be excused from any legal responsibilites until she is clinically well to do so."
In the meantime, another attorney, Stephen Preziosi, filed an appeal on May 3, 2010 to the Second Department, seeking a reversal of Judge Schack's refusal to vacate his confirmation of the Neiman award to Klein.
"He issued a default judgment saying the other side didn't show up when the other side had sent a sworn statement saying I'm engaged in the court room," Preziosi said. "Generally any judge or another attorney would extend the courtesy to
another attorney saying 'okay, you're engaged in anther case, okay so we'll adjourn. We'll put it over to another date when you can be here and litigate on the merits rather than find by default.' Default judgments are frowned upon by all the courts in New York. The courts prefer to judge and decide cases on their merits based on the arguments of both parties not by
default. That's right out of the case law."
Persaud is popular in the Richmond Hill, Queens, neighborhood where she runs her businesses and a few years ago, she started a food pantry, handing out groceries to needy families every Friday afternoon, in front of her business. She says in the beginning, about 20 people showed up; now she hands out food to about 500 people each Friday afternoon.
Last Friday, several of these families showed up to demonstrate in her support, with some men and women on wheelchairs, holding signs that read "Hands off Liberty," and "Stop Feasting On Other People's Labor."
Persaud said: "I don't know how I can help them if they steal all my businesses."
The Black Star News is an investigative newspaper. Please send e-mail messages to milton@blackstarnews.com or call (212) 481-7745 if you have documentation about cases that need to be investigated.
"Speaking Truth To Empower."
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Part One of a Series
Following inquiries by The Black Star News, the District Attorney in Queens County has confirmed that his office is investigating allegations by a Guyanese immigrant that forged signatures on contracts she never signed were used to wrest control of her multi-million dollar businesses by a money lender who was at one time a prospective partner.
The immigrant, Christine Persaud, who's in her 40s, says she never signed partnership agreements with the prospective partner because of several clauses she didn't like in the proposed agreement, including one in which the money lender wanted future disputes to be arbitrated before an individual who had done some work for him in the past.
"Why would I sign a contract where someone says disputes should be taken to someone who has done some work for his family in the past?" says Persaud. She says control of her businesses, which brought in more than $10 million annually, was fraudulently snatched from her.
What's more, even though the prospective investor had only filed a claim for 50% ownership of one business, Caring Home Care, the arbitrator awarded him 100% ownership, more than $2 million in cash, and claims against a second Persaud business, records show.
"They don't even have original copies of these alleged contracts I signed," Persaud adds, referring to the documents used at arbitration to take away her businesses. "I challenge them to produce them so a forensics expert can review them."
"This is robbery," Persaud says, in an interview with The Black Star News. "I will not stop fighting until I expose the robbery and get my businesses back. This can't be allowed to happen in America. They are trying to turn my American dream into an American nightmare," she says, adding that she reported the alleged forgeries to the DA's office a year ago and provided documentation to Jonathan D. Scharf, an assistant district attorney in the Economic and Environmental Crimes Bureau.
She says her former finance manager also misappropriated nearly $200,000, according to an accountant Persaud hired; this manager is now working for the money lender who now controls the businesses Persaud founded.
"There is an ongoing investigation into the Christine Persaud case," says Helen Peterson, spokesperson at DA Richard Brown's Office, when asked about Persaud's allegations of the use of forged contracts to steal her business. "But it would be inappropriate to comment at this time."
Peterson declined to say whether the DA's office had already interviewed Persaud, the forensics expert who compared her signatures to those on the contracts, or any of the lawyers who have handled the case for her. "I am ready and willing to cooperate with the District Attorney or the U.S. Attorney," Persaud says.
Persaud estimates that her three businesses, which she built from scratch, are worth over $40 million. Caring Home Care, which provides nursing and home care services for the elderly, sick people, or those incapacitated, was founded in 1997. Persaud later started Liberty Home Care, as the business expanded, and Christine Nursing Center, for training home care
and nursing aides.
She says she now regrets the day she placed an advertisement in The New York Post in 2007, seeking payroll funding for Caring Home Care. Through the ad placement, she was introduced to a businessman named Abraham Klein.
Even though Caring alone brought in almost $9 million a year, payments for her clients took several weeks; in the meantime there was pressure to meet bi-weekly payroll, she says.
Persaud, a single mother, says at the time she was introduced to Klein, she had a new born --she now has a two and a half year old, and six month old twins, born by a surrogate mother-- so much of the negotiations for the payroll funding was done between Klein and Melquisedec Escobar, Caring's financial manager, a Philippines native whom Persaud sponsored for work papers, records show.
Klein agreed to fund the payroll, retaining 66% of the profit after all expenses cleared, while Persaud got 33%. Some financiers familiar with this line of business say these terms were overly-generous in Klein's favor.
Persaud says things initially went smoothly so she and Klein started negotiating a possible 50/50 partnership in Caring, which had about 300 employees. In addition to the payroll funding, Klein injected $100,000 as down payment on the proposed partnership, Persaud says. Since the health care industry is highly regulated, the partnership was contingent upon
Klein getting licensed by the State Department of Health, Persaud says.
However, if Klein wasn't licensed by the DOH within two years, then his $100,000 would be returned, with a 4% interest, Persaud says, and a copy of the proposed partnership agreement she says she never signed, shows.
Klein then brought his son Joel Klein and brother in law, Philip Gottehrer, to work at Caring, at his own expense, Persaud says. "I did not know they were planning to take my businesses," she says.
Persaud claims even Klein's attorney, Mendel Zilberberg, of Mendel Zilberberg & Associates, P.C., knows that the agreements enforced at arbitration were forgeries because she and an attorney who represented her during the negotiations, Samuel Rieff, had gone to Zilberberg's office at one point to sign the papers; she says she ultimately declined when Zilberberg wouldn't remove the terms she objected to.
When contacted by The Black Star News, Zilberberg declined to speak and through a spokesperson said: "We don't comment about ongoing cases." Through the spokesperson, he also declined to have questions submitted via e-mail message.
Persaud says her dispute with Klein began when he approached her in October 2008, for a $7 million line of credit through Caring Home Care, to finance expansion of a business he said he operated in China. Since she knew nothing about the business, she declined, she says.
A few months later, she learned that Klein had contacted some of her clients and identified himself as Caring's owner, she says. When she objected, he sent her a letter asking that the pair appear before the arbitrator named by Klein in the proposed contract, she says. "I was shocked when I then received the letter. I would have been happy to return his $100,000 with interest. He was not a partner or owner."
Klein has claimed the parties had signed one of the agreements on May 11, 2007, court papers show.
Rieff, the lawyer who represented Persaud during contract negotiations with Klein, later submitted an affidavit dated April 20, 2009 stating that he represented her and Caring Home Care through the end of 2008, during which time she never signed a partnership agreement.
"I was still negotiating terms of a proposed Agreement after May 17, 2007. These negotiations lasted an additional several months without an Agreement being signed," Rieff, the lawyer who represented Persaud, wrote in his affidavit.
Rieff, when contacted by The Black Star News on April 28, 2010, declined to comment about his affidavit, saying: "I don't represent her any longer and I don't comment to the media. I'm not going to answer any questions."
At the time the dispute started, Persaud had also hired another lawyer, Queens-based Eugene Levy, to handle Klein's attempt to take her to the arbitrator, Marvin Neiman, of Neiman & Mairanz, P.C., in Manhattan, whom she says Klein had proposed.
Neiman did not return a telephone message from The Black Star News seeking comment.
Levy had raised questions about the arbitration clause on what Persaud maintains was merely a proposed contract, records show. That section, referring to Persaud and Klein, said that the "parties acknowledge that Mr. Nieman represented some members of the Klein family in the past and hereby waive any conflict of interest." In yet another version of what Klein claims was also a signed document --and Persaud refutes-- the arbitration clause states that the "members acknowledge that Mr. Neiman may have represented some members of the Klein family in the past, and thereby waive any conflict of interest."
"Who in her right mind would sign a contract with that kind of language?" Persaud says. "I'm not that stupid."
Levy, the Persaud attorney wanted the issue addressed. "Unless there is a full disclosure as to your firm's representation of the Klein family we again strongly object to any 'arbitration proceeding' being held," Levy wrote to Neiman, in a letter dated March 17, 2009, and added, "There are serious jurisdictional and ethical issues involved in these contemplated
proceedings. Until the jurisdictional defects of this arbitration have been resolved our client does not submit to the authority of your office as arbitrator."
Nevertheless, in a letter dated March 18, 2009, Neiman countered: "I have reviewed the contents thereof and discovered that the statement in the arbitration clauses of the parties' agreement, that I represented members of the Klein family was incorrect as related to the Klein family in this matter, and was based on a similarity of names with former clients of
mine, so that when the issue was broached to me to serve as arbitrator in this matter, I informed the parties that I believed that I represented the Kleins in the past and that this should be known to all of the parties at the time of the execution of the agreement."
"So first he had represented the Klein family then, after my lawyer objects, suddenly he discovered that he had not represented Abraham Klein's family but another Klein? Who can believe that?" Persaud says.
Neiman also warned Levy in his letter that "if your letter is meant to convey to me that you will default in appearing at the arbitration, please be advised that you do so at your client's peril. The matter will proceed tomorrow as scheduled."
The records show that the arbitration hearing did proceed the next day, on March 19, 2009, at the offices of Neiman & Mairanz. In attendance were Neiman; Abraham Klein and his attorneys, Mendel Zilberberg, and Marvin L. Tenzer, of Tenzer & Lunin, LLP; and, by telephone was Paul Salazar, also of Zilberberg's firm.
The records also show that Zilberberg had asked that the transcripts be sealed. Persaud and her attorney Levy, who had challenged Neiman's qualification to be a neutral arbiter, were not there.
In addition to being awarded control of Caring, the most lucrative of Persaud's three businesses, Klein was also awarded $2,172,607.58, which he claimed he was owed by Caring even though he testified that he had put in about $800,000 in Caring and about $180,000 in Liberty Home Care, records show.
Klein was also awarded 50% claim on Liberty Home Care; he told Neiman during the arbitration that Persaud had also verbally agreed that he would be a partner in Liberty.
"Liberty was not even part of the dispute," Persaud says. "Klein loaned me about $150,00 to launch Liberty when things were still going well. There was no partnership agreement for Liberty because it was a loan. But Neiman gave him Liberty too, without even the benefit of a forged contract," Persaud says. "At least Caring was taken away with forged contracts. This is not nice."
During the arbitration, according to the transcript, Neiman had asked Klein how the money he said he took from Caring to give Persaud, for Liberty, was accounted for, the record shows. Neiman said, "if the money came out of Caring, how is it recorded on Caring's books? Is it recorded as an accrual of your--as a reduction of your liability or is it recorded as investment from Caring?"
"I don't exactly know" Klein had responded.
At the arbitration, three documents were presented as constituting the partnership agreement.
The Black Star News has reviewed copies of the disputed documents. Non of the three documents' signature page refers to an agreement between Klein and Persaud; but rather, Persaud and "X1". Presumably the signatures next to "X1" belongs to Klein.
On the final page of one of the documents, "Minutes of Meeting of Board of Directors of Better Hope Home Care Agency, Inc." the typed entity above Persaud's purported signature is identified as "Better Hope Home Care Agency, Inc" and not Caring Home Care.
Even Better Hope is then crossed out with a pen and substituted with "All Borough Community Home Care Inc." Then, there's a signature Persaud maintains is not hers; and there is a signature next to "X1"; presumably Klein's. The space underneath "Attest," presumably where a witness would have signed, is blank. There is no date; there is no notary stamp or
signature.
What's more, the three signatures attributed to Persaud, in the three different documents, all look different from each other. "Maybe they were forging by committee," Persaud says.
Robert F. Bey, president of ALR Forensics, in Rockville Centre, New York, examined the three documents against samples of her signature provided by Persaud and wrote, in a report dated May 11, 2009, that the "range of variation" in
the signature on the documents "contains some significant differences" compared to Persaud's known handwriting, he said.
He concluded, after reviewing additional Persaud signatures that it was "probable" that Persaud was "not the author of the signature" on the documents.
Bey also wondered, in an interview, why no originals of the three documents exist. "These are pretty important documents I must say--all of a sudden all three of them disappear and we just have copies? That's not logical to me."
"There are some indications in the questioned signatures that there may be some hesitation; maybe some slow writing which would be indicative of a forged signature," he said.
Bey, has been subpoenaed by Klein's attorney, Zilberberg, to produce the notes of all the work he's done on behalf of Persaud, on May 18, 2010 at Zilberberg's offices. He said when he asked Zilberberg about originals of the disputed documents, he was told they would be produced if needed.
Separately, Persaud says she informed the Department of Health (DOH) about the alleged fraud but that officials she spoke with took no action. Since Klein wasn't licensed by DOH, Neiman granted him power of attorney to sign Persaud's name, on documents that required DOH licensing, and for anything that he required to operate Caring.
"I'm sorry, but at this time we at the State Health Department will not be able to comment on the questions you have raised about Caring Home Care," said Tom Allocco, a department spokesman, when told by The Black Star that Persaud's allegations about the forged contracts was being investigated by the DA in Queens County.
With respect to the licensing, the Public Health Council had approved a change in Caring's ownership from Persaud to Caring LHCSA, LLC dba Caring Home Care "with Abraham Klein as the sole member of the LLC." He declined to comment when asked how the DA's probe might affect the matter. "How can they make such an approval based on fraud and while my case has now been appealed?" Persaud says.
After the March 19, 2009 session before Neiman, he returned his ruling in Klein's favor on March 31, and Klein moved to have the award confirmed in State Supreme Court in King's County. A hearing date of April 17 was set before Justice Arthur M. Schack.
On April 15, Levy, the Persaud attorney, left a message on the voicemail system in Zilberberg's office, which was closed for Passover observance, asking for an adjournment because he had another case to handle on April 17.
On the day before the hearing before Judge Schack, Levy had his secretary April Fischer, fax an affirmation of actual engagement to the judge's chambers stating that Levy was arguing another case, Pena vs. Occhiogrosso, on April 17, in State Supreme Court in Queens. (It later turns out that Levy had made a mistake; the proper title on his case was actually Pena vs. Pena, a matrimonial matter, on that same date before Judge Sidney Strauss, Index 025075/2006, records show).
Fischer later filed a sworn affidavit stating that she spoke with a member of Judge Schack's staff and was told that the proceeding would be adjourned until June 19, 2009.
Records also show that Zilberberg knew of Levy's request for an adjournement by the morning of April 17; he told his secretary to inform Levy that he was declining.
So, on April 17, 2009, the hearing did proceed before Judge Schack; a judgment was entered on default. Schack later wrote that Levy's affirmation of actual engagement had been defective because it had the incorrect case, no caption, and it didn't provide the name of the judge on the case.
Levy filed a motion to have the default vacated, with corrected papers; Judge Schack declined.
"So I lost my business, twice, without even having my day in court," says Persaud. "Why are they afraid of the evidence? Why not let it be decided on its merits through a trial?"
The Black Star News did not get a response to questions sent via e-mail message to the Unified Court System's spokesperson.
Persaud believes that Klein was assisted in seizing control of her business by Melquisedec Escobar, her former financial manager. She says an accountant discovered that Escobar, who wrote an affidavit claiming that he witnessed Persaud signing a partnership agreement with Klein, had allegedly embezzled at least $191,573 from Caring and Liberty. "Based on
the results of our examination, these actions, if proved in a court of law, could constitute a violation of criminal and/or civil law," the certified public accountant, Ibe Moses Nwankpa, wrote in a report dated March 19, 2009.
According to the accountant, Escobar had been authorizing checks and withdrawal slips to himself. The accountant wrote that Escobar had allegedly diverted $45,073 from Caring; $125,000 from Liberty; and an additional $21,500 were payments made to himself through an account he opened at Citibank, Liberty Ave., Richmond Hill, N.Y., 11419, under the name Mel Escobar/Caring. Most of these alleged thefts occurred between January 2007 and December 2008, the accountant wrote.
Nwankpa did not return a phone message seeking comment from The Black Star.
Escobar was made monitor at Caring by Neiman, and given a raise; he now works for Klein at Caring. Separately, Rabbi Jacob Spitzer, who is heavily involved in healthcare issues, was made the receiver shortly after the Neiman award.
"I don't know about it. You have to speak with our lawyer," Escobar said, when contacted by The Black Star News by telephone and asked about Persaud's allegations that her signatures had been forged on the contracts.
When reminded that he had signed an affidavit dated April 14, 2009, submitted to State Supreme Court in King's County in support of Klein's motion to have the Neiman award confirmed, he said, before hanging up the phone: "I don't know what you're asking. Goodbye."
Persaud says Escobar had been able to use her signature without her knowledge because he had once had her sign a one-page power of attorney, so he could handle Caring's taxes with the Internal Revenue Service. She says when she discovered the alleged Escobar thefts, she wrote to the Department of Homeland Security's U.S. Citizenship and Immigration Services on April 20, 2009, asking that Escobar's work papers be revoked.
Homeland Security wrote back on April 29, 2009 to inform Persaud that Escobar's work visa had been revoked, the record shows.
"Then I got a contempt order from Judge Schack saying I should have Escobar's work status restored within 24 hours," Persaud says, adding that she did not comply. "I thought the right thing to do is to report a theft."
"This judge is totally against me," Persaud said. "I don't know why he won't recuse himself. Don't I have any rights?"
During a recent hearing before in his chambers, in the presence of Persaud and the opposing counsel Judge Schack noted that Persaud had filed a complaint about him so everything would now have to be done by the book, she said. He was referring to a letter a friend wrote on her behalf, complaining about the judge to Ann Pau, the chief Administrative Judge, New York Unified Court System, Persaud said.
Persaud has been holed up at Liberty Home Care since Klein took total control of Caring a year ago. She says in the last few weeks, Klein's attorneys have been garnishing money from Liberty's clients --even though Neiman had awarded him a 50% claim and total control was to revert to Persaud once Klein was in control of Caring. She says Klein has been
sending letters to Liberty's clients, garnishing funds for services that her workers have already performed.
One of the notices to garnishee that Persaud says is being sent to Liberty's clients bears the letterhead of a City Marshall in Queens, Bruce Frankenberg; with Christine Persaud, and Caring Home Care Agency, as the debtor; Abraham Klein, as the creditor; and, Mendel Zilberberg & Associates, as attorneys for the creditor.
Persaud says if Judge Schack ordered an accounting, the records would show that Klein has more than recovered the $2,172,607.58 "wrongfully awarded" to him, through Caring's revenue. "There was $2.5 million in receivables when the business was taken from me, which more than pays for the gift Neiman gave to Klein," Persaud says. "Why is Judge Schack still allowing Klein to divert my clients when he should have no more interest in Liberty Home Care?"
Neiman's March 31, 2009 decision and award states, "..at such time that Klein is approved as the operator of Caring by the agencies with jurisdiction, Persaud shall then become the owner of Liberty free and clear of any equity claims of Klein therein."
It's unclear under what jurisdiction or authority that Klein continues to interfere with Liberty's business, Persaud says. "He places illegal garnishes on money due to Liberty," she says. "He is making me more determined to expose the truth."
Another attorney who is working on Persaud's case, Lawrence E. Kaye, says, of Schack, "The judge is essentially punishing her for the mistakes of her lawyer."
Persaud says the year-long tussle with Klein has ruined her health. She says since having intestinal surgery last July, she hasn't been able to heal due to the stress. Persaud takes 650 milligrams of Percocet (oxycodone) every four to six hours, to deal with acute severe pain. Still, even though her doctor, Usukumah E. Usukumah, wrote a note on May 10, 2010, Judge Schack has ordered Persaud to appear for deposition before Klein's attorney Zilberberg, who is seeking to uncover assets; the deposition, which started last week, continues tomorrow at the court house in King's County.
Dr. Usukumah, an obstetrician and gynecologist, wrote that "the medication, a narcotic, will definitely interfere with her sensorium and ability to rationally reason. She should be excused from any legal responsibilites until she is clinically well to do so."
In the meantime, another attorney, Stephen Preziosi, filed an appeal on May 3, 2010 to the Second Department, seeking a reversal of Judge Schack's refusal to vacate his confirmation of the Neiman award to Klein.
"He issued a default judgment saying the other side didn't show up when the other side had sent a sworn statement saying I'm engaged in the court room," Preziosi said. "Generally any judge or another attorney would extend the courtesy to
another attorney saying 'okay, you're engaged in anther case, okay so we'll adjourn. We'll put it over to another date when you can be here and litigate on the merits rather than find by default.' Default judgments are frowned upon by all the courts in New York. The courts prefer to judge and decide cases on their merits based on the arguments of both parties not by
default. That's right out of the case law."
Persaud is popular in the Richmond Hill, Queens, neighborhood where she runs her businesses and a few years ago, she started a food pantry, handing out groceries to needy families every Friday afternoon, in front of her business. She says in the beginning, about 20 people showed up; now she hands out food to about 500 people each Friday afternoon.
Last Friday, several of these families showed up to demonstrate in her support, with some men and women on wheelchairs, holding signs that read "Hands off Liberty," and "Stop Feasting On Other People's Labor."
Persaud said: "I don't know how I can help them if they steal all my businesses."
The Black Star News is an investigative newspaper. Please send e-mail messages to milton@blackstarnews.com or call (212) 481-7745 if you have documentation about cases that need to be investigated.
"Speaking Truth To Empower."
Tuesday, May 4, 2010
Senator John Sampson, Now Also "Of Counsel" To Belluck & Fox, Has Reached Past The Middle Towards The Top
Albany
Senate's John Sampson Scores Big With Law Firm
By Tom Robbins, Monday, Jan. 4 2010 @ 10:02AM
LINK
It's good to be the king! State senate leader John Sampson - who only a few months was just another Court Street lawyer scurrying for cases in Brooklyn - has hit the big time. The Post reports that the Democratic majority leader is now "of counsel" to one of the state's biggest personal injury law firms, Belluck & Fox.
As the Post's Brendan Scott points out, this gives the powerful state Trial Lawyers Association a pair of bookends at both sides of the state legislature: Assembly speaker Shelly Silver has a similar gig with another P.I. giant, Weitz & Luxenberg.
Sampson spokesman Austin Shafran told the Post that his boss's new gig "never will be in conflict with his official duties." But he declined to talk turkey about the size of Sampson's new paycheck. Under current state ethics laws, Sampson doesn't have to say. But if the ethics reform package now pending in the senate passes, both Sampson and Silver will have to disclose the range of their incomes, including a new category for those earning over seven-figures. Any clients who do state business must also be disclosed. The current porous ethics disclosure rules allowed Sampson's predecessor, former Republican senate boss Joe Bruno, to secretly pull in millions, a scheme that led to his conviction in Albany federal court last month.
There also could be some political tea leaves to be read here: Sampson has been trying to duck questions about his preferences for this year's gubernatorial race, but Joseph Belluck, the lead partner in Sampson's new firm, has already voted - and heavily - with his pocket book. Campaign records show the lawyer has already anted up $55,900 to Cuomo's swollen campaign chest, which is expected to show a total of some $16 million when disclosed later this month. Belluck is also a major donor to the Democratic Senate Campaign committee, now headed by Sampson, giving $22,500 since 2006. Belluck was also a big booster of ex-gov Eliot Spitzer, donating $60,000 to him between 2004 and 2007. He gave another $16,200 to Paterson back in May 2006 when the former state senator was running as Spitzer's number two. Records show Belluck hasn't contributed directly to Paterson since then.
Albany
And Now Introducing State Senate Leader John Sampson ...
By Tom Robbins, Tuesday, Jun. 16 2009
LINK
Here are a few highlights on the career of John Sampson, the south Brooklyn state senator who is taking the reins from now-deposed state senate Democratic leader Malcolm Smith.
- Like Smith, Sampson is a soft-spoken pol who hasn't made a huge impression since he was elected to the senate in 1996. Also like Smith, Sampson has long held a large warm spot in his heart for the real estate industry, whose clout remains undiminished in Albany, be it Democrats or Republicans.
- A former Legal Aid attorney, Sampson figured out early in his career that there was more money to be made representing landlords than tenants. He hooked up with the law firm of Alter & Barbaro, headed by another ex-tenant lawyer who had seen the light, B. Mitchell Alter.
- Alter, a true wild man of the Court Street bar, recognized talent when he saw it. "Yeah, I encouraged him to think about politics," Alter told the Voice in 2005. "I said, 'You are a good-looking guy, you talk well. Politics might be a good thing for you.'"
- Sampson beat longtime incumbent Howard Babbush, a hack from the Thomas Jefferson Democratic club. It helped that Babbush had been a notorious semi-show in Albany for years; also that the senator had claimed for a decade that he was too ill to face larceny charges brought by Manhattan District Attorney Robert Morgenthau in a wide-ranging case against Albany pols.
- Sampson, whose father came from Guyana, won handily with the backing of then Democratic county leader Clarence Norman.
- Fast forward to 2005 when Norman himself faced indictment on multiple charges of embezzlement by District Attorney Joe Hynes, and Sampson decided to run for D.A. Norman was busy going to trial all through the primary season but he still rooted for his candidate. "I will be doing everything in my power to get rid of Joe Hynes by telling all of the people I can to vote for John Sampson," Norman told the Voice as he entered criminal court shortly before the primary election.
- Hynes' aides were so worried about Sampson winning and moving to quash all of the pending Norman investigations that they planned to bar him from the office until his inauguration, sources said.
- Sampson's resume didn't impress everyone. The Bar Association found him unqualified, saying he just didn't have the experience for the job. It hardly mattered. Sampson, the only African American in the campaign, finished a close second to Hynes in a four-way race, giving the D.A. (who has no significant primary opponent so far this year) a good scare.
- One more special highlight from the D.A. race was Sampson's trip to Israel with another wild man supporter, Democratic Assemblyman Dov Hikind from Brooklyn's Borough Park. There, Sampson saw something he really didn't like: orthodox Jewish settlers being ousted from illegal settlements in Gaza. "This in certain ways is like slavery in America," said Sampson.
- Finally, Sampson could use the exposure his new post will bring: His current senate campaign committee lists just $1,041 in the bank.
Attention, ladies and gentlemen of the Greater Albany League of Lobbyists: The bar is now open!
Cuomo Said to Have $16 Million to Oust N.Y. Governor Paterson
LINK
Nov. 20 (Bloomberg) -- New York Attorney General Andrew Cuomo has raised $16 million in a campaign to challenge Democratic Governor David Paterson in 2010 for the state’s top job, according to a person familiar with his plans.
Cuomo, 51, also a Democrat, has hired five professional fundraisers since January and has set a goal of taking in $20 million by Jan. 15, a person familiar with his plans said. He had amassed more than $10 million in campaign funds as of July, according to the state Board of Elections.
“Twenty million dollars -- that’s the number that gets you in the door, and it will probably dwarf what Paterson has available,” said Hank Sheinkopf, a Manhattan-based political consultant who ran statewide campaigns for H. Carl McCall in the 2006 governor’s race and for Eliot Spitzer in 1998 in his state attorney general contest.
Former New York Mayor Rudolph Giuliani has decided not to run for governor, according to a person familiar with his plans. That makes it more difficult for Cuomo to argue Paterson should step aside, as White House officials had asked him to. Paterson, 55, was under pressure not to run, partly because polls showed he would lose to Giuliani, an unsuccessful GOP presidential candidate in 2008.
A Nov. 16 Siena Research Institute poll showed Giuliani beating Paterson in a governor’s race, 56 percent to 33 percent. The poll showed Cuomo would beat Paterson, 75 percent to 16 percent in a primary election. The survey of 800 voters had a margin of error of 3.5 percentage points.
Paterson’s Unpopularity
“I have a hard time seeing Paterson survive a Democratic primary challenge if he had to face one from Cuomo,” said Kenneth Sherrill, a political science professor at Hunter College in Manhattan. “I don’t think Paterson’s unpopularity can turn around that easily.”
The Democrats’ gubernatorial nominee may affect the success of other politicians on the ticket, including those running for the Legislature, which will determine new boundaries for U.S. congressional districts based on the 2010 census. The next governor will also take the lead in solving the state’s deficit, now estimated at $10 billion through March 2011, through spending cuts or tax increases.
“There’s a lot at stake nationally here,” said Douglas Muzzio, a professor of urban politics at Baruch College in Manhattan. “A disaster at the top of the ticket could bring some of them down.”
By March Cuomo, who was a U.S. Housing & Urban Development secretary under President Bill Clinton, intends to announce his candidacy by the end of March, according to two friends who described private conversations with him this month and last and asked not to be identified because the talks were confidential.
The attorney general’s strategy is to build on goodwill won since becoming the state’s chief prosecutor, the friends and political professionals said. The attorney general’s probes have targeted alleged abuses among student-loan companies, executive bonuses and alleged collusion among health insurers.
In an e-mailed statement released through Richard Bamberger, a spokesman for the attorney general’s office, Cuomo declined to discuss his political intentions for 2010.
“The attorney general has been clear that his focus remains doing the best job possible for the people of New York as attorney general,” Bamberger wrote. “Next year is an election year, and he’ll deal with the politics then.”
Jennifer Bayer, one of Cuomo’s fundraisers, denied there was a plan to run for governor.
“The only discussion there has ever been is about an attorney general campaign,” she said in an e-mail.
Paterson’s Funds
Paterson’s funds total about $5 million, said Richard Fife, his campaign manager. “We will have all the money we will need to win this race.”
The governor began advertising on television in early November, Fife said in a phone interview.
Fife declined to say whether Paterson expects a challenge from Cuomo.
“Andrew Cuomo has said he’s running for attorney general, and we take him at his word,” Fife said. “We’re planning our campaign around the governor’s record. We’re getting the message out, and we’re moving forward.”
Spitzer had raised $19 million by January of 2006, the year he ran for governor, according to state campaign records -- about $1 million less than Cuomo’s goal.
Paterson, who took office after Spitzer resigned amid a call-girl scandal in March 2008, has a job-approval rating that’s been stuck at about 30 percent or below since May, according to public opinion surveys.
Historic Lows
“His ratings have dropped to the lowest point of any governor in New York history, including Spitzer at the height of the sex scandal, since we started conducting surveys in 1983,” said Lee Miringoff, director of the Marist Institute for Public Opinion in Poughkeepsie, New York.
In a Sept. 24 survey, Marist reported that only 17 percent of state voters rated Paterson’s performance positively, with a margin of error of 4 percentage points.
The White House political director told Paterson that President Barack Obama had lost confidence in the governor’s ability to win the 2010 election, especially if Giuliani were to be the Republican candidate, the New York Times said, citing two unidentified Democrats.
Even without a Giuliani threat, Paterson would have to overcome the popularity of Cuomo, whose “favorability” rating is 70 percent among Democrats, according to the Nov. 16 Siena Research poll.
Cuomo’s entry into the governor’s race would begin a battle between scions of two New York Democratic dynasties.
Two Scions
The attorney general is the son of three-term former Governor Mario Cuomo while Paterson is the son of Basil Paterson, an attorney and a member of the Harlem-based political organization that produced former New York Mayor David Dinkins and U.S. Representative Charles Rangel, both Democrats.
Cuomo’s unannounced campaign has featured fundraisers at which talk of the governor’s race has been muted.
On Nov. 3, about 70 supporters paid $1,000 to $5,000 at an event in an 18th-floor apartment with terraces overlooking Central Park in the 37-story art-deco Sherry-Netherland hotel on Fifth Avenue. Cuomo spoke about the need for public integrity and his opposition to higher taxes at the Election Day fundraiser.
“It was a mesmerizing venue with breathtaking views that showed New York at its best,” said Ravi Batra, 54, a New York attorney who said he donated $5,000 that night to Cuomo’s campaign committee, titled “Andrew Cuomo 2010.”
$75,000 Raised
At the cocktail party, which two organizers said raised about $75,000, Cuomo “didn’t talk about running” to unseat Paterson, said New York billionaire John Catsimatidis, 61, who hosted the event in the apartment of Liberty Travel Inc. founder Gilbert Haroche. Another person who attended and asked, like the organizers, not to be identified said the attorney general told him privately he may announce plans as early as January to seek the governor’s job.
“He hasn’t publicly said he’s running,” said Sheinkopf, the McCall adviser. “He’s only making certain he’s ready to go.”
In 2002, Cuomo opposed McCall, who is black, for the Democratic gubernatorial nomination. Cuomo abandoned the effort after black Democratic leaders warned they wouldn’t support him if he won the nomination. McCall, 74, a former state comptroller, was aligned with the same Harlem-based political organization that helped Paterson, who is black, become a state Senate minority leader and Spitzer’s choice for lieutenant governor.
Experience Counts
Batra said he backed Cuomo because of his experience, first as a political adviser to his father, Mario, who was governor from 1983 to 1994, and later as HUD secretary from 1997 to 2001.
Andrew Cuomo became attorney general in 2007 and immediately generated headlines with investigations revealing kickbacks, gifts and free trips to colleges and financial aid officers by firms in the $85 billion student-loan industry.
He got AT&T Inc. and Time Warner Inc., two of the largest U.S. Internet service providers, to sign agreements to remove child-pornography Web sites from their servers and to block access to child-porn newsgroups. He forced companies such as American International Group Inc. and Merrill Lynch & Co. to disclose bonuses received after they received taxpayer aid.
In 2008, Cuomo and other regulators got Citigroup Inc., UBS AG and Merrill to agree to buy back billions in debt to settle claims they improperly touted auction-rate securities as safe, cash-like investments. Banks managing the auctions abandoned the $330 billion market in February 2008, stranding investors who could no longer sell the securities.
Guilty Plea
Last month, Cuomo obtained a guilty plea from Raymond Harding, former chairman of the state Liberal Party, who admitted he took more than $800,000 to do political favors for Alan Hevesi, 68, a former state comptroller. Cuomo is investigating fees paid to a Hevesi associate by investment firms seeking business with the state pension fund, which Hevesi oversaw.
An outgrowth of that investigation has been a Cuomo-drafted code of conduct barring use of so-called placement agents, middlemen who receive payments from investment firms to help them get contracts managing public pension funds.
Cuomo’s successes and poll ratings stand in contrast to his status in 2002, when he backed out of the race against McCall and then was the subject of news reports detailing his divorce from Kerry Kennedy, the daughter of Robert F. Kennedy, the U.S. senator from New York who was assassinated while campaigning for the U.S. presidency in 1968.
Low Polls
Paterson has blamed his low poll ratings on the state’s budget crisis, which has required him to recommend unpopular spending reductions. Unions responded to proposed cuts to health programs and school aid last year with a television ad campaign directed against him.
In recent weeks, Cuomo has traveled the state, attracting headlines in local newspapers by making appearances to help Democrats raise money. Since Labor Day, he’s held fundraising events at the rate of about one a week.
They included an Oct. 20 gathering of real estate industry backers at the Princeton Club hosted by John Zuccotti, chairman of Brookfield Financial Properties Inc.; a Nov. 16 luncheon in Washington, D.C., organized by Anthony Podesta, a lobbyist whose brother, John, headed Obama’s transition team; and a Nov. 18 breakfast at Manhattan’s Sheraton New York for attorneys. Another Sheraton event, a “birthday celebration for Andrew,” is planned for Dec. 17.
No Doubt
“I don’t think there’s any doubt he’s running for governor,” said Peter Harvey, a partner in the law firm Patterson Belknap Webb & Tyler LLP, as he walked out of the Nov. 18 Sheraton fundraiser.
Cuomo no longer makes his pitch for money by telling supporters he needs funds to get re-elected attorney general. When a reporter asked him on Oct. 29 if he was running for governor, he said: “Next year we’ll talk about next year.”
To contact the reporter on this story: Henry Goldman in New York City Hall at hgoldman@bloomberg.net.
Last Updated: November 20, 2009 00:01 EST
Friday, April 23, 2010
Who Owns Your Law Blog Content? Supreme Court Decision Highlights Issue
Real Lawyers Have Blogs
LINK
Of course you as a lawyer or legal professional own the content you publish to your law blog.
But yesterday's Supreme Court decision reinstating a settlement in New York Times v Tasini highlights the murky waters we're going to navigate on this issue as more and more publishers re-purpose your blog content, with and without your permission as the blogger.
Tasini, as reported by Adam Liptak of the New York Times, was a class action case brought by freelance writers claiming that newspapers and magazines had committed copyright infringement by making their contributions available through online databases.
"We wrote for your newspaper or magazine and now you guys are archiving our content in a database available to subscribers. In some cases you are licensing our content to third parties (Thomson Reuters, LexisNexis) who then sell access to databases including our content. You as a publisher are making more money off us freelancers by using our content in a fashion that we did not authorize."
That's the gist of the claim as I see it. I see it as a legitimate beef. So did a group of publishers who agreed to pay $18 million to the freelancers.
The publishers in that settlement, among newspaper companies like McClatchy and Knight Ridder, included LexisNexis owner Reed Elsevier and Thomson Reuters, owner of West Publishing and FindLaw.
Both West-FindLaw and LexisNexis are now looking to obtain law blog content. They're coming to LexBlog, to lawyers and law firms directly, and to outfits like Newstex who created a business by buying and selling the rights to blog content.
Any why not? Law blogs are quickly becoming a leading source, if not the leading source, of legal insight and commentary. Without law blogs, West-FindLaw and LexisNexis have gaping holes in databases of legal resources their subscribers are paying to access for legal research.
West and LexisNexis can can likely take excerpts or intro paragraphs of law blog content via Fair Use. In which case the full blog post would be linked to with users reading the full text on the blog itself. But if the full text of a blog post is not included in West and LexisNexis databases, the content is not subject to a search by users of West and LexisNexis. In addition, those legal publishers want users remaining at their websites, not going off to third party websites and blogs to read content retrieved in search results.
It will be the rare blogger who can approach the dualopolists (LexisNexis, Thomson Reuters West/FindLaw) to negotiate the licensing of their blog content. More likely we'll see blog aggregators with an editorial review process screening law blogs negotiating with LexisNexis and Thomson.
It may be that LexisNexis and Thomson will begin to monitor the legal blogosphere more closely to identify the thought leaders and approach them on licensing deals. But despite LexisNexis having some law centers including blogs and Thomson, I am told, wanting law blog content, I have not seen either company active among the legal blogging community. I'm not sure they're presently equipped to identify the best and brightest law bloggers.
When it comes time to license content to the big boys and other publishers, I'm apt to advise lawyers to get your blogged copy in as many places as possible without asking for compensation. Unlike freelancers whose business model is to charge for their copy, a lawyer already has great business model. Engage one's target audience via blogging so as to develop more legal work for which you get paid a fair sum.
Ought to be an interesting ride ahead. Who'd have thunk traditional legal publishers would need to address content being created by what's going to be tens of thousands of legal writers/bloggers? And who'd have thunk as a lawyer that LexisNexis and Thomson West would be coming to you asking for permission to use your scholarly works?
New York Times Co v Tasini
Tasini in Oyez
Findlaw
Review
LINK
Of course you as a lawyer or legal professional own the content you publish to your law blog.
But yesterday's Supreme Court decision reinstating a settlement in New York Times v Tasini highlights the murky waters we're going to navigate on this issue as more and more publishers re-purpose your blog content, with and without your permission as the blogger.
Tasini, as reported by Adam Liptak of the New York Times, was a class action case brought by freelance writers claiming that newspapers and magazines had committed copyright infringement by making their contributions available through online databases.
"We wrote for your newspaper or magazine and now you guys are archiving our content in a database available to subscribers. In some cases you are licensing our content to third parties (Thomson Reuters, LexisNexis) who then sell access to databases including our content. You as a publisher are making more money off us freelancers by using our content in a fashion that we did not authorize."
That's the gist of the claim as I see it. I see it as a legitimate beef. So did a group of publishers who agreed to pay $18 million to the freelancers.
The publishers in that settlement, among newspaper companies like McClatchy and Knight Ridder, included LexisNexis owner Reed Elsevier and Thomson Reuters, owner of West Publishing and FindLaw.
Both West-FindLaw and LexisNexis are now looking to obtain law blog content. They're coming to LexBlog, to lawyers and law firms directly, and to outfits like Newstex who created a business by buying and selling the rights to blog content.
Any why not? Law blogs are quickly becoming a leading source, if not the leading source, of legal insight and commentary. Without law blogs, West-FindLaw and LexisNexis have gaping holes in databases of legal resources their subscribers are paying to access for legal research.
West and LexisNexis can can likely take excerpts or intro paragraphs of law blog content via Fair Use. In which case the full blog post would be linked to with users reading the full text on the blog itself. But if the full text of a blog post is not included in West and LexisNexis databases, the content is not subject to a search by users of West and LexisNexis. In addition, those legal publishers want users remaining at their websites, not going off to third party websites and blogs to read content retrieved in search results.
It will be the rare blogger who can approach the dualopolists (LexisNexis, Thomson Reuters West/FindLaw) to negotiate the licensing of their blog content. More likely we'll see blog aggregators with an editorial review process screening law blogs negotiating with LexisNexis and Thomson.
It may be that LexisNexis and Thomson will begin to monitor the legal blogosphere more closely to identify the thought leaders and approach them on licensing deals. But despite LexisNexis having some law centers including blogs and Thomson, I am told, wanting law blog content, I have not seen either company active among the legal blogging community. I'm not sure they're presently equipped to identify the best and brightest law bloggers.
When it comes time to license content to the big boys and other publishers, I'm apt to advise lawyers to get your blogged copy in as many places as possible without asking for compensation. Unlike freelancers whose business model is to charge for their copy, a lawyer already has great business model. Engage one's target audience via blogging so as to develop more legal work for which you get paid a fair sum.
Ought to be an interesting ride ahead. Who'd have thunk traditional legal publishers would need to address content being created by what's going to be tens of thousands of legal writers/bloggers? And who'd have thunk as a lawyer that LexisNexis and Thomson West would be coming to you asking for permission to use your scholarly works?
New York Times Co v Tasini
Tasini in Oyez
Findlaw
Review
Former NYS Criminal Court Judge Lorin M. Duckman's 1998 Sanction Is Relevant To The Issue Of Holding Judges Accountable For Their Actions
or, was Duckman hounded out of office for political reasons?
IN THE MATTER OF HON. LORIN M. DUCKMAN, A JUDGE OF THE CRIMINAL COURT OF THE CITY OF NEW YORK, KINGS COUNTY, PETITIONER, FOR REVIEW OF A DETERMINATION OF STATE COMMISSION ON JUDICIAL CONDUCT, RESPONDENT.
92 N.Y.2d 141, 699 N.E.2d 872, 677 N.Y.S.2d 248 (1998).
July 7, 1998
SCJC No. 66
[98 NY Int. 0096]
Decided July 7, 1998
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Ronald G. Russo, for petitioner.
Gerald Stern, for respondent.
New York Criminal Bar Association; New York State
Association of Criminal Defense Lawyers and Brooklyn Bar
Association, amici curiae.
PER CURIAM:
The State Commission on Judicial Conduct has determined that petitioner, since April 1991 a Judge of the Criminal Court of the City of New York (Bronx County, 1991 1994; Kings County, 1994 1996), engaged in various acts of misconduct demonstrating apattern of injudicious behavior that renders him unfit to continue in office. Given petitioner's acknowledgment before us of many of the alleged acts of wrongdoing, the central issue on his appeal to this Court is one of appropriate sanction: should he be removed from office or censured? Like the Commission, we conclude that removal is the appropriate sanction.
I.
In a Formal Written Complaint dated June 5, 1996, the Commission charged that petitioner had willfully disregarded the law, displayed intemperate demeanor, abused the power of his office and exhibited bias against the prosecution. With 363 specifications, the Complaint made two formal charges. Charge I asserted that between October 1991 and February 1996 petitioner
"in the exercise of his judicial duties, willfully disregarded provisions of law that resulted in the improper dismissal of criminal charges, delivered ad hominem criticisms and injudicious lectures to assistant district attorneys that unfairly attributed to them improper and harsh values and judgments in their role as prosecutors and made intemperate, derisive and otherwise inappropriate comments to assistant district attorneys. * * * By reason of the foregoing, [petitioner] abused the power of his office, displayed evident bias against the prosecution, and acted in a manner inconsistent with and prejudicial to the fair and proper administration of justice."
Charge II alleged that between May 1992 and December 1995, petitioner engaged in certain specific acts of "intemperate and injudicious conduct." Petitioner denied all wrongdoing.
On November 6, 1996, Matthew J. Jasen, appointed by theCommission as Referee, commenced hearings that continued over a period of 20 days. The evidence included the testimony of 67 witnesses (29 for petitioner, 38 for the Commission), consuming more than 4,000 transcript pages, and 200 exhibits. In addition, the record before us includes a "Book of Letters," 112 letters largely from practitioners who appeared before petitioner both as prosecutors and as defense counsel attesting to his personal and professional qualities.
On May 28, 1997, the Referee filed his Report, a 157 page document summarizing in detail the evidence with respect to each alleged act of misconduct, annotated to the record (for the most part transcripts of court proceedings conducted by petitioner, and petitioner's own testimony).
In his "Findings of Fact" the Referee found that petitioner had committed all but one of the acts of misconduct charged (he sustained all but five specifications; two were withdrawn by the Commission). As "Conclusions of Law" the Referee determined that petitioner had violated the State Constitution, as well as specified provisions of the Code and Rules of Judicial Conduct. He further rejected the notion that it is common practice for Judges of the Criminal Court to engage in the misconduct found, and even if it were, each Judge individually "must abide by the ethical standards required of judges in the unified court system, and neither calendar congestion nor a judge's frustration excuses or mitigates thepattern of misconduct reflected in these findings of fact and conclusions of law." Finally, the Referee concluded that petitioner's "expressed belief in the propriety of his undisputed conduct, as set forth in the findings as to Charge [II], demonstrates a failure to recognize that such conduct was improper, and a failure to appreciate the proper roles of a Judge and a prosecutor in the criminal justice system."
Commission counsel then moved to confirm the Report and for a determination that petitioner be removed from office. Petitioner opposed the motion.
Petitioner waived confidentiality and on September 11, 1997, the Commission heard oral argument in a public session, at which both petitioner and his counsel appeared. Thereafter, the Commission considered the record of the proceeding and made findings of fact, concluding that petitioner violated several provisions of Canons 1, 2A and 3 of the Code of Judicial Conduct as well as the Rules Governing Judicial Conduct. Charges I and II were sustained insofar as they were consistent with the Commission's findings (several additional specifications of the Commission's complaint were not sustained), petitioner's misconduct was deemed established, and the Commission held that petitioner should be removed from office. A 50 page Appendix to the Commission's Determination describes each of the specifications of misconduct found by the Commission.
All 11 members agreed that petitioner had engaged inserious misconduct by his knowing disregard of the law and by his intemperate, disparaging name calling of young prosecutors and insensitive remarks. The Commission, however, issued five separate opinions, and it split seven to four on the issue of sanction. While the seven members agreed unanimously on the wrongdoing warranting removal, three would have gone further in their findings two members underscoring petitioner's "consistent and outrageous disregard of the law," and a third underscoring "the gravity of the misconduct found with respect to Charge II" and the fact that petitioner "repeatedly made inappropriate comments concerning gender and race which are antithetical to the role of a judge." Of the four Commission members who voted for censure rather than removal, one expressed the view that "a jurist who has sat on over 50,000 cases should not be removed for misconduct in only 19 cases." The other three, while agreeing that petitioner had committed serious judicial misconduct, asserted that, given all of the facts and circumstances, the appropriate sanction was censure.
After careful review of the evidence, we conclude that the Commission's determination sustaining the charges is supported by a preponderance of the evidence and that the sanction of removal is warranted (NY Const, art VI, § 22; Judiciary Law § 44).
II.
In our view, the credible evidence indicatingwrongdoing both in connection with case dispositions and in court proceedings generally was sufficient to support the Commission's findings of misconduct. Given the voluminous record, as well as the extensive factual digests already set forth both in the Commission's Determination and in the Referee's Report, [n.1] we will not particularize all of the individual incidents but instead will more broadly indicate the categories of misconduct into which they fall.
Misconduct in Connection with Case Dispositions: Largely consisting of transcripts of court proceedings before petitioner, the evidence establishes that petitioner willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal ("ACDs"). Cases were dismissed without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor. What is significant for present purposes is both that petitioner dismissed these cases in knowing disregard of requirements of the law ( see, e.g., CPL 140.45, 170.30, 170.35,170.40, 170.45, 170.55, 210.45), and the abusive, intemperate behavior he manifested in dismissing those cases, at times not permitting the attorney to make a record of an objection either to the disposition or in response to the accusations.
In the overwhelming number of these cases it is clear that petitioner dismissed accusatory instruments for facial insufficiency because the prosecutor refused to agree to petitioner's requests for an ACD or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted. Petitioner explained to the Commission that "there were times where [he] did things in the interests of justice, using the guise of facial insufficiency" to dispose of a case when he "thought it was right to do it." In his words:
"Sometimes in an effort to do justice, I used the vehicle of dismissals for facial insufficiency without making defense attorneys put their motions in writing, without giving the people an opportunity to amend or redraft, and sometimes without giving the people an opportunity to be heard fully." Illustratively, in one case where defendant was charged with menacing in the third degree for pointing what appeared to be a gun at children, at arraignment petitioner told the prosecutor "it's an ACD or it's dismissed." Petitioner refused to allow the prosecutor to present his argument as to why the accusatory instrument was in fact facially sufficient, denied his request that the dismissal motion be in writing and, after warning him not to "just come up with some nonsense and tell meyou want the opportunity to redraft," petitioner denied the prosecutor's request to rewrite the accusatory instrument. Petitioner also cautioned the prosecutor that he should "ACD and maintain the peace." When the prosecutor refused, petitioner dismissed the charge on concededly improper grounds. The prosecutor's reply, "Over the People's objection," evoked the following diatribe:
"THE COURT: Please don't say that. It's not over your objection. My objection is that you can't stand here and act like a lawyer. How are you going to proceed in this case? It's not over your objection. You are supposed to come into court don't smile, put that down and look at me I said to look at me, Mr. Petrillo. I am going to tell you what offends me. I tell you fifty times, it's not over your objection, you are given an opportunity to be heard. When you can't make out the charges, the charges are dismissed. These are people's lives. Based on that nonsense, you had a person go to jail. What am I supposed to say to you, about the lack of respect that I have for you prosecuting a person, when you don't have a case? You don't have an objection. You are just mouthing some words that somebody told you, for no reason, and insulting me, and I am insulted and I don't want to hear it again.
"MR. PETRILLO: I did not intend to insult
"THE COURT: Did I ask you to talk; did I? You told me it was over your objection, and I am telling you what my objection is and I speak last. He does it all the time, and you do it all the time and lawyers don't do that. They stand up here and do what they are supposed to do. You can't come up here, with a facially insufficient complaint, and say 'we are moving to dismiss or we are ACD'ing it.' It's too bad we don't have more who do. The case is over. I am not listening to you. Move away. Next case. Don't do it again. If you smile, you are going to find out what power I really have. Do you understand that? Do you understand that; yes or no?
"MR. PETRILLO: Yes, I do."
A transcript from another case reflects a similar colloquy between petitioner and two prosecutors:
"THE COURT: You want to ACD? Dismiss or ACD. That is your choice.
"MR. SACK: Judge I am not prepared to do either right now.
"THE COURT: You have a reason for that? Is there something I said that was wrong?
"MR. SACK: Judge, I am reviewing the write up.
"THE COURT: I think I gave you five minutes to look at it and Ms. Rice, you have a problem? Stand up. I didn't ask you to talk.
"MS. RICE: Do I have a problem, your Honor?
"THE COURT: I didn't ask you to talk. Then leave the courtroom and solve your problem.
"MS. RICE: You want me to leave now?
"THE COURT: Don't you shirk and give me weird looks, okay.
"MS. RICE: I apologize, your Honor, if I gave
"THE COURT: Here we go again. You want to dismiss or ACD the cases, Mr. Sack?
"MR. SACK: Judge, I see that a count is not charged. I therefore, with the Court's permission, move to add that to the Complaint at this time
"THE COURT: Your application is denied. Youcharged him with this. ACD or dismiss. If you want to re arrest him or go, go to their houses and charge them with the administrative code violation. Are you ready to do it?
"MR. SACK: With all due respect, your Honor, the factual allegations in the complaint do make out
"THE COURT: Didn't I just dismiss your application? You want me to you want to say it five more times? When I ask you and I rule that is it. Go on to the next point.
"MR. SACK: My next point, Judge, is to ask for bail.
"THE COURT: Charges dismissed. Good day."
Apart from knowingly disregarding procedural requirements of the law to reach his desired result, petitioner on his own dismissed a drunk driving prosecution, over the prosecutor's objection, where he thought a conviction would be unlikely, [n.2] and assumed facts where his own life experience suggested police misconduct. Court transcripts, for example, show petitioner in one case surmising that "defendant had taken a beating for causing two police officers to chase him for threeblocks." There having been no prior mention of a beating in the transcript, during the hearing before the Referee petitioner explained that his belief was based on the fact that defendant "looked rather disheveled."
Again, in another proceeding, petitioner speculated on the record: "Somebody in a car with a gun, police officer goes to the car and they don't move the cops then try to do something to get them out * * * what they did to get them out of the car, whether they were abused, grabbed, hit, berated * * *." And in yet another, where defendant was charged with obstructing governmental administration and disorderly conduct based on allegations that he had interfered with his brother's arrest, court transcripts indicate that petitioner insisted that the prosecutor agree to an ACD. When the prosecutor refused, petitioner asked defense counsel for a motion and dismissed the charges. In response to questioning before the Commission, petitioner admitted that he did not give proper notice before dismissing the charges, but it was his opinion that defendant only pushed the officer to protect his brother from injury. He knew his view was the correct one because he had "talk[ed] to a lot of people" and had heard from defense counsel "what was going on here." Petitioner explained: "I read things into cases and I'm not wrong about these things."
In yet another matter, the accusatory instrument charged defendant with assault in the third degree and harassmentbased on allegations that defendant "struck [the victim] with closed fist in the face, causing swelling and bruising to the face and to suffer substantial pain and to be alarmed." Petitioner argued that the prosecutor did not allege facts to make out an assault and described the alleged punch in the face as a "push": a "push is not an assault * * * It's harassment." After defendant pleaded guilty to harassment, petitioner asked defense counsel whether he wanted to move to dismiss the assault charge. Although the prosecutor argued that the victim "received swelling and bruising to the face" and suffered pain, petitioner rejected the prosecutor's argument as a "conclusion," and dismissed the misdemeanor assault for facial insufficiency.
In addition, petitioner knowingly disregarded statutory requirements in dismissing charges in the interest of justice, and twice imposed an ACD without the consent of prosecutors, berating them in the process. For example, the dismissal in the interest of justice involved a charge of theft of services for allegedly entering the New York City subway, in the Bronx, without paying a fare; defendant at the time had a similar charge pending against him in New York County, and four prior Class A misdemeanor convictions. When the prosecutor refused petitioner's request for a plea to disorderly conduct, with time served, petitioner lectured her about the need for jobs and health care, said she was not "doing justice" and was being "unreasonable" and dismissed the case, in knowing disregard ofthe requirements of a written motion for such relief and reasons for such dismissal set forth on the record ( see, CPL 210.45, 170.40, 170.45).
Misconduct in Court Proceedings Generally: The 16 cited instances of knowing disregard of the law are not the only credible evidence supporting the charges. Well beyond those proceedings, the Commission documented instances of petitioner's inappropriate behavior in his dealings with persons appearing before him, demonstrating impatience and intolerance, even at times ordering prosecutors who disagreed with him out of the courtroom.
Petitioner, for example, subjected prosecutors to harsh, personal criticisms when they would not accept his view as to the "worth" of a case. Petitioner admitted to the Commission that he chastised prosecutors for their bail recommendations because he did not want to be criticized for setting low bail. As one prosecutor reported in testimony before the Referee, after his bail recommendation petitioner accused him of "making him look bad in front of the audience." Petitioner asked another prosecutor if her bail recommendations were the "result of [her] middle class background"; another was criticized as "too lofty" to appear in his court; another as having "no guts." Petitioner's lectures about the unfair actions of "your society" or "your government" at times elicited laughter or applause in the courtroom.
Petitioner conceded that on several occasions he made derisive remarks in open court referring to prosecutors' allegiance to their office policies, calling them "good little soldiers," "good little soldier boys," "mannequins" and "puppets," or commenting that they were "earning another stripe on the arm" or "notch on the belt" every time they put someone in jail. In open court, he called them nicknames, such as "Princess" or "Princess Nancy," "Mr. Nuisance," and "Marshal Dillon" or "the Marshal." As lawyers testified, they felt belittled, degraded and demeaned by petitioner's open court sarcasm and ridicule. [n.3]
In the case of one prosecutor who is visually impaired, petitioner heatedly accused him of having broken his lectern by leaning on it. Petitioner, who was admittedly "distraught," "upset," "shocked" and "dismayed" by the damage to the lectern, told the prosecutor that he would "teach" him "how to properly stand up in court." Petitioner concedes that his law clerk "calmed [him] down" by assuring him that the lectern could befixed. A year later, when petitioner ran into the prosecutor after business hours at a restaurant bar near the courthouse, he said in a manner that was "not kidding" or "jovial" "he's the one who broke my lectern."
Petitioner told one female prosecutor that she was "too sexy" to wear flat shoes and that she had "nice legs" (petitioner denied the first comment but acknowledged the second); he admittedly told another that she looked better in shorter skirts. In a case involving two African American women, court transcripts reveal that petitioner, attempting to explain to a prosecutor why his disposition of the case an ACD was appropriate, stated: "At the risk of sounding racist and sexist, [the case] is really just two women, and you know sometimes certain things are just cultural." While petitioner strongly denies any racist or sexist bias, he admits making "isolated statements" which he characterizes as "aberrational in character," reflecting a familiarity not appropriate to his position. [n.4]
Incidents such as these, plainly inappropriate behavior for any Judge, are multiplied throughout the evidence and persuade us that the charges have been sustained.
III.
Having concluded from the proven facts that petitionerwillfully disregarded the law, abused the power of his office and engaged in injudicious behavior, we reach the crux of the present appeal: whether removal or public censure is appropriate ( see, NY Const, art VI, § 22[d]). We agree with the Commission that petitioner should be removed.
"[T]he purpose of judicial disciplinary proceedings is 'not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents'" ( Matter of Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [lll]). The actual levels of discipline to be imposed by the Court for judicial misconduct are, in the end, "institutional and collective judgment calls" ( Matter of Roberts, 91 NY2d 93, 97). They rest on our assessment of the individual facts of each case, as measured against the Code and Rules of Judicial Conduct and the prior precedents of this Court.
Not surprisingly, in the intensely fact specific inquiry before us the parties differ in their view of the more analogous precedent. Petitioner urges us to look to Matter of LaBelle (79 NY2d 350), where the Court concluded that the Commission had overstated both the number and the nature of petitioner's transgressions regarding commitments without bail and then rejected the determined sanction of removal in favor of censure. The Commission, in contrast, considers more pertinent Matter of Sardino v State Commn on Judicial Conduct (58 NY2d 286, 292), where the Court upheld a determination that the individualunder review had "'so distorted his role as a judge as to render him unfit to remain in judicial office'."
While finding no four square precedent each judicial misconduct appeal truly stands on its own facts we note that several of petitioner's arguments are analogous to arguments made by the Judge, and ultimately rejected by this Court, in Sardino ( see also, Matter of Reeves, 63 NY2d at 110 111, supra). We underscore, however, that this case is neither Sardino nor LaBelle.
Like petitioner here, Judge Sardino argued that he in fact felt no bias, nor was he motivated by animosity or self interest. As this Court observed, however, the perception of impartiality is as important as actual impartiality: Judges must conduct themselves "in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property" ( Matter of Sardino v State Commn on Judicial Conduct, 58 NY2d at 290 291, supra; see also, Code of Judicial Conduct, Canon 2A; 22 NYCRR § 100.2 [a "judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities"]; 22 NYCRR § 100.2(A) [a "judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"]).
Similarly, petitioner in Sardino argued unsuccessfullythat the number of abuses 62 over a two year period should not be viewed in isolation from his seven year career on the bench. As the Court noted, the number of abuses was not insignificant and, if viewed in the context of Sardino's entire career, would at best "establish that his behavior was erratic, which itself is inconsistent with a Judge's role" (58 NY2d at 291, supra). Here, too, petitioner urges that we credit his otherwise unblemished performance in a high stress, high volume court. The Court, however, has resisted any numerical yardstick for determining unfitness ( see, Matter of Hamel, 88 NY2d 317; Matter of Esworthy, 77 NY2d 280; Matter of VonderHeide, 72 NY2d 658; Matter of Sims, 61 NY2d 349). Rather, it must be the nature of the proven wrongdoing as well as the numbers that determine the appropriate sanction.
Moreover, in Sardino, as we do here, the Court questioned the veracity of the argument that many other Judges engaged in similar misconduct and concluded that, in any event, such evidence would be irrelevant. "Each Judge is personally obligated to act in accordance with the law and the standards of judicial conduct. If a Judge disregards or fails to meet these obligations the fact that others may be similarly derelict can provide no defense" ( Matter of Sardino v State Commn on Judicial Conduct, 58 NY2d at 291, supra; see also, Code of Judicial Conduct, Canon 1; Canon 3A[1]; 22 NYCRR § 100.1 [a "judge should participate in establishing, maintaining and enforcing highstandards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved"]; 22 NYCRR § 100.3[B][1]). Nor are Judges, in the interest of alleviating regrettable court congestion or indeed, even in the interest of empathy for defendants free to ignore the law in order to weed out cases they personally feel are unworthy of prosecution or clogging the system.
Petitioner's contention that his harsh treatment of young prosecutors was simply a consequence of his efforts to educate them to be more just is similarly unavailing. As the Commission noted: "[t]eaching need not involve angry screaming and humiliating invective and is not effective when the lesson is that a judge may abandon the law and abuse judicial authority."
Of significant concern as well and particularly relevant to the question of appropriate sanction is petitioner's refusal, throughout the Commission's initial investigation and the proceeding before the Referee, to acknowledge the impropriety of his behavior in wrongfully dismissing cases ( see, Matter of Aldrich v State Commn on Judicial Conduct, 58 NY2d 279, 283; Matter of Sims, 61 NY2d 349, 356; Matter of Shilling, 51 NY2d 397). As petitioner made clear in his testimony, he believes dispositions made in contravention of CPL requirements are permissible if they serve his definition of justice or conserve court resources by removing unworthy cases from an overburdened calendar. Testifying before the Referee, petitioner explained:"I think about what cases should be in this system and which cases shouldn't be in the system, and I think judges get to make that decision, and * * * if somebody comes and brings it to your attention and complains or asks you to do something, you can do something about it."
When petitioner was questioned before the Commission and the Referee about his handling of a number of cases, he was reluctant to acknowledge that the CPL required him to allow prosecutors to amend facially insufficient accusatory instruments. Even more troubling, however, are the numerous instances when petitioner testified that he had not abided by the CPL's amendment and notice requirements in disposing of a case, but still maintained that he had not been wrong in doing so. For example, petitioner explained before the Referee that although he "may have been wrong in reaching the decision [to dismiss in People v Shaw]," he believed that he "still did the right thing * * *." Similarly, when petitioner was questioned during the hearing about People v Zhao a case which he later acknowledged he "should not have dismissed" petitioner refused to admit that he had not acted in accordance with the law in disposing of the matter. Instead, petitioner insisted that his "legal ruling was correct." In People v Samuels, although he admitted to dismissing the charges "for the wrong reason," petitioner again refused to acknowledge before the Referee that he had not handledthe matter in accordance with the law. [n.5]
Additionally, with regard to several instances of clearly intemperate behavior, petitioner refused to admit that his comments were inappropriate. For example, petitioner testified during the hearing that he does not consider his asking a prosecutor whether he got his law license "on the back of an orange juice carton" to have been insulting. Moreover, despite considerable evidence to the contrary, petitioner maintained that his courtroom "was always run with courtesy."
In making the difficult choice between censure returning petitioner to the bench and removal, we find these examples particularly pertinent when combined with the numerous instances when Bureau Chiefs or Chief Assistant District Attorneys of Bronx and Kings Counties spoke with petitioner about his loss of temper and demeaning treatment of prosecutors whoappeared before him. Petitioner sometimes acknowledged the inappropriateness of what he had done and said he would try to calm down, yet the misconduct continued. This evidence not mentioned by the Commission's dissenters suggests that the confirmed findings of improper conduct are not isolated, acontextual, subjective instances, and it supports the inference that petitioner lacks the insight and self control to make fundamental changes in his attitude or judicial temperament. [n.6]
The foregoing leads us to conclude that the Commission has not, as in LaBelle, overstated the seriousness of petitioner's wrongdoing. Rather, the substantial record of petitioner's intentional disregard of the requirements of the law in order to achieve a personal sense of justice in particular cases before him, coupled with the substantial record of improper courtroom conduct and unresponsiveness to concerns flagged for him, persuade us that removal is the appropriate sanction.
Finally, we note several weighty concerns voiced by petitioner, by the dissenters and by amici relating to the origin of the Commission's investigation. The investigation was triggered not by appeals or complaints of wronged litigants or lawyers, but by a firestorm of public criticism generated by aseparate tragedy, as to which, in the end, petitioner's rulings were found to be a proper exercise of judicial discretion, not a basis for discipline. As petitioner points out, but for that tragedy as to which he has been fully exonerated likely no charges would have been lodged against him. There is, moreover, the deeply troubling suggestion not established on this record that prosecutors kept a "dossier" on petitioner, microscopically tracking him.
These concerns, which we share, center on a threat to the independence of the judiciary, a cornerstone of our democracy, posed by unwarranted criticism or the targeting of Judges. Judges must remain free to render unpopular decisions that they believe are required by law. Valid and vital though these concerns surely are, the difficult issue that confronts us in this matter is how to sanction the serious misconduct now fully documented before us that the firestorm has exposed. Plainly, wrongdoing in connection with initiating an investigation could not insulate an unfit judge; any such wrongdoing must be otherwise redressed. We are satisfied that in this particular case removal, rather than censure, does not imperil the independence of the judiciary. Indeed, on the merits of this case, the judiciary, the bar, and the public are better served when an established course of misconduct is appropriatelyredressed and an unfit incumbent is removed from the bench. [n.7]
Accordingly, the determined sanction of removal should
be accepted, without costs.
Matter of Duckman v SCJC No 66
Titone. J. (Dissenting):
By accepting without qualification the harsh sanction of removal for Judge Duckman's indiscretions, the majority has sent a message that the State's judicial disciplinary procedures are susceptible to manipulation by public officials and that Judges whose rulings displease those public officials may find themselves singled out for exceptional, and possibly ruinous, scrutiny. Because the outcome in this case strikes at the heart of the notion of judicial independence which is so critical to our tripartite system of government, I feel compelled to express my dissenting views.
The instant disciplinary proceeding did not begin in a vacuum, and its outcome cannot be assessed without reference to the political maelstrom that generated it. It is clear from the public record that petitioner was targeted for investigation and formal discipline because of the publicity he received in connection with a routine bail decision he made in a misdemeanor prosecution involving one Benito Oliver. Some three weeks after his release on bail, Oliver located his former girlfriend, Galina Komar, shooting her and then himself. The following day, the incident was reported by the New York City tabloids in sensational headlines which implied that petitioner was somehow to blame for the tragic incident. One tabloid blared a headlineindicating that petitioner had said "[e]ven I beat my wife" a remark that he never actually made.
The lurid newspaper coverage was followed only a few days later by a letter from the State Senate Majority Leader to the State Commission on Judicial Conduct demanding that petitioner's fitness be investigated immediately. At the same time, Governor Pataki initiated his own "investigation" of petitioner. These actions by two of the State's most powerful elected officials were part of a larger political climate in which Judges were increasingly being scapegoated. Beginning around the time of the Komar killing and continuing throughout the spring and fall of 1996, journalists specializing in sensational reportage and politicians anxious to capitalize on public fear combined to lay the blame for urban crime at the feet of "criminal coddling" Judges ( see generally, J.M. Goshko, Accusations of Coddling Criminals Aimed at Two Judges in New York, Wash Post, Mar 14, 1996, p A3; N.A. Olch, Soft on Crime? Not the New York Court of Appeals, NYLJ, May 6, 196, p 1; H.J. Reske, ABA Commission Defines Areas of Judicial Independence, ABA J, Dec. 1996, p 99; H.J. Reske, Pointed Resignation Judge Blasts Politicization of Judiciary, ABA J, Jul. 1996, p 40; W.N. Seymour, Jr., Defending the Judiciary An Open Letter to the Bar, 38 NYS Bar News, Mar./Apr. 1996, p 1; G. Spencer, Protection Order Abuse Elevated to Felony, NYLJ, Aug. 9, 1996, p 1).
As the onslaught from the media continued, theGovernor's office sent representatives to the Kings and Bronx County District Attorneys offices, apparently to obtain additional negative background material on Judge Duckman. These representatives were given access to one or more files containing transcripts of proceedings before Judge Duckman, which appear to have been ordered and preserved for some unspecified future use. Notably, some of these transcripts involving dismissed criminal charges were shown to the Governor's investigators without regard to the confidentiality rules that apply to sealed records ( see, CPL 160.50). Having collected a list of complaints from trial assistants about petitioner's handling of their cases and his mistreatment of individual prosecutors, the investigators compiled a nine page report that was ultimately forwarded to the Judicial Conduct Commission. [n.1]
On February 28, just two weeks after the Komar killing, the Governor made a highly publicized demand that the Judge who released the killer be suspended and that formal disciplinary proceedings against him be commenced. This demand was accompanied by an ultimatum, announced at a gubernatorial press conference, that the Commission must either remove petitioner from office within sixty days or the Governor would initiate impeachment proceedings before the State Senate ( see, NY Const.,art VI, § 23[b]).
On April 22nd, just a few days shy of the Governor's deadline, the Commission acted by announcing the filing of formal charges against petitioner. None of the charges were based on petitioner's bail decision in the Oliver case. Instead, the charges in question were cobbled together from a handful of incidents selectively drawn from tens of thousands of cases petitioner handled during his five year tenure on the criminal bench.
The majority's opinion details the evidence that led to the Commission's determination that petitioner should be removed, and there is no need to repeat the substance of that evidence here. Suffice it to say that, despite the fact that some 10,000 pages of transcripts were subpoenaed and scoured for petitioner's misdeeds, there were no clear "smoking guns"; there was only a list of petty offenses involving petitioner's "bullying" of prosecutors, his intemperate behavior and his improper dispositions of criminal charges in some 16 cases. The latter "misconduct" was evidently motivated by petitioner's view, expressed repeatedly on the record, that the particular prosecutions did not serve the interests of justice. Significantly, none of the 16 dismissed prosecutions in issue was deemed sufficiently important or meritorious to warrant an appeal, and none of the 19 incidents of intemperance were deemed sufficiently serious to warrant a disciplinary complaint.
What emerges from this sequence of events is a very disturbing picture. Given the timing of the investigation and the severity of the sanction imposed, the conclusion is inescapable that the Judicial Conduct Commission bowed to the Governor's political threats and allowed itself to be used to advance the agenda of the Judge baiters who were feeding off the media frenzy.
No one including petitioner disputes that some of the specific behavior revealed by the evidence before the Commission constitutes impropriety and may even be worthy of some sanction. The argument here is not that petitioner's performance has been beyond reproach, but rather that he has been subjected to an extraordinary degree of microscopic scrutiny under circumstances that cannot help but serve as an object lesson to other Judges faced with the possibility of making an unpopular decision. While the existence of intemperate conduct by other judicial officers does not justify any of petitioner's excesses, it is also true that few Judges who, like petitioner, have handled tens of thousands of cases and sometimes as many as 100 to 200 a day could withstand the kind of intense spotlight that has been aimed at petitioner's record.
The implication of the present disciplinary proceeding is that Judges whose rulings displease the political powers that be may be subjected to a modern day witch hunt in which their records are combed for indiscretions, their peccadillos strungtogether to make out a "substantial record" of misconduct and their judicial "sins" punished with the ultimate sanction of removal from office. Indeed, in this case, the inference that petitioner has been removed at least in part because of his interest in protecting individual defendants" rights is reinforced by the Commission's emphasis on his purportedly anti prosecution bias and his statements criticizing the District Attorneys" policies. It is clearly contrary to the goal of judicial independence to suggest that a Judge may be singled out for discipline because of his or her expressed views on questions affecting the criminal justice system. [n.2]
Our system of laws and the public's confidence in the judiciary rest in large measure on the notion that our Judges are free to rule on the issues before them without fear of retaliatory removal. Without that freedom, there is no assurance that the choices Judges make in situations often involving unpopular alternatives have the necessary level of integrity.
There are few among us who have the courage and fortitude to take judicial stands at the risk of public humiliation and loss of office. It is for that reason that our State Constitution mandates lengthy terms of office for Judges and permits removal of Judges only after impeachment by the Legislature or for grave cause after a fair adjudicative process administered by the State Commission on Judicial Conduct (NY Const, art VI, §§ 22,23; see, Matter of Cunningham, 57 NY2d 270, 275; Matter of Steinberg, 51 NY2d 74, 81).
The perception arising from this case that the Commission is itself susceptible to political influences cannot help but undermine the confidence of the State's Judges in these constitutional protections and chill the free exercise of their judicial discretion. A precedent has now been set in which politicians and local prosecutors have demanded the removal of a widely respected sitting Judge for what they perceived as "criminal coddling" and have succeeded in that demand. Now that the Commission has demonstrated its willingness to be hospitable to such machinations, it seems likely, indeed inevitable, that Judges will be intimidated and will frequently be tempted to err on the side of the prosecution in debatable situations rather than risking Judge Duckman's fate. Nothing could be more inimical to the health of our State's system for administering criminal justice.
The record here unquestionably reveals that JudgeDuckman was occasionally guilty of intemperate conduct and that he knowingly misused his authority to terminate 16 prosecutions in order to achieve what he believed to be the ends of justice. Accordingly, since these matters were brought to the attention of the disciplinary authorities, some form of sanction should now be imposed. It seems to me, however, that Judge Duckman's record of service as a whole does not indicate any unfitness for judicial office. To the contrary, the hearing testimony and the flood of letters that were made available to the Commission indicates that overall he has been an intelligent, hard working, knowledgeable and compassionate jurist. Furthermore, to the extent that he demonstrated intolerance or intemperance, he did not do so out of malevolent or venal motives; [n.3] rather, his actions were clearly motivated by compassion ( see, People v LaBelle, 79 NY2d 350). Finally, Judge Duckman has apologized for his excesses and has indicated that they will not occur again. Thus, there is no need to invoke the extreme sanction of removal; the lesser sanction of censure will suffice. Since the use of the removal power here not only deprives the public of a conscientious and hard working Judge but also signals an unhealthy tolerance on the part of this Court for the heavy handed tactics of would be "Judge bashers," I
dissent from the Court's acceptance of the Commission's imposed sanction.
In the Matter of Duckman
No. 66
BELLACOSA, J. (dissenting):
I, too, respectfully disagree in this separate dissenting opinion with the Per Curiam determination to remove this Judge from his judicial office. From my personal examination of this entire record, the evidence of sustainable misconduct does not rise to the extreme level of egregiousness, demanded by this Court's precedents, for that ultimate sanction to be imposed. Moreover, the precedential implications of this removal decision are daunting and disturbing (a) insofar as the future scope and operations of the Commission are concerned, and (b) for the future discharge of adjudicative responsibilities, especially by trial level judicial officers who have to maintain actual and perceptual independence from all outside influences.
This Court has consistently and appropriately set the bar of removal very high: it is "an extreme sanction [that]should be imposed only in the event of truly egregious circumstances" ( Matter of Cunningham, 57 NY2d 270, 275; compare, Matter of Roberts, 91 NY2d 93, with Matter of Skinner, 91 NY2d 142, 144; see also, Matter of Kiley, 74 NY2d 364, 369 370; Matter of Steinberg, 51 NY2d 74, 83). Our precedents ordain that "removal should not be ordered for conduct that amounts simply to poor judgment, or even extremely poor judgment" ( Matter of Cunningham, supra, 57 NY2d, at 275 [emphasis added]).
The heavily relied on set of specifications in the instant case boils down to the overarching charge that Judge Duckman improperly handled 16 criminal proceedings: 13 dismissals for facial legal insufficiency, one dismissal in the interests of justice, and two adjournments in contemplation of dismissal. The accusations are that the Judge knowingly and wrongly dismissed these cases, without notice or an opportunity for the prosecution to be heard, without allowing a chance to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor.
These extrapolated rulings were statutorily unauthorized and irregular devices; they constitute improper means to reach debatably correct ends. While they should not be countenanced, they do not equal disciplinary misconduct at the egregious level for removal from office. They absolutely do not represent a pattern of conduct in any realistic context and appraisal of the full record of this Judge's career. Rather,they are qualitatively and quantitatively exceptional, measured by a fair and proportional analysis of the full gamut and docket of any judge, serving, as this Judge did, in such high volume and high intensity assignments, locales and courts. Thus, these few, never appealed and disciplinarily resurrected remnants of cases are not so out of line as to justify removal of this Judge from his judicial office.
While I agree generally that this Court should resist "any numerical yardstick for determining unfitness" (per curiam opn, at 18), our precedents provide some measuring guideposts of the overall judgmental quality and quantity necessary to elevate misconduct to a level of gravity that is required to impose the final and lifetime sanction of removal ( compare, Matter of LaBelle, 79 NY2d 350 [rejecting removal where the Judge failed to set bail without legal justification in approximately 24 cases], with Matter of Sardino, 58 NY2d 286, 289 290 [upholding removal where the Judge (1) "consistently failed (in 62 cases) to inform the accused of the right to counsel and failed to conduct even a minimal inquiry to determine whether they were entitled to assigned counsel," (2) "regularly abused his authority with respect to setting bail," and (3) "often assumed an adversarial role at arraignments by questioning defendants"]; compare also, Matter of Skinner, 91 NY2d 142, supra [rejecting removal and imposing censure], with Matter of Roberts, 91 NY2d 93, supra [accepting removal]).
The record evidence in the instant case comes nowhere near the "distortion of the judicial function" that is reflected in Matter of Sardino ( supra). This is especially so when weighed and evaluated within the precedential and judgmental universe of the multitude of other cited cases. To be sure, each disciplinary case with its sanction assessment is unique and different. Yet, the instant case fits closest to Matter of LaBelle ( supra), where the Majority of this Court rejected the removal recommendation and imposed a serious, public censure. I consider of very high concern and weight, therefore, that the breakthrough precedent established by this case will seriously and widely expand the reasonably balanced guidance that the governing principles have ordained up to now that is. And let no one make any mistake as to the grave, plenary responsibility invested exclusively in this Court by the State Constitution: the Commission cannot remove a Judge; only this Court can, absent impeachment.
This case also presents an additionally disturbing and distinct precedential concern in this allocation of power i.e., that the Commission could infer that it has a new obligation and intrusive authorization to poke into the adjudicative work of judges, legitimatized by this Court's ultimate precedential acceptance of a determined sanction recommended by the Commission Majority, insofar as it rests onthese quintessentially decisional matters of dismissed cases ( compare, Matter of Greenfield, 76 NY2d 293).
In Greenfield, this Court rejected the Commission's sanction, even of censure, where the record disclosed "serious administrative failings in petitioner's handling of the cases in issue, but no persistent or deliberate neglect of his judicial duties rising to the level of misconduct" ( id., at 295). Although a Judge's failure to promptly dispose of pending matters is generally subject to administrative correction, the Commission pushed the envelope to urge "that at some point a Judge's failure to dispose of pending matters must be viewed as misconduct within its jurisdiction" ( id., at 297). This Court emphatically rejected the Commission's misguided incursion, concluding that it "would overlap the jurisdiction clearly granted to those administering the courts" and "would permit the Commission to intervene in the administrative process whenever it believes that a Judge has failed to dispose of pending matters within unspecified time limits in an unspecified number of cases and on a case by case basis" ( id.). The instant case represents a far deeper incursion, insofar as the 16 now disciplinarily challenged rulings are concerned, because the overlap and intervention drive into the very heart of the adjudicative administration and delivery of justice by a trial judge.
Furthermore, I am unable to accept that removal here may be justified under an exacerbation theory, related to aseries of "instances of petitioner's inappropriate behavior in his dealings with persons appearing before him, demonstrating impatience and intolerance, even at times ordering prosecutors who disagreed with him out of the courtroom" (per curiam opn, at 13). These unfit to serve characterizations are associated with and derived from a collection of misdeeds mixed with indecorous and indiscrete comments, admonitions, sarcasm and wisecracks. The utterances made in the rough and tumble world of the New York City arraignment and criminal courts are sharply contested, acontextual, selective and subjective. They also do not satisfy, on proportional record analysis, the substantive gravity needed for removal from judicial office ( compare, Matter of Agresta, 64 NY2d 327 [upholding censure]).
My reading of this record supports a contrary, or at least reasonably competing, point of view that the substance and credibility on many of the specifications of misconduct range from questionable to weak, and are subject to significant conflicting evidence favorable to the Judge's conduct and overall performance of his judicial duties. The record fairly and fully appraised, provides reasonable to strong mitigating and countervailing evidence, in substantive detail and in credibility, which contradicts the negative debasings of the Judge's character and the unfounded projection of his permanent unfitness for judicial office.
For example, various witnesses called by the Judge, and even by the Commission, portray the Judge as an unbiased and knowledgeable Judge. A good deal of criticism has been heaped on him for bias against some prosecutors whom he apparently found deficient in performance; indeed, none of them filed any contemporaneous complaints or appeals against him anywhere until he became publicly vilified. They did, however, keep negative material in personal files over the years that was retrieved and projectiled into his disciplinary proceeding.
Thus, I consider it fair to select some particular competing evidence that I find particularly relevant and cogent on the sanction weighing issue. Barry Kamins, a former prosecutor, Chair of the Grievance Committee for the Second and Eleventh Judicial Districts, past president of the Brooklyn Bar Association, and recent co chair of that Association's Judiciary Committee, testified that he had observed Judge Duckman in court several hundred times over the years and that the Judge "is more knowledgeable about criminal law, in my opinion, than any other judge in the Criminal Court in Kings County" (Transcript, vol XVI, at 3324). He also testified that he never heard the Judge "shout or yell," but at most "heard him speak in a frustrating tone, which is not novel" ( id., at 3331). He testified that the Judge "holds both sides accountable" and that there is no "double standard" ( id., at 3333).
Former Judge and Acting Justice Alain Bourgeois, now a practicing attorney, also testified:
"From what I observed, he dealt with [issues] effectively, and although he was demanding of respective counsel, although he obviously held them to a high standard, I believed that he held them to an appropriate standard and an equivalent standard. I think the frustration that one feels sitting in the Criminal Court is difficult to contain; I didn't see it spill over in any way in Judge Duckman's handling of cases that I observed." (Transcript, vol XVI, at 3354).
Juda Epstein, a former prosecutor who appeared before the Judge regularly, testified that the Judge "was absolutely down the line fair," that he did not treat the prosecution more harshly or differently from the way he treated the defense (Transcript, vol XVIII, at 3759, 3796). In fact, he testified that in one case, the defense attorney complained that the Judge was "too pro prosecutorial" ( id., at 3796).
Gerald Allen, former Kings County prosecutor and former Deputy Bureau Chief of the Criminal Courts Bureau, called by the Commission, testified on cross examination that the Judge was "definitely * * * the best trial judge in the building" (Transcript, vol VII, at 1388), and that he exhibited "almost exclusively good behavior" ( id., at 1389).
These necessarily selective appraisals illustratively and strongly negate the mischaracterization of this Judge by the Majority at the Commission on Judicial Conduct level (seven of eleven Commissioners). No matter how many favorable letters areassembled, however, they cannot make the case one way or the other on the appropriate sanction; no more, I respectfully submit, than the necessarily incomplete materials the Commission Majority and this Court's Per Curiam Opinion focus and rely on, and adopt. The whole record must be evaluated.
It is, nevertheless, quite significant to me that more than one hundred attorneys wrote to the Commission in early 1996 to protest the publicized ultimatums for the removal of Judge Duckman concerning a media intensified ruling that proved not to be misconduct. This varied array of personal letters and direct appraisals are part of the whole record. They depict an individual significantly different from and somewhat better than the "mean spirited" and "bullying" judge, sobriqueted by the Commission as some caricaturized martinet ( see, Commission Majority Opinion, at 7). The characterizations seem to me neither accurate, nor fair.
At least for some balance, it should be observed that the numerous evidentiary letters in the "Book of Letters" are neither from partisans, nor are they of merely character reference quality. They are from ordinary lawyers, court employees and others representing a wide cross section of people and professionals who worked in and around and observed Judge Duckman in the performance of his judicial duties over long and different periods of time. Surely, their real evidence is worthy of some consideration and greater weight than this materialgarnered from the Hearing Referee or the Commission itself which apparently was naught.
These letters also provide and constitute empirical and directly relevant evidence presented as part of the defense case before the Commission on the sanction weighing issue. The credibility and lack of outcome interest of these many letter writers (thus enjoying some reasonable and creditable professional objectivity) are very illuminating for those who would look to the whole picture with its varying hues and textures. They are appropriate to weigh on the sanction mitigation aspects of this particular case, as this Court is exclusively obligated to do.
In sum, removing this Judge on this record represents a disproportionate redress, when examined in the dispassionate reflection of the less than egregious level of cobbled misconduct. This is especially so in the balance wheel of these overwhelmingly favorable, on the firing line source appraisals of the Judge's adjudicative work and good character.
The genesis, breadth and nature of the exceedingly pervasive investigation of this Judge by the Commission staff are at least also contextually noteworthy. In my view, these features raise legitimate concerns and reflect an acutely unfair methodology with questionable motivation for the Commission's course of action. The diverse perceptions and evaluations, even among the Commission members, provide an eye opening window intounderstanding the skewed and distorted process that propelled itself ultimately into this divided Commission recommendation. Seven members voted to recommend the most severe sanction, and they were even divided as to some specifications; four of the eleven Commissioners voted for censure only for differing reasons.
The dissenters at the Commission tendered an array of particulars for this Court to consider in mitigation of the sanction recommendation. They summarized their reasons for public censure as the sufficient level of redress, for example, as follows: (1) none of the acts committed resulted in a deprivation of liberty; (2) none of the acts was motivated by self interest; (3) all of the improper dismissals involved misdemeanors; (4) on no occasion did prosecutors find Judge Duckman's knowingly erroneous dismissals of cases serious enough to warrant complaints to his judicial administrative superiors or even appeals by them as "aggrieved" litigant parties (though they instead chose to stockpile grievances in personal files for future retrieval to be used in collaboration with a drumbeat to remove a Judge for an unpopular decision); and (5) the instances of misconduct are few compared to the tens of thousands of cases Judge Duckman handled in his five year career.
My judgment coincides with that of the dissenting Commissioners: the ultimate sanction here is disproportionate to the nature, number and gravity of the proven and acknowledgedjudicial misdeeds, mis speaks and mishaps. Under the applicable preponderance of the evidence standard, the case for the removal penalty falls short of the extreme egregiousness necessary. Since this Court is the only and exclusive guardian of a neutral and independent adjudication of these matters, it should reject the recommended sanction. Up to now I have concentrated essentially on the individual justice aspects of this Court's responsibility to accord to Judge Duckman all his rights of fair procedure and full review since we are his only court of review.
Now I turn to the twin tower of this Court's role precedential responsibility. Removal here will have an inescapably adverse impact in that quintessential universe, as it affects the vital and vibrant independence of the judicial function and branch of government. The conduct of judges and the culture of the operation and decision making in trial courts will be necessarily and materially altered and affected by today's decision. Many of the effects will be hidden from view, buried in the hearts and psyches of judges as they think, work and worry their way through a myriad of dockets and rulings, peering or at least seeming to peer over their shoulders at severely scrutinizing critics, disappointed lawyers, disgruntled litigants and the second guessing Commission itself. Other consequences include emboldening critics towards even more deconstructive attacks on judges and their rulings at every turn, twitch and utterance. These combined visible and invisible consequencescannot help but threaten the independence and damage the integrity of the jewel of this State's judicial process actually and perceptually. Fortunately, the judiciary and judicial process are strong and will survive, and so I agree with the Per Curiam opinion's observation that this case and circumstance do not create a state of peril. Yet, this does not bode well for the deliberative administration of justice.
Lastly, to the extent made relevant on the sanction determination, this Judge acknowledged on the record the inappropriateness of many of his actions ( compare, Transcript at 33, 53, 59, 66 68, 80, 81, 86, 97 98, with per curiam opn, at 21). In fact, in my view, the overall tenor of the Judge's testimony and positions before the Hearing Officer, the Commission and this Court, was apologetic and contrite.
Moreover, this Court's guiding precepts do not demand that judges who are fighting for their professional lives and reputations must throw in the towel as part of their "defense" ( compare, Matter of Kiley, 74 NY2d 364, 371, supra [removal rejected and censure imposed] [adding this Court's wise caution against using "lack of candor" (something I would deem worse than asserted "lack of contrition") as an aggravating circumstance to pump up a more serious sanction]). Thus, judges should not have to "kneel penitently in the snows of Canossa" before the Commission; Judge Duckman is not Emperor Henry IV and the Commission is not Pope Gregory VII.
It should suffice that accused judges should tell the truth, be candid and acknowledge wrongdoing that they are truly guilty of and to the extent necessary and consistent with maintaining a defense against wrongful criticisms and charges. Indeed, even an appropriate measure of remorse and resolve to conform to acceptable judicial behavior and norms are prudent and useful. On the other hand, judges surely are not obligated to plead guilty, no matter what is thrown at them, nor are they expected to rely merely on the "mercy" of the Commission.
I vote for censure only, because I am unconvinced and unable to pronounce that this Judge is incorrigibly and irredeemably unfit to serve as a Judge ever again.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and Lorin M. Duckman is removed from his office of Judge of the Criminal Court of the City of New York, Kings County. Opinion Per Curiam. Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur. Judge Titone dissents and votes to reject the determined sanction in an opinion. Judge Bellacosa dissents and votes to reject the determined sanction in a separate dissenting opinion.
Decided July 7, 1998
Judge Lorin Duckman, a judge who got a bum rap
Several times a week for the past three years, the New York Post has pounded on the theme of Judge Lorin Duckman, who is guilty of murder, the Post claims, because in 1996 he let a dangerous criminal out of jail who proceeded to go home and murder his girlfriend, and then to kill himself.
New York Post for September 12, 1997: "GRIEVING MOM: DUCKMAN KILLED MY GIRL"
Because of constant pressure from the New York Post, Judge Duckman was brought up on disciplinary charges and finally was removed as a judge in 1997.
But are these the real facts? Is Judge Duckman really an accomplice to murder?
Here are facts which the Post rarely mentions:
The man, Benito Oliver, who was released only to kill his live-in girlfriend, Galina Komar, did not kill her right away as has been implied. They lived together for three weeks after his release without incident. The woman was his girlfriend. They had lived together for years. Nobody knew him better than she did. She chose to live with him.
Judge Duckman lowered his bail so as to release him at a time when he had already been in jail for five months. During these five months, the woman in question had continued to live in his apartment. He paid the rent. The DA's office tried to convince her to move out and into a battered woman's shelter or back with her mother or elsewhere, but she refused to move. She insisted on continuing to live in his apartment.
The purpose of bail is to insure that the accused appears in court when required to do so. He had always appeared in court when required.
The woman refused to testify against the man. There was no evidence to hold him.
In short, Judge Lorin Duckman followed the law when releasing the man on bail. It is unfortunate that the man, once released, later killed his girlfriend and then himself. However, as a criminal court judge, Judge Duckman heard more than one hundred cases every day. These things happen. The accused would have been released eventually. There was nothing Judge Duckman could ultimately have done to prevent this murder.
The fact that the New York Post could hound a judge out of office merely because the judge did what the law required him to do, has implications for society. When a woman makes an accusation against her lover or boyfriend, experience tells us that these accusations are often not true. Yet, judges become afraid to release a man on bail, regardless of how wrongfully accused he may be, for fear of being attacked by publications like the New York Post, which is owned by British scandal-monger Rupert Murdoch. No judge ever lost his job for wrongfully convicting an innocent man, but judges often are accused in the press of being "soft on crime". Stories like this sell newspapers.
This leads to cases such as the Oliver Jovanovic case, where the judge would not allow the jury to see evidence pointing to the innocence of the accused. It leads to thousands of men serving long prison terms, who are not remotely guilty of anything.
Sam Sloan
The New York Times: "The Case for Duckman as a Scapegoat"
IN THE MATTER OF HON. LORIN M. DUCKMAN, A JUDGE OF THE CRIMINAL COURT OF THE CITY OF NEW YORK, KINGS COUNTY, PETITIONER, FOR REVIEW OF A DETERMINATION OF STATE COMMISSION ON JUDICIAL CONDUCT, RESPONDENT.
92 N.Y.2d 141, 699 N.E.2d 872, 677 N.Y.S.2d 248 (1998).
July 7, 1998
SCJC No. 66
[98 NY Int. 0096]
Decided July 7, 1998
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Ronald G. Russo, for petitioner.
Gerald Stern, for respondent.
New York Criminal Bar Association; New York State
Association of Criminal Defense Lawyers and Brooklyn Bar
Association, amici curiae.
PER CURIAM:
The State Commission on Judicial Conduct has determined that petitioner, since April 1991 a Judge of the Criminal Court of the City of New York (Bronx County, 1991 1994; Kings County, 1994 1996), engaged in various acts of misconduct demonstrating apattern of injudicious behavior that renders him unfit to continue in office. Given petitioner's acknowledgment before us of many of the alleged acts of wrongdoing, the central issue on his appeal to this Court is one of appropriate sanction: should he be removed from office or censured? Like the Commission, we conclude that removal is the appropriate sanction.
I.
In a Formal Written Complaint dated June 5, 1996, the Commission charged that petitioner had willfully disregarded the law, displayed intemperate demeanor, abused the power of his office and exhibited bias against the prosecution. With 363 specifications, the Complaint made two formal charges. Charge I asserted that between October 1991 and February 1996 petitioner
"in the exercise of his judicial duties, willfully disregarded provisions of law that resulted in the improper dismissal of criminal charges, delivered ad hominem criticisms and injudicious lectures to assistant district attorneys that unfairly attributed to them improper and harsh values and judgments in their role as prosecutors and made intemperate, derisive and otherwise inappropriate comments to assistant district attorneys. * * * By reason of the foregoing, [petitioner] abused the power of his office, displayed evident bias against the prosecution, and acted in a manner inconsistent with and prejudicial to the fair and proper administration of justice."
Charge II alleged that between May 1992 and December 1995, petitioner engaged in certain specific acts of "intemperate and injudicious conduct." Petitioner denied all wrongdoing.
On November 6, 1996, Matthew J. Jasen, appointed by theCommission as Referee, commenced hearings that continued over a period of 20 days. The evidence included the testimony of 67 witnesses (29 for petitioner, 38 for the Commission), consuming more than 4,000 transcript pages, and 200 exhibits. In addition, the record before us includes a "Book of Letters," 112 letters largely from practitioners who appeared before petitioner both as prosecutors and as defense counsel attesting to his personal and professional qualities.
On May 28, 1997, the Referee filed his Report, a 157 page document summarizing in detail the evidence with respect to each alleged act of misconduct, annotated to the record (for the most part transcripts of court proceedings conducted by petitioner, and petitioner's own testimony).
In his "Findings of Fact" the Referee found that petitioner had committed all but one of the acts of misconduct charged (he sustained all but five specifications; two were withdrawn by the Commission). As "Conclusions of Law" the Referee determined that petitioner had violated the State Constitution, as well as specified provisions of the Code and Rules of Judicial Conduct. He further rejected the notion that it is common practice for Judges of the Criminal Court to engage in the misconduct found, and even if it were, each Judge individually "must abide by the ethical standards required of judges in the unified court system, and neither calendar congestion nor a judge's frustration excuses or mitigates thepattern of misconduct reflected in these findings of fact and conclusions of law." Finally, the Referee concluded that petitioner's "expressed belief in the propriety of his undisputed conduct, as set forth in the findings as to Charge [II], demonstrates a failure to recognize that such conduct was improper, and a failure to appreciate the proper roles of a Judge and a prosecutor in the criminal justice system."
Commission counsel then moved to confirm the Report and for a determination that petitioner be removed from office. Petitioner opposed the motion.
Petitioner waived confidentiality and on September 11, 1997, the Commission heard oral argument in a public session, at which both petitioner and his counsel appeared. Thereafter, the Commission considered the record of the proceeding and made findings of fact, concluding that petitioner violated several provisions of Canons 1, 2A and 3 of the Code of Judicial Conduct as well as the Rules Governing Judicial Conduct. Charges I and II were sustained insofar as they were consistent with the Commission's findings (several additional specifications of the Commission's complaint were not sustained), petitioner's misconduct was deemed established, and the Commission held that petitioner should be removed from office. A 50 page Appendix to the Commission's Determination describes each of the specifications of misconduct found by the Commission.
All 11 members agreed that petitioner had engaged inserious misconduct by his knowing disregard of the law and by his intemperate, disparaging name calling of young prosecutors and insensitive remarks. The Commission, however, issued five separate opinions, and it split seven to four on the issue of sanction. While the seven members agreed unanimously on the wrongdoing warranting removal, three would have gone further in their findings two members underscoring petitioner's "consistent and outrageous disregard of the law," and a third underscoring "the gravity of the misconduct found with respect to Charge II" and the fact that petitioner "repeatedly made inappropriate comments concerning gender and race which are antithetical to the role of a judge." Of the four Commission members who voted for censure rather than removal, one expressed the view that "a jurist who has sat on over 50,000 cases should not be removed for misconduct in only 19 cases." The other three, while agreeing that petitioner had committed serious judicial misconduct, asserted that, given all of the facts and circumstances, the appropriate sanction was censure.
After careful review of the evidence, we conclude that the Commission's determination sustaining the charges is supported by a preponderance of the evidence and that the sanction of removal is warranted (NY Const, art VI, § 22; Judiciary Law § 44).
II.
In our view, the credible evidence indicatingwrongdoing both in connection with case dispositions and in court proceedings generally was sufficient to support the Commission's findings of misconduct. Given the voluminous record, as well as the extensive factual digests already set forth both in the Commission's Determination and in the Referee's Report, [n.1] we will not particularize all of the individual incidents but instead will more broadly indicate the categories of misconduct into which they fall.
Misconduct in Connection with Case Dispositions: Largely consisting of transcripts of court proceedings before petitioner, the evidence establishes that petitioner willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal ("ACDs"). Cases were dismissed without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor. What is significant for present purposes is both that petitioner dismissed these cases in knowing disregard of requirements of the law ( see, e.g., CPL 140.45, 170.30, 170.35,170.40, 170.45, 170.55, 210.45), and the abusive, intemperate behavior he manifested in dismissing those cases, at times not permitting the attorney to make a record of an objection either to the disposition or in response to the accusations.
In the overwhelming number of these cases it is clear that petitioner dismissed accusatory instruments for facial insufficiency because the prosecutor refused to agree to petitioner's requests for an ACD or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted. Petitioner explained to the Commission that "there were times where [he] did things in the interests of justice, using the guise of facial insufficiency" to dispose of a case when he "thought it was right to do it." In his words:
"Sometimes in an effort to do justice, I used the vehicle of dismissals for facial insufficiency without making defense attorneys put their motions in writing, without giving the people an opportunity to amend or redraft, and sometimes without giving the people an opportunity to be heard fully." Illustratively, in one case where defendant was charged with menacing in the third degree for pointing what appeared to be a gun at children, at arraignment petitioner told the prosecutor "it's an ACD or it's dismissed." Petitioner refused to allow the prosecutor to present his argument as to why the accusatory instrument was in fact facially sufficient, denied his request that the dismissal motion be in writing and, after warning him not to "just come up with some nonsense and tell meyou want the opportunity to redraft," petitioner denied the prosecutor's request to rewrite the accusatory instrument. Petitioner also cautioned the prosecutor that he should "ACD and maintain the peace." When the prosecutor refused, petitioner dismissed the charge on concededly improper grounds. The prosecutor's reply, "Over the People's objection," evoked the following diatribe:
"THE COURT: Please don't say that. It's not over your objection. My objection is that you can't stand here and act like a lawyer. How are you going to proceed in this case? It's not over your objection. You are supposed to come into court don't smile, put that down and look at me I said to look at me, Mr. Petrillo. I am going to tell you what offends me. I tell you fifty times, it's not over your objection, you are given an opportunity to be heard. When you can't make out the charges, the charges are dismissed. These are people's lives. Based on that nonsense, you had a person go to jail. What am I supposed to say to you, about the lack of respect that I have for you prosecuting a person, when you don't have a case? You don't have an objection. You are just mouthing some words that somebody told you, for no reason, and insulting me, and I am insulted and I don't want to hear it again.
"MR. PETRILLO: I did not intend to insult
"THE COURT: Did I ask you to talk; did I? You told me it was over your objection, and I am telling you what my objection is and I speak last. He does it all the time, and you do it all the time and lawyers don't do that. They stand up here and do what they are supposed to do. You can't come up here, with a facially insufficient complaint, and say 'we are moving to dismiss or we are ACD'ing it.' It's too bad we don't have more who do. The case is over. I am not listening to you. Move away. Next case. Don't do it again. If you smile, you are going to find out what power I really have. Do you understand that? Do you understand that; yes or no?
"MR. PETRILLO: Yes, I do."
A transcript from another case reflects a similar colloquy between petitioner and two prosecutors:
"THE COURT: You want to ACD? Dismiss or ACD. That is your choice.
"MR. SACK: Judge I am not prepared to do either right now.
"THE COURT: You have a reason for that? Is there something I said that was wrong?
"MR. SACK: Judge, I am reviewing the write up.
"THE COURT: I think I gave you five minutes to look at it and Ms. Rice, you have a problem? Stand up. I didn't ask you to talk.
"MS. RICE: Do I have a problem, your Honor?
"THE COURT: I didn't ask you to talk. Then leave the courtroom and solve your problem.
"MS. RICE: You want me to leave now?
"THE COURT: Don't you shirk and give me weird looks, okay.
"MS. RICE: I apologize, your Honor, if I gave
"THE COURT: Here we go again. You want to dismiss or ACD the cases, Mr. Sack?
"MR. SACK: Judge, I see that a count is not charged. I therefore, with the Court's permission, move to add that to the Complaint at this time
"THE COURT: Your application is denied. Youcharged him with this. ACD or dismiss. If you want to re arrest him or go, go to their houses and charge them with the administrative code violation. Are you ready to do it?
"MR. SACK: With all due respect, your Honor, the factual allegations in the complaint do make out
"THE COURT: Didn't I just dismiss your application? You want me to you want to say it five more times? When I ask you and I rule that is it. Go on to the next point.
"MR. SACK: My next point, Judge, is to ask for bail.
"THE COURT: Charges dismissed. Good day."
Apart from knowingly disregarding procedural requirements of the law to reach his desired result, petitioner on his own dismissed a drunk driving prosecution, over the prosecutor's objection, where he thought a conviction would be unlikely, [n.2] and assumed facts where his own life experience suggested police misconduct. Court transcripts, for example, show petitioner in one case surmising that "defendant had taken a beating for causing two police officers to chase him for threeblocks." There having been no prior mention of a beating in the transcript, during the hearing before the Referee petitioner explained that his belief was based on the fact that defendant "looked rather disheveled."
Again, in another proceeding, petitioner speculated on the record: "Somebody in a car with a gun, police officer goes to the car and they don't move the cops then try to do something to get them out * * * what they did to get them out of the car, whether they were abused, grabbed, hit, berated * * *." And in yet another, where defendant was charged with obstructing governmental administration and disorderly conduct based on allegations that he had interfered with his brother's arrest, court transcripts indicate that petitioner insisted that the prosecutor agree to an ACD. When the prosecutor refused, petitioner asked defense counsel for a motion and dismissed the charges. In response to questioning before the Commission, petitioner admitted that he did not give proper notice before dismissing the charges, but it was his opinion that defendant only pushed the officer to protect his brother from injury. He knew his view was the correct one because he had "talk[ed] to a lot of people" and had heard from defense counsel "what was going on here." Petitioner explained: "I read things into cases and I'm not wrong about these things."
In yet another matter, the accusatory instrument charged defendant with assault in the third degree and harassmentbased on allegations that defendant "struck [the victim] with closed fist in the face, causing swelling and bruising to the face and to suffer substantial pain and to be alarmed." Petitioner argued that the prosecutor did not allege facts to make out an assault and described the alleged punch in the face as a "push": a "push is not an assault * * * It's harassment." After defendant pleaded guilty to harassment, petitioner asked defense counsel whether he wanted to move to dismiss the assault charge. Although the prosecutor argued that the victim "received swelling and bruising to the face" and suffered pain, petitioner rejected the prosecutor's argument as a "conclusion," and dismissed the misdemeanor assault for facial insufficiency.
In addition, petitioner knowingly disregarded statutory requirements in dismissing charges in the interest of justice, and twice imposed an ACD without the consent of prosecutors, berating them in the process. For example, the dismissal in the interest of justice involved a charge of theft of services for allegedly entering the New York City subway, in the Bronx, without paying a fare; defendant at the time had a similar charge pending against him in New York County, and four prior Class A misdemeanor convictions. When the prosecutor refused petitioner's request for a plea to disorderly conduct, with time served, petitioner lectured her about the need for jobs and health care, said she was not "doing justice" and was being "unreasonable" and dismissed the case, in knowing disregard ofthe requirements of a written motion for such relief and reasons for such dismissal set forth on the record ( see, CPL 210.45, 170.40, 170.45).
Misconduct in Court Proceedings Generally: The 16 cited instances of knowing disregard of the law are not the only credible evidence supporting the charges. Well beyond those proceedings, the Commission documented instances of petitioner's inappropriate behavior in his dealings with persons appearing before him, demonstrating impatience and intolerance, even at times ordering prosecutors who disagreed with him out of the courtroom.
Petitioner, for example, subjected prosecutors to harsh, personal criticisms when they would not accept his view as to the "worth" of a case. Petitioner admitted to the Commission that he chastised prosecutors for their bail recommendations because he did not want to be criticized for setting low bail. As one prosecutor reported in testimony before the Referee, after his bail recommendation petitioner accused him of "making him look bad in front of the audience." Petitioner asked another prosecutor if her bail recommendations were the "result of [her] middle class background"; another was criticized as "too lofty" to appear in his court; another as having "no guts." Petitioner's lectures about the unfair actions of "your society" or "your government" at times elicited laughter or applause in the courtroom.
Petitioner conceded that on several occasions he made derisive remarks in open court referring to prosecutors' allegiance to their office policies, calling them "good little soldiers," "good little soldier boys," "mannequins" and "puppets," or commenting that they were "earning another stripe on the arm" or "notch on the belt" every time they put someone in jail. In open court, he called them nicknames, such as "Princess" or "Princess Nancy," "Mr. Nuisance," and "Marshal Dillon" or "the Marshal." As lawyers testified, they felt belittled, degraded and demeaned by petitioner's open court sarcasm and ridicule. [n.3]
In the case of one prosecutor who is visually impaired, petitioner heatedly accused him of having broken his lectern by leaning on it. Petitioner, who was admittedly "distraught," "upset," "shocked" and "dismayed" by the damage to the lectern, told the prosecutor that he would "teach" him "how to properly stand up in court." Petitioner concedes that his law clerk "calmed [him] down" by assuring him that the lectern could befixed. A year later, when petitioner ran into the prosecutor after business hours at a restaurant bar near the courthouse, he said in a manner that was "not kidding" or "jovial" "he's the one who broke my lectern."
Petitioner told one female prosecutor that she was "too sexy" to wear flat shoes and that she had "nice legs" (petitioner denied the first comment but acknowledged the second); he admittedly told another that she looked better in shorter skirts. In a case involving two African American women, court transcripts reveal that petitioner, attempting to explain to a prosecutor why his disposition of the case an ACD was appropriate, stated: "At the risk of sounding racist and sexist, [the case] is really just two women, and you know sometimes certain things are just cultural." While petitioner strongly denies any racist or sexist bias, he admits making "isolated statements" which he characterizes as "aberrational in character," reflecting a familiarity not appropriate to his position. [n.4]
Incidents such as these, plainly inappropriate behavior for any Judge, are multiplied throughout the evidence and persuade us that the charges have been sustained.
III.
Having concluded from the proven facts that petitionerwillfully disregarded the law, abused the power of his office and engaged in injudicious behavior, we reach the crux of the present appeal: whether removal or public censure is appropriate ( see, NY Const, art VI, § 22[d]). We agree with the Commission that petitioner should be removed.
"[T]he purpose of judicial disciplinary proceedings is 'not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents'" ( Matter of Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [lll]). The actual levels of discipline to be imposed by the Court for judicial misconduct are, in the end, "institutional and collective judgment calls" ( Matter of Roberts, 91 NY2d 93, 97). They rest on our assessment of the individual facts of each case, as measured against the Code and Rules of Judicial Conduct and the prior precedents of this Court.
Not surprisingly, in the intensely fact specific inquiry before us the parties differ in their view of the more analogous precedent. Petitioner urges us to look to Matter of LaBelle (79 NY2d 350), where the Court concluded that the Commission had overstated both the number and the nature of petitioner's transgressions regarding commitments without bail and then rejected the determined sanction of removal in favor of censure. The Commission, in contrast, considers more pertinent Matter of Sardino v State Commn on Judicial Conduct (58 NY2d 286, 292), where the Court upheld a determination that the individualunder review had "'so distorted his role as a judge as to render him unfit to remain in judicial office'."
While finding no four square precedent each judicial misconduct appeal truly stands on its own facts we note that several of petitioner's arguments are analogous to arguments made by the Judge, and ultimately rejected by this Court, in Sardino ( see also, Matter of Reeves, 63 NY2d at 110 111, supra). We underscore, however, that this case is neither Sardino nor LaBelle.
Like petitioner here, Judge Sardino argued that he in fact felt no bias, nor was he motivated by animosity or self interest. As this Court observed, however, the perception of impartiality is as important as actual impartiality: Judges must conduct themselves "in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property" ( Matter of Sardino v State Commn on Judicial Conduct, 58 NY2d at 290 291, supra; see also, Code of Judicial Conduct, Canon 2A; 22 NYCRR § 100.2 [a "judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities"]; 22 NYCRR § 100.2(A) [a "judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"]).
Similarly, petitioner in Sardino argued unsuccessfullythat the number of abuses 62 over a two year period should not be viewed in isolation from his seven year career on the bench. As the Court noted, the number of abuses was not insignificant and, if viewed in the context of Sardino's entire career, would at best "establish that his behavior was erratic, which itself is inconsistent with a Judge's role" (58 NY2d at 291, supra). Here, too, petitioner urges that we credit his otherwise unblemished performance in a high stress, high volume court. The Court, however, has resisted any numerical yardstick for determining unfitness ( see, Matter of Hamel, 88 NY2d 317; Matter of Esworthy, 77 NY2d 280; Matter of VonderHeide, 72 NY2d 658; Matter of Sims, 61 NY2d 349). Rather, it must be the nature of the proven wrongdoing as well as the numbers that determine the appropriate sanction.
Moreover, in Sardino, as we do here, the Court questioned the veracity of the argument that many other Judges engaged in similar misconduct and concluded that, in any event, such evidence would be irrelevant. "Each Judge is personally obligated to act in accordance with the law and the standards of judicial conduct. If a Judge disregards or fails to meet these obligations the fact that others may be similarly derelict can provide no defense" ( Matter of Sardino v State Commn on Judicial Conduct, 58 NY2d at 291, supra; see also, Code of Judicial Conduct, Canon 1; Canon 3A[1]; 22 NYCRR § 100.1 [a "judge should participate in establishing, maintaining and enforcing highstandards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved"]; 22 NYCRR § 100.3[B][1]). Nor are Judges, in the interest of alleviating regrettable court congestion or indeed, even in the interest of empathy for defendants free to ignore the law in order to weed out cases they personally feel are unworthy of prosecution or clogging the system.
Petitioner's contention that his harsh treatment of young prosecutors was simply a consequence of his efforts to educate them to be more just is similarly unavailing. As the Commission noted: "[t]eaching need not involve angry screaming and humiliating invective and is not effective when the lesson is that a judge may abandon the law and abuse judicial authority."
Of significant concern as well and particularly relevant to the question of appropriate sanction is petitioner's refusal, throughout the Commission's initial investigation and the proceeding before the Referee, to acknowledge the impropriety of his behavior in wrongfully dismissing cases ( see, Matter of Aldrich v State Commn on Judicial Conduct, 58 NY2d 279, 283; Matter of Sims, 61 NY2d 349, 356; Matter of Shilling, 51 NY2d 397). As petitioner made clear in his testimony, he believes dispositions made in contravention of CPL requirements are permissible if they serve his definition of justice or conserve court resources by removing unworthy cases from an overburdened calendar. Testifying before the Referee, petitioner explained:"I think about what cases should be in this system and which cases shouldn't be in the system, and I think judges get to make that decision, and * * * if somebody comes and brings it to your attention and complains or asks you to do something, you can do something about it."
When petitioner was questioned before the Commission and the Referee about his handling of a number of cases, he was reluctant to acknowledge that the CPL required him to allow prosecutors to amend facially insufficient accusatory instruments. Even more troubling, however, are the numerous instances when petitioner testified that he had not abided by the CPL's amendment and notice requirements in disposing of a case, but still maintained that he had not been wrong in doing so. For example, petitioner explained before the Referee that although he "may have been wrong in reaching the decision [to dismiss in People v Shaw]," he believed that he "still did the right thing * * *." Similarly, when petitioner was questioned during the hearing about People v Zhao a case which he later acknowledged he "should not have dismissed" petitioner refused to admit that he had not acted in accordance with the law in disposing of the matter. Instead, petitioner insisted that his "legal ruling was correct." In People v Samuels, although he admitted to dismissing the charges "for the wrong reason," petitioner again refused to acknowledge before the Referee that he had not handledthe matter in accordance with the law. [n.5]
Additionally, with regard to several instances of clearly intemperate behavior, petitioner refused to admit that his comments were inappropriate. For example, petitioner testified during the hearing that he does not consider his asking a prosecutor whether he got his law license "on the back of an orange juice carton" to have been insulting. Moreover, despite considerable evidence to the contrary, petitioner maintained that his courtroom "was always run with courtesy."
In making the difficult choice between censure returning petitioner to the bench and removal, we find these examples particularly pertinent when combined with the numerous instances when Bureau Chiefs or Chief Assistant District Attorneys of Bronx and Kings Counties spoke with petitioner about his loss of temper and demeaning treatment of prosecutors whoappeared before him. Petitioner sometimes acknowledged the inappropriateness of what he had done and said he would try to calm down, yet the misconduct continued. This evidence not mentioned by the Commission's dissenters suggests that the confirmed findings of improper conduct are not isolated, acontextual, subjective instances, and it supports the inference that petitioner lacks the insight and self control to make fundamental changes in his attitude or judicial temperament. [n.6]
The foregoing leads us to conclude that the Commission has not, as in LaBelle, overstated the seriousness of petitioner's wrongdoing. Rather, the substantial record of petitioner's intentional disregard of the requirements of the law in order to achieve a personal sense of justice in particular cases before him, coupled with the substantial record of improper courtroom conduct and unresponsiveness to concerns flagged for him, persuade us that removal is the appropriate sanction.
Finally, we note several weighty concerns voiced by petitioner, by the dissenters and by amici relating to the origin of the Commission's investigation. The investigation was triggered not by appeals or complaints of wronged litigants or lawyers, but by a firestorm of public criticism generated by aseparate tragedy, as to which, in the end, petitioner's rulings were found to be a proper exercise of judicial discretion, not a basis for discipline. As petitioner points out, but for that tragedy as to which he has been fully exonerated likely no charges would have been lodged against him. There is, moreover, the deeply troubling suggestion not established on this record that prosecutors kept a "dossier" on petitioner, microscopically tracking him.
These concerns, which we share, center on a threat to the independence of the judiciary, a cornerstone of our democracy, posed by unwarranted criticism or the targeting of Judges. Judges must remain free to render unpopular decisions that they believe are required by law. Valid and vital though these concerns surely are, the difficult issue that confronts us in this matter is how to sanction the serious misconduct now fully documented before us that the firestorm has exposed. Plainly, wrongdoing in connection with initiating an investigation could not insulate an unfit judge; any such wrongdoing must be otherwise redressed. We are satisfied that in this particular case removal, rather than censure, does not imperil the independence of the judiciary. Indeed, on the merits of this case, the judiciary, the bar, and the public are better served when an established course of misconduct is appropriatelyredressed and an unfit incumbent is removed from the bench. [n.7]
Accordingly, the determined sanction of removal should
be accepted, without costs.
Matter of Duckman v SCJC No 66
Titone. J. (Dissenting):
By accepting without qualification the harsh sanction of removal for Judge Duckman's indiscretions, the majority has sent a message that the State's judicial disciplinary procedures are susceptible to manipulation by public officials and that Judges whose rulings displease those public officials may find themselves singled out for exceptional, and possibly ruinous, scrutiny. Because the outcome in this case strikes at the heart of the notion of judicial independence which is so critical to our tripartite system of government, I feel compelled to express my dissenting views.
The instant disciplinary proceeding did not begin in a vacuum, and its outcome cannot be assessed without reference to the political maelstrom that generated it. It is clear from the public record that petitioner was targeted for investigation and formal discipline because of the publicity he received in connection with a routine bail decision he made in a misdemeanor prosecution involving one Benito Oliver. Some three weeks after his release on bail, Oliver located his former girlfriend, Galina Komar, shooting her and then himself. The following day, the incident was reported by the New York City tabloids in sensational headlines which implied that petitioner was somehow to blame for the tragic incident. One tabloid blared a headlineindicating that petitioner had said "[e]ven I beat my wife" a remark that he never actually made.
The lurid newspaper coverage was followed only a few days later by a letter from the State Senate Majority Leader to the State Commission on Judicial Conduct demanding that petitioner's fitness be investigated immediately. At the same time, Governor Pataki initiated his own "investigation" of petitioner. These actions by two of the State's most powerful elected officials were part of a larger political climate in which Judges were increasingly being scapegoated. Beginning around the time of the Komar killing and continuing throughout the spring and fall of 1996, journalists specializing in sensational reportage and politicians anxious to capitalize on public fear combined to lay the blame for urban crime at the feet of "criminal coddling" Judges ( see generally, J.M. Goshko, Accusations of Coddling Criminals Aimed at Two Judges in New York, Wash Post, Mar 14, 1996, p A3; N.A. Olch, Soft on Crime? Not the New York Court of Appeals, NYLJ, May 6, 196, p 1; H.J. Reske, ABA Commission Defines Areas of Judicial Independence, ABA J, Dec. 1996, p 99; H.J. Reske, Pointed Resignation Judge Blasts Politicization of Judiciary, ABA J, Jul. 1996, p 40; W.N. Seymour, Jr., Defending the Judiciary An Open Letter to the Bar, 38 NYS Bar News, Mar./Apr. 1996, p 1; G. Spencer, Protection Order Abuse Elevated to Felony, NYLJ, Aug. 9, 1996, p 1).
As the onslaught from the media continued, theGovernor's office sent representatives to the Kings and Bronx County District Attorneys offices, apparently to obtain additional negative background material on Judge Duckman. These representatives were given access to one or more files containing transcripts of proceedings before Judge Duckman, which appear to have been ordered and preserved for some unspecified future use. Notably, some of these transcripts involving dismissed criminal charges were shown to the Governor's investigators without regard to the confidentiality rules that apply to sealed records ( see, CPL 160.50). Having collected a list of complaints from trial assistants about petitioner's handling of their cases and his mistreatment of individual prosecutors, the investigators compiled a nine page report that was ultimately forwarded to the Judicial Conduct Commission. [n.1]
On February 28, just two weeks after the Komar killing, the Governor made a highly publicized demand that the Judge who released the killer be suspended and that formal disciplinary proceedings against him be commenced. This demand was accompanied by an ultimatum, announced at a gubernatorial press conference, that the Commission must either remove petitioner from office within sixty days or the Governor would initiate impeachment proceedings before the State Senate ( see, NY Const.,art VI, § 23[b]).
On April 22nd, just a few days shy of the Governor's deadline, the Commission acted by announcing the filing of formal charges against petitioner. None of the charges were based on petitioner's bail decision in the Oliver case. Instead, the charges in question were cobbled together from a handful of incidents selectively drawn from tens of thousands of cases petitioner handled during his five year tenure on the criminal bench.
The majority's opinion details the evidence that led to the Commission's determination that petitioner should be removed, and there is no need to repeat the substance of that evidence here. Suffice it to say that, despite the fact that some 10,000 pages of transcripts were subpoenaed and scoured for petitioner's misdeeds, there were no clear "smoking guns"; there was only a list of petty offenses involving petitioner's "bullying" of prosecutors, his intemperate behavior and his improper dispositions of criminal charges in some 16 cases. The latter "misconduct" was evidently motivated by petitioner's view, expressed repeatedly on the record, that the particular prosecutions did not serve the interests of justice. Significantly, none of the 16 dismissed prosecutions in issue was deemed sufficiently important or meritorious to warrant an appeal, and none of the 19 incidents of intemperance were deemed sufficiently serious to warrant a disciplinary complaint.
What emerges from this sequence of events is a very disturbing picture. Given the timing of the investigation and the severity of the sanction imposed, the conclusion is inescapable that the Judicial Conduct Commission bowed to the Governor's political threats and allowed itself to be used to advance the agenda of the Judge baiters who were feeding off the media frenzy.
No one including petitioner disputes that some of the specific behavior revealed by the evidence before the Commission constitutes impropriety and may even be worthy of some sanction. The argument here is not that petitioner's performance has been beyond reproach, but rather that he has been subjected to an extraordinary degree of microscopic scrutiny under circumstances that cannot help but serve as an object lesson to other Judges faced with the possibility of making an unpopular decision. While the existence of intemperate conduct by other judicial officers does not justify any of petitioner's excesses, it is also true that few Judges who, like petitioner, have handled tens of thousands of cases and sometimes as many as 100 to 200 a day could withstand the kind of intense spotlight that has been aimed at petitioner's record.
The implication of the present disciplinary proceeding is that Judges whose rulings displease the political powers that be may be subjected to a modern day witch hunt in which their records are combed for indiscretions, their peccadillos strungtogether to make out a "substantial record" of misconduct and their judicial "sins" punished with the ultimate sanction of removal from office. Indeed, in this case, the inference that petitioner has been removed at least in part because of his interest in protecting individual defendants" rights is reinforced by the Commission's emphasis on his purportedly anti prosecution bias and his statements criticizing the District Attorneys" policies. It is clearly contrary to the goal of judicial independence to suggest that a Judge may be singled out for discipline because of his or her expressed views on questions affecting the criminal justice system. [n.2]
Our system of laws and the public's confidence in the judiciary rest in large measure on the notion that our Judges are free to rule on the issues before them without fear of retaliatory removal. Without that freedom, there is no assurance that the choices Judges make in situations often involving unpopular alternatives have the necessary level of integrity.
There are few among us who have the courage and fortitude to take judicial stands at the risk of public humiliation and loss of office. It is for that reason that our State Constitution mandates lengthy terms of office for Judges and permits removal of Judges only after impeachment by the Legislature or for grave cause after a fair adjudicative process administered by the State Commission on Judicial Conduct (NY Const, art VI, §§ 22,23; see, Matter of Cunningham, 57 NY2d 270, 275; Matter of Steinberg, 51 NY2d 74, 81).
The perception arising from this case that the Commission is itself susceptible to political influences cannot help but undermine the confidence of the State's Judges in these constitutional protections and chill the free exercise of their judicial discretion. A precedent has now been set in which politicians and local prosecutors have demanded the removal of a widely respected sitting Judge for what they perceived as "criminal coddling" and have succeeded in that demand. Now that the Commission has demonstrated its willingness to be hospitable to such machinations, it seems likely, indeed inevitable, that Judges will be intimidated and will frequently be tempted to err on the side of the prosecution in debatable situations rather than risking Judge Duckman's fate. Nothing could be more inimical to the health of our State's system for administering criminal justice.
The record here unquestionably reveals that JudgeDuckman was occasionally guilty of intemperate conduct and that he knowingly misused his authority to terminate 16 prosecutions in order to achieve what he believed to be the ends of justice. Accordingly, since these matters were brought to the attention of the disciplinary authorities, some form of sanction should now be imposed. It seems to me, however, that Judge Duckman's record of service as a whole does not indicate any unfitness for judicial office. To the contrary, the hearing testimony and the flood of letters that were made available to the Commission indicates that overall he has been an intelligent, hard working, knowledgeable and compassionate jurist. Furthermore, to the extent that he demonstrated intolerance or intemperance, he did not do so out of malevolent or venal motives; [n.3] rather, his actions were clearly motivated by compassion ( see, People v LaBelle, 79 NY2d 350). Finally, Judge Duckman has apologized for his excesses and has indicated that they will not occur again. Thus, there is no need to invoke the extreme sanction of removal; the lesser sanction of censure will suffice. Since the use of the removal power here not only deprives the public of a conscientious and hard working Judge but also signals an unhealthy tolerance on the part of this Court for the heavy handed tactics of would be "Judge bashers," I
dissent from the Court's acceptance of the Commission's imposed sanction.
In the Matter of Duckman
No. 66
BELLACOSA, J. (dissenting):
I, too, respectfully disagree in this separate dissenting opinion with the Per Curiam determination to remove this Judge from his judicial office. From my personal examination of this entire record, the evidence of sustainable misconduct does not rise to the extreme level of egregiousness, demanded by this Court's precedents, for that ultimate sanction to be imposed. Moreover, the precedential implications of this removal decision are daunting and disturbing (a) insofar as the future scope and operations of the Commission are concerned, and (b) for the future discharge of adjudicative responsibilities, especially by trial level judicial officers who have to maintain actual and perceptual independence from all outside influences.
This Court has consistently and appropriately set the bar of removal very high: it is "an extreme sanction [that]should be imposed only in the event of truly egregious circumstances" ( Matter of Cunningham, 57 NY2d 270, 275; compare, Matter of Roberts, 91 NY2d 93, with Matter of Skinner, 91 NY2d 142, 144; see also, Matter of Kiley, 74 NY2d 364, 369 370; Matter of Steinberg, 51 NY2d 74, 83). Our precedents ordain that "removal should not be ordered for conduct that amounts simply to poor judgment, or even extremely poor judgment" ( Matter of Cunningham, supra, 57 NY2d, at 275 [emphasis added]).
The heavily relied on set of specifications in the instant case boils down to the overarching charge that Judge Duckman improperly handled 16 criminal proceedings: 13 dismissals for facial legal insufficiency, one dismissal in the interests of justice, and two adjournments in contemplation of dismissal. The accusations are that the Judge knowingly and wrongly dismissed these cases, without notice or an opportunity for the prosecution to be heard, without allowing a chance to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor.
These extrapolated rulings were statutorily unauthorized and irregular devices; they constitute improper means to reach debatably correct ends. While they should not be countenanced, they do not equal disciplinary misconduct at the egregious level for removal from office. They absolutely do not represent a pattern of conduct in any realistic context and appraisal of the full record of this Judge's career. Rather,they are qualitatively and quantitatively exceptional, measured by a fair and proportional analysis of the full gamut and docket of any judge, serving, as this Judge did, in such high volume and high intensity assignments, locales and courts. Thus, these few, never appealed and disciplinarily resurrected remnants of cases are not so out of line as to justify removal of this Judge from his judicial office.
While I agree generally that this Court should resist "any numerical yardstick for determining unfitness" (per curiam opn, at 18), our precedents provide some measuring guideposts of the overall judgmental quality and quantity necessary to elevate misconduct to a level of gravity that is required to impose the final and lifetime sanction of removal ( compare, Matter of LaBelle, 79 NY2d 350 [rejecting removal where the Judge failed to set bail without legal justification in approximately 24 cases], with Matter of Sardino, 58 NY2d 286, 289 290 [upholding removal where the Judge (1) "consistently failed (in 62 cases) to inform the accused of the right to counsel and failed to conduct even a minimal inquiry to determine whether they were entitled to assigned counsel," (2) "regularly abused his authority with respect to setting bail," and (3) "often assumed an adversarial role at arraignments by questioning defendants"]; compare also, Matter of Skinner, 91 NY2d 142, supra [rejecting removal and imposing censure], with Matter of Roberts, 91 NY2d 93, supra [accepting removal]).
The record evidence in the instant case comes nowhere near the "distortion of the judicial function" that is reflected in Matter of Sardino ( supra). This is especially so when weighed and evaluated within the precedential and judgmental universe of the multitude of other cited cases. To be sure, each disciplinary case with its sanction assessment is unique and different. Yet, the instant case fits closest to Matter of LaBelle ( supra), where the Majority of this Court rejected the removal recommendation and imposed a serious, public censure. I consider of very high concern and weight, therefore, that the breakthrough precedent established by this case will seriously and widely expand the reasonably balanced guidance that the governing principles have ordained up to now that is. And let no one make any mistake as to the grave, plenary responsibility invested exclusively in this Court by the State Constitution: the Commission cannot remove a Judge; only this Court can, absent impeachment.
This case also presents an additionally disturbing and distinct precedential concern in this allocation of power i.e., that the Commission could infer that it has a new obligation and intrusive authorization to poke into the adjudicative work of judges, legitimatized by this Court's ultimate precedential acceptance of a determined sanction recommended by the Commission Majority, insofar as it rests onthese quintessentially decisional matters of dismissed cases ( compare, Matter of Greenfield, 76 NY2d 293).
In Greenfield, this Court rejected the Commission's sanction, even of censure, where the record disclosed "serious administrative failings in petitioner's handling of the cases in issue, but no persistent or deliberate neglect of his judicial duties rising to the level of misconduct" ( id., at 295). Although a Judge's failure to promptly dispose of pending matters is generally subject to administrative correction, the Commission pushed the envelope to urge "that at some point a Judge's failure to dispose of pending matters must be viewed as misconduct within its jurisdiction" ( id., at 297). This Court emphatically rejected the Commission's misguided incursion, concluding that it "would overlap the jurisdiction clearly granted to those administering the courts" and "would permit the Commission to intervene in the administrative process whenever it believes that a Judge has failed to dispose of pending matters within unspecified time limits in an unspecified number of cases and on a case by case basis" ( id.). The instant case represents a far deeper incursion, insofar as the 16 now disciplinarily challenged rulings are concerned, because the overlap and intervention drive into the very heart of the adjudicative administration and delivery of justice by a trial judge.
Furthermore, I am unable to accept that removal here may be justified under an exacerbation theory, related to aseries of "instances of petitioner's inappropriate behavior in his dealings with persons appearing before him, demonstrating impatience and intolerance, even at times ordering prosecutors who disagreed with him out of the courtroom" (per curiam opn, at 13). These unfit to serve characterizations are associated with and derived from a collection of misdeeds mixed with indecorous and indiscrete comments, admonitions, sarcasm and wisecracks. The utterances made in the rough and tumble world of the New York City arraignment and criminal courts are sharply contested, acontextual, selective and subjective. They also do not satisfy, on proportional record analysis, the substantive gravity needed for removal from judicial office ( compare, Matter of Agresta, 64 NY2d 327 [upholding censure]).
My reading of this record supports a contrary, or at least reasonably competing, point of view that the substance and credibility on many of the specifications of misconduct range from questionable to weak, and are subject to significant conflicting evidence favorable to the Judge's conduct and overall performance of his judicial duties. The record fairly and fully appraised, provides reasonable to strong mitigating and countervailing evidence, in substantive detail and in credibility, which contradicts the negative debasings of the Judge's character and the unfounded projection of his permanent unfitness for judicial office.
For example, various witnesses called by the Judge, and even by the Commission, portray the Judge as an unbiased and knowledgeable Judge. A good deal of criticism has been heaped on him for bias against some prosecutors whom he apparently found deficient in performance; indeed, none of them filed any contemporaneous complaints or appeals against him anywhere until he became publicly vilified. They did, however, keep negative material in personal files over the years that was retrieved and projectiled into his disciplinary proceeding.
Thus, I consider it fair to select some particular competing evidence that I find particularly relevant and cogent on the sanction weighing issue. Barry Kamins, a former prosecutor, Chair of the Grievance Committee for the Second and Eleventh Judicial Districts, past president of the Brooklyn Bar Association, and recent co chair of that Association's Judiciary Committee, testified that he had observed Judge Duckman in court several hundred times over the years and that the Judge "is more knowledgeable about criminal law, in my opinion, than any other judge in the Criminal Court in Kings County" (Transcript, vol XVI, at 3324). He also testified that he never heard the Judge "shout or yell," but at most "heard him speak in a frustrating tone, which is not novel" ( id., at 3331). He testified that the Judge "holds both sides accountable" and that there is no "double standard" ( id., at 3333).
Former Judge and Acting Justice Alain Bourgeois, now a practicing attorney, also testified:
"From what I observed, he dealt with [issues] effectively, and although he was demanding of respective counsel, although he obviously held them to a high standard, I believed that he held them to an appropriate standard and an equivalent standard. I think the frustration that one feels sitting in the Criminal Court is difficult to contain; I didn't see it spill over in any way in Judge Duckman's handling of cases that I observed." (Transcript, vol XVI, at 3354).
Juda Epstein, a former prosecutor who appeared before the Judge regularly, testified that the Judge "was absolutely down the line fair," that he did not treat the prosecution more harshly or differently from the way he treated the defense (Transcript, vol XVIII, at 3759, 3796). In fact, he testified that in one case, the defense attorney complained that the Judge was "too pro prosecutorial" ( id., at 3796).
Gerald Allen, former Kings County prosecutor and former Deputy Bureau Chief of the Criminal Courts Bureau, called by the Commission, testified on cross examination that the Judge was "definitely * * * the best trial judge in the building" (Transcript, vol VII, at 1388), and that he exhibited "almost exclusively good behavior" ( id., at 1389).
These necessarily selective appraisals illustratively and strongly negate the mischaracterization of this Judge by the Majority at the Commission on Judicial Conduct level (seven of eleven Commissioners). No matter how many favorable letters areassembled, however, they cannot make the case one way or the other on the appropriate sanction; no more, I respectfully submit, than the necessarily incomplete materials the Commission Majority and this Court's Per Curiam Opinion focus and rely on, and adopt. The whole record must be evaluated.
It is, nevertheless, quite significant to me that more than one hundred attorneys wrote to the Commission in early 1996 to protest the publicized ultimatums for the removal of Judge Duckman concerning a media intensified ruling that proved not to be misconduct. This varied array of personal letters and direct appraisals are part of the whole record. They depict an individual significantly different from and somewhat better than the "mean spirited" and "bullying" judge, sobriqueted by the Commission as some caricaturized martinet ( see, Commission Majority Opinion, at 7). The characterizations seem to me neither accurate, nor fair.
At least for some balance, it should be observed that the numerous evidentiary letters in the "Book of Letters" are neither from partisans, nor are they of merely character reference quality. They are from ordinary lawyers, court employees and others representing a wide cross section of people and professionals who worked in and around and observed Judge Duckman in the performance of his judicial duties over long and different periods of time. Surely, their real evidence is worthy of some consideration and greater weight than this materialgarnered from the Hearing Referee or the Commission itself which apparently was naught.
These letters also provide and constitute empirical and directly relevant evidence presented as part of the defense case before the Commission on the sanction weighing issue. The credibility and lack of outcome interest of these many letter writers (thus enjoying some reasonable and creditable professional objectivity) are very illuminating for those who would look to the whole picture with its varying hues and textures. They are appropriate to weigh on the sanction mitigation aspects of this particular case, as this Court is exclusively obligated to do.
In sum, removing this Judge on this record represents a disproportionate redress, when examined in the dispassionate reflection of the less than egregious level of cobbled misconduct. This is especially so in the balance wheel of these overwhelmingly favorable, on the firing line source appraisals of the Judge's adjudicative work and good character.
The genesis, breadth and nature of the exceedingly pervasive investigation of this Judge by the Commission staff are at least also contextually noteworthy. In my view, these features raise legitimate concerns and reflect an acutely unfair methodology with questionable motivation for the Commission's course of action. The diverse perceptions and evaluations, even among the Commission members, provide an eye opening window intounderstanding the skewed and distorted process that propelled itself ultimately into this divided Commission recommendation. Seven members voted to recommend the most severe sanction, and they were even divided as to some specifications; four of the eleven Commissioners voted for censure only for differing reasons.
The dissenters at the Commission tendered an array of particulars for this Court to consider in mitigation of the sanction recommendation. They summarized their reasons for public censure as the sufficient level of redress, for example, as follows: (1) none of the acts committed resulted in a deprivation of liberty; (2) none of the acts was motivated by self interest; (3) all of the improper dismissals involved misdemeanors; (4) on no occasion did prosecutors find Judge Duckman's knowingly erroneous dismissals of cases serious enough to warrant complaints to his judicial administrative superiors or even appeals by them as "aggrieved" litigant parties (though they instead chose to stockpile grievances in personal files for future retrieval to be used in collaboration with a drumbeat to remove a Judge for an unpopular decision); and (5) the instances of misconduct are few compared to the tens of thousands of cases Judge Duckman handled in his five year career.
My judgment coincides with that of the dissenting Commissioners: the ultimate sanction here is disproportionate to the nature, number and gravity of the proven and acknowledgedjudicial misdeeds, mis speaks and mishaps. Under the applicable preponderance of the evidence standard, the case for the removal penalty falls short of the extreme egregiousness necessary. Since this Court is the only and exclusive guardian of a neutral and independent adjudication of these matters, it should reject the recommended sanction. Up to now I have concentrated essentially on the individual justice aspects of this Court's responsibility to accord to Judge Duckman all his rights of fair procedure and full review since we are his only court of review.
Now I turn to the twin tower of this Court's role precedential responsibility. Removal here will have an inescapably adverse impact in that quintessential universe, as it affects the vital and vibrant independence of the judicial function and branch of government. The conduct of judges and the culture of the operation and decision making in trial courts will be necessarily and materially altered and affected by today's decision. Many of the effects will be hidden from view, buried in the hearts and psyches of judges as they think, work and worry their way through a myriad of dockets and rulings, peering or at least seeming to peer over their shoulders at severely scrutinizing critics, disappointed lawyers, disgruntled litigants and the second guessing Commission itself. Other consequences include emboldening critics towards even more deconstructive attacks on judges and their rulings at every turn, twitch and utterance. These combined visible and invisible consequencescannot help but threaten the independence and damage the integrity of the jewel of this State's judicial process actually and perceptually. Fortunately, the judiciary and judicial process are strong and will survive, and so I agree with the Per Curiam opinion's observation that this case and circumstance do not create a state of peril. Yet, this does not bode well for the deliberative administration of justice.
Lastly, to the extent made relevant on the sanction determination, this Judge acknowledged on the record the inappropriateness of many of his actions ( compare, Transcript at 33, 53, 59, 66 68, 80, 81, 86, 97 98, with per curiam opn, at 21). In fact, in my view, the overall tenor of the Judge's testimony and positions before the Hearing Officer, the Commission and this Court, was apologetic and contrite.
Moreover, this Court's guiding precepts do not demand that judges who are fighting for their professional lives and reputations must throw in the towel as part of their "defense" ( compare, Matter of Kiley, 74 NY2d 364, 371, supra [removal rejected and censure imposed] [adding this Court's wise caution against using "lack of candor" (something I would deem worse than asserted "lack of contrition") as an aggravating circumstance to pump up a more serious sanction]). Thus, judges should not have to "kneel penitently in the snows of Canossa" before the Commission; Judge Duckman is not Emperor Henry IV and the Commission is not Pope Gregory VII.
It should suffice that accused judges should tell the truth, be candid and acknowledge wrongdoing that they are truly guilty of and to the extent necessary and consistent with maintaining a defense against wrongful criticisms and charges. Indeed, even an appropriate measure of remorse and resolve to conform to acceptable judicial behavior and norms are prudent and useful. On the other hand, judges surely are not obligated to plead guilty, no matter what is thrown at them, nor are they expected to rely merely on the "mercy" of the Commission.
I vote for censure only, because I am unconvinced and unable to pronounce that this Judge is incorrigibly and irredeemably unfit to serve as a Judge ever again.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and Lorin M. Duckman is removed from his office of Judge of the Criminal Court of the City of New York, Kings County. Opinion Per Curiam. Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur. Judge Titone dissents and votes to reject the determined sanction in an opinion. Judge Bellacosa dissents and votes to reject the determined sanction in a separate dissenting opinion.
Decided July 7, 1998
Judge Lorin Duckman, a judge who got a bum rap
Several times a week for the past three years, the New York Post has pounded on the theme of Judge Lorin Duckman, who is guilty of murder, the Post claims, because in 1996 he let a dangerous criminal out of jail who proceeded to go home and murder his girlfriend, and then to kill himself.
New York Post for September 12, 1997: "GRIEVING MOM: DUCKMAN KILLED MY GIRL"
Because of constant pressure from the New York Post, Judge Duckman was brought up on disciplinary charges and finally was removed as a judge in 1997.
But are these the real facts? Is Judge Duckman really an accomplice to murder?
Here are facts which the Post rarely mentions:
The man, Benito Oliver, who was released only to kill his live-in girlfriend, Galina Komar, did not kill her right away as has been implied. They lived together for three weeks after his release without incident. The woman was his girlfriend. They had lived together for years. Nobody knew him better than she did. She chose to live with him.
Judge Duckman lowered his bail so as to release him at a time when he had already been in jail for five months. During these five months, the woman in question had continued to live in his apartment. He paid the rent. The DA's office tried to convince her to move out and into a battered woman's shelter or back with her mother or elsewhere, but she refused to move. She insisted on continuing to live in his apartment.
The purpose of bail is to insure that the accused appears in court when required to do so. He had always appeared in court when required.
The woman refused to testify against the man. There was no evidence to hold him.
In short, Judge Lorin Duckman followed the law when releasing the man on bail. It is unfortunate that the man, once released, later killed his girlfriend and then himself. However, as a criminal court judge, Judge Duckman heard more than one hundred cases every day. These things happen. The accused would have been released eventually. There was nothing Judge Duckman could ultimately have done to prevent this murder.
The fact that the New York Post could hound a judge out of office merely because the judge did what the law required him to do, has implications for society. When a woman makes an accusation against her lover or boyfriend, experience tells us that these accusations are often not true. Yet, judges become afraid to release a man on bail, regardless of how wrongfully accused he may be, for fear of being attacked by publications like the New York Post, which is owned by British scandal-monger Rupert Murdoch. No judge ever lost his job for wrongfully convicting an innocent man, but judges often are accused in the press of being "soft on crime". Stories like this sell newspapers.
This leads to cases such as the Oliver Jovanovic case, where the judge would not allow the jury to see evidence pointing to the innocence of the accused. It leads to thousands of men serving long prison terms, who are not remotely guilty of anything.
Sam Sloan
The New York Times: "The Case for Duckman as a Scapegoat"
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