Cite as: In Re: John Doe v. NYS Comm. on Judicial Conduct, 2011-0421, NYLJ 1202578598670, at *1 (Sup., ONO, Decided September 27, 2012)

Justice John C. Cherundolo

Decided: September 27, 2012

ORDER

 

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The court originally heard and considered a Verified Petition dated January 20, 2011 together with all supporting papers and then issued an Order to Show Cause and Temporary Restraining Order dated February 7, 2011; respondent submitted a Verified Answer and Return dated February 18, 2011; the court received, reviewed and made part of the record respondent's Memorandum of Law dated February 18, 2011, and petitioner's Memorandum of Law dated February 22, 2011; the court issued a Written Decision dated April 26, 2011; and executed an Order May 12, 2011, which Order was filed on the Onondaga County Clerk's office on May 17, 2011. In essence, the May 12, 2011 Order dismissed the Verified Petition, unsealed the record and vacated the Temporary Restraining Order;

Petitioner served and filed a Notice of Appeal dated June 3, 2011; and in addition by Notice of Motion dated June 6, 2011 moved the court to renew and to reargue the merits

 

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of the original motion; the Motion to Renew and/or Reargue was supported by the Affirmation of petitioner's Attorney Aaron Zimmerman dated June 6, 2011; respondent filed opposing papers consisting of the Affirmation of Assistant Attorney General Heather R. Rubinstein dated June 20, 2011, and the Affidavit of Robert H. Tembeckjian dated June 17, 2011; petitioner's Attorney Aaron Zimmerman filed a reply affirmation dated June 27, 2011;

Petitioner's application for relief was returnable at a Motion Term of this court held on June 30, 2011 in Syracuse, New York; at that time the court heard oral arguments from Attorney Aaron Zimmerman on behalf of petitioner; and from Assistant Attorney General Heather R. Rubinstein on behalf of respondent, New York State Commission on Judicial Conduct [hereafter Commission];

NOW UPON due deliberation of the above referenced documents and oral argument of counsel; and the court having made issued an oral decision and oral rulings from the Bench, it is hereby

1. ORDERED, that the court's oral Bench Decision of June 30, 2011 which has been transcribed shall be attached hereto as a decision and an explanation supporting this ordering document; and it is further

 

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2. ORDERED, petitioner's motion to renew is granted; and petitioner's motion to reargue is granted; and it is further

3. ORDERED, that consistent with the concepts of Judiciary Law §4, 12 NYCRR §7000.8, 22 NYCRR §216.1, and based on the court's inherent powers, as identified in Matter of Hynes v. Karassik 47 NY2d 659, 664 (1979), the Clerk of this Court shall immediately seal all papers, documents, and proceedings relating to this matter; further, no documents, information or detail shall be released to any entity, other than one of the parties or party's counsel, without further order of this court; and it is further

4. ORDERED, that consistent with the concepts Judiciary Law §45 and 12 NYCRR §7000.8, the Commission, its Administrator and Counsel Robert H. Tembeckjian, and all of its Commissioners, attorneys, representatives, employees and agents shall immediately seal and keep confidential all papers, documents, and proceedings relating to this matter; further, no public statements may be made by or on behalf of the Commission; and no documents, information or detail regarding this matter shall be released to any entity, other than one of the parties or party's counsel, without further order of this court; And to the extent the Commission has previously released, published or distributed any papers, documents, or otherwise disclosed information regarding these proceedings the Commission shall make a good faith effort to recall said documents and disclosures without identifying the motivation for such recall; and it is further

 

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5. ORDERED, that the caption of this matter shall be styled as "John Doe v. New York State Commission on Judicial Conduct" and all references to petitioner shall be as "John Doe," it being a fictitious name for petitioner who is a duly elected town justice in the State of New York; and it is further

6. ORDERED, that the Temporary Restraining Order originally issued by this court on February 7, 2011 is hereby reinstated in its entirety; and the Commission is hereby restrained from taking any acts in furtherance of prosecuting petitioner pursuant to the Formal Complaint dated May 20, 2010 [hereafter the Formal Complaint], without further order of this court; and it is further

7. ORDERED, that within 60 days, the parties shall confer and submit the court, separately and/or jointly, the following documents, summaries, schedules, memoranda of law, reports, and otherwise respond to the following mandatory directives:

a] Copies of all records from petitioner's town court relating to each matter upon which the Commission bases its Formal Complaint. The records regarding each such matter shall be segregated by name of each defendant and shall include all of the original charging instrument(s); the court's internal notes and documents; plea details; and information regarding dispositions, including the ultimate plea(s) or finding(s) of guilt; and the fines, surcharges

 

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and sanctions imposed.

These documents and records should contain factual information describing the actions and activities taken by petitioner and petitioner's town court personnel regarding each such matter (collectively these are hereafter identified as the Underlying Matters).

b] A spread sheet, or other summary, identifying each of those Underlying Matters where there was involvement, contact or other communication with the District Attorney; in what manner the District Attorney was involved; and identifying those Underlying Matters where the District Attorney was not involved.

These documents and records should contain factual information showing the District Attorney's involvement, if any, in each such matter.

c] A spread sheet, or other summary, identifying each of those Underlying Matters where the defendant was represented by an attorney, in what manner the attorney was involved, had contact or other communication with the court; and identifying those Underlying Matters where the defendant was not represented by an attorney.

 

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These documents and records should contain factual information showing defense counsel's involvement, if any, in each such matter.

d] A spread sheet, or other summary, identifying for each Underlying Matter the original charge(s) [that is a listing of every ticket and charge issued to the individual defendant], together with a listing of the possible range of fines, surcharges, penalties and sanctions for each original charge; then, what the final disposition of each charge was, and the manner in which the fine, surcharge or other sanction imposed was inconsistent with the applicable statute and/or regulation. To the extent there was an inconsistency, the specific statute and/or regulation shall be identified, together with the amount or nature of the inconsistency.

These documents and records should contain factual information showing the complexity or lack of complexity of the State's fine, surcharge and sentencing system; as well as the extent to which petitioner's sentencing errors deviated from the State mandated parameters, if any, in each such matter, and, if the sentence imposed took into account that several matters were consolidated and resolved by an agreed plea to a lesser number of charges.

e] A spread sheet, or other summary, identifying for each Underlying Matter

 

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where it is alleged there was an error committed by the clerk(s) and/or administrative personnel of the petitioner's town justice court. The Commission is to provide factual specifications of each alleged error committed by petitioner's town justice court's clerks and/or administrative personnel. In addition, for each such Underlying Matter, the Commission shall file factual specifications, if any, as to petitioner's active or direct involvement in said clerk and/or administrative personnel's error(s). To the extent the Commission's Formal Complaint against petitioner is based on an allegation of a so-called "general failure to supervise" the clerks and administrative personnel of the town's justice court, the Commission shall affirmatively detail the minimum acceptable standard of conduct to be employed by the State's town judges in overseeing and supervising the court's clerks and administrative personnel.

These documents and records should contain factual information showing petitioner's involvement, if any, in the errors committed by the court's clerks and/or administrative personnel; and the existing legal and factual standard, if any exists, regarding the manner in which the State's town judges are required to monitor, supervise or oversee the actions of the court's clerks and administrative personnel; and to determine if said standards have been previously published or otherwise disseminated to the State's town judges.

 

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f] A spread sheet or other summary shall be submitted identifying each reporting requirement for the State's town justice courts, to whom each report is to be submitted [eg. Department of Motor Vehicles, NYS Comptroller, Office of Court Administration, and Unified Court System]; and the interval timing requirements for each report. If any such required report was subject to an audit, a copy of such audit shall also be submitted; and if no such audit was undertaken an affidavit of that fact shall be submitted. The Commission's Formal Complaint covers petitioner's activities from January 1, 2006 through May 30, 2008. Copies of all reports submitted by or on behalf of petitioner's town court are to be submitted.

These documents and records should contain factual information as to the purpose of the reports; who receives the reports; to what extent, if any, the reports are audited; and to what extent, if any, feedback is provided to the State's town judges. In addition, the documents and records should contain factual information as to what checks and balances are in place to assist the State's town judges in avoiding sentencing mistakes and to protect the citizens from such unintended errors. To the extent necessary, the parties shall cite statutes, regulation, and/or directives; and otherwise describe the oversight process employed by the Office of Court Administration, the Unified Court System and/or otherwise as to how the State's town courts and its judges are

 

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administratively overseen and monitored.

g] A report describing if Office of Court Administration, and/or the Unified Court System, or any entity affiliated with the State's town justice courts requires, allows or recommends the use or implementation of computer software programs designed to prevent, limit or otherwise alert the responsible individuals that a proposed fine, surcharge or other sanction is outside the parameters authorized by statute and/or regulation.

These documents and records should contain factual information identifying if any computerized system is required, allowed or is available to assist the State's town justice courts in avoiding sentencing errors.

h] A spread sheet or other summary shall be submitted identifying every written complaint, censure, warning, or admonishment given to petitioner by any agency, or entity to whom petitioner's town court submits reports. A copy of said complaint(s) shall be submitted, and if no such complaint(s) have been issued an affidavit of that fact shall be submitted to the court.

These documents and records should contain factual information as how and if petitioner was on actual or constructive notice that the quality or quantity

 

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of his judicial actions were in any fashion sub-par.

i] A spread sheet or other summary shall be submitted identifying every written complaint, censure, warning, or admonishment given to petitioner by the Office of Court Administration or Unified Court System regarding the quantity or quality of petitioner's judicial activities. A copy of said complaint(s) shall be submitted and if no such complaints have been issued an affidavit of that fact shall be submitted to the court.

These documents and records should contain information as how and if petitioner was on actual or constructive notice that the quality or quantity of his judicial actions were in any fashion sub-par.

j] The Commission shall submit factual specifications for each Underlying Matter describing how each of petitioner's individual errors identified in the Formal Complaint constituted unethical judicial misconduct, including what aspect of petitioner's actions showed and otherwise constituted mens rea.

These documents and records should contain factual information as how and/or in what fashion petitioner's errors were based on intentional misconduct or other volitional action, as opposed to unknowing errors based

 

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on misapplying and/or misapprehension of fact and/or law.

k] The Commission shall submit a report and/or memoranda of law describing the Commission's position on its authority to intervene in a town judge's actions and decisions allowing multiple charges to be reduced to a single charge; and the Commission's authority to intervene in the plea bargain process, including the judge's ability to impose fines and surcharges.

These documents and records should contain factual information as how and/or in what fashion the Commission has authority to intervene in the day-to-day operations of the State's town justice courts.

l] The Commission shall submit a report and/or memoranda of law describing the Commission's position on where the line is to be drawn between when one or more sentencing errors by a town judge calls for administrative action by the Office of Court Administration and/or Unified Court System; and conversely, when the judge's sentencing error(s) constitutes unethical judicial misconduct over which the Commission has jurisdiction to prosecute. In this submission, the Commission shall describe what level of mens rea is required before a judge can be prosecuted for unethical judicial misconduct as a result of a sentencing error. The Commission shall also identify how and in what

 

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manner a judge can be charged with mens rea if the judge did not have knowledge of prior sentencing errors

These documents and records should contain factual information as how and/or in what fashion the Commission has authority to intervene in the day-to-day operations of the State's town judges; and when one or more mere administrative error(s) converts into a chargeable an act of unethical judicial misconduct.

m] The Commission shall submit a report and/or memoranda of law describing the Commission's authority to intervene in a town judge's acts of allowing and accepting a defendant to plea bargain one or more traffic related infractions and/or misdemeanors down to one or more VTL §1101 dispositions; and to what extent, if any, the Commission has authority to intervene when a town judge equitably imposes a fine, surcharge and/or other sanction for a VTL §1101 disposition.

These documents and records should contain factual information as how and/or in what fashion the Commission has authority to intervene in the day-to-day operations of the State's town justice courts. Even though the Commission has not, as yet, issued a Formal Complaint [See 12 NYCRR

 

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§7000.1(g)] against petitioner for his previously allowing and accepting plea bargains to VTL §1101 dispositions, the Commission has likewise not issued a finding or other final determination on this issue. It is manifestly unjust and inequitable, for the Commission to commence an Investigation [See 12 NYCRR §7000.1(j)] of a sitting town judge regarding potential charges of unethical judicial misconduct, but not to timely issue a Dismissal [See 12 NYCRR §7000.1 (f)], or other formal determination stating that the Investigation is closed with a finding of no cause for action. In this case, the existing record before the court shows petitioner, solely as a result of the Commission's Investigation immediately issued a Local Rule refusing to accept or approve plea bargained VTL §1101 dispositions. Even though the Investigation has been completed, the Commission has failed to either Dismiss its Investigation on this issue or file a Formal Complaint. While the VTL §1101 issue is not part of the pending Formal Complaint dated May 20, 2010, the court sua sponte directs the Commission to disclose and describe its practices and procedures for closing or otherwise Dismissing a matter once an Investigation is commenced, as the Commission's practices and procedures clearly impact the day-to-day functioning of the States' town justice courts.

n] The Commission shall submit a report and/or memoranda of law describing the Commission's position relative to the Commission's authority to intervene

 

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in a town judge's acts of allowing and accepting a plea bargain whereby multiple traffic related infractions and/or misdemeanors are reduced to a single or lesser number of charges; and to what extent, if any, the Commission can intervene when a town judge equitably imposes a fine, surcharge and/or other sanction.

These documents and records should contain factual information as how and/or in what fashion the Commission has authority to intervene in the day-to-day operations of the State's town justice courts.