Cite as: In the Matter John Doe v. NYS Comm.on Judicial Conduct, 11-0421, NYLJ 1202578598743, at *1 (Sup., Onondaga, Decided April 26, 2011)

Justice John C. Cherundolo

Decided: April 26, 2011

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.





This matter involves a Complaint initiated by the New York State Commission on Judicial Conduct ("Commission") against the petitioner, Hon. Andrew N. Piraino, a Justice of the Salina Town Court in the County of Onondaga, for judicial misconduct. The petitioner is alleged to have engaged in misconduct in violating canons of judicial conduct and various sections of the NYCRR1 by dispensing fines for traffic violations that have either been in excess of, or below, the appropriate statutory range.2 Petitioner does not dispute the underlying factual allegations, but rather argues that any imposed fines that were outside of the statutory range were a result of "administrative mistake, unintentional oversight, simple negligence or other mental lapse." See Affidavit of




Petitioner at ¶2. Petitioner further argues that his actions do not rise to the level of unethical conduct, and thus the Commission is devoid of jurisdiction to investigate the Complaint. Currently at issue before the Court is the petitioner's motion to dismiss the Formal Complaint in its entirety.


The petitioner is a Judge in the Town of Salina and has been a practicing attorney for approximately twenty-eight (28) years. He was elected Judge of the Town of Salina in November, 1993, where he has continuously held this part-time position to date, a period of around sixteen (16) years. On or about May 14, 2009, the petitioner received a letter from the NYS Commission on Judicial Conduct indicating that the Commission was concerned about the fines and surcharges being imposed on traffic-related matters as well as the petitioner's allowance of traffic-related matters to be reduced to pleas to Vehicle and Traffic Law §1101.3 In response to this letter, petitioner notes that he voluntarily produced copies of all the court records pertaining to the listed cases, which he submitted to the Commission on June 11, 2009. Moreover, based on this letter of inquiry from the Commission, petitioner issued and published a Local Rule, dated May 28, 2009, which noted that petitioner would no longer accept dispositions via a plea to VTL §1101.

Petitioner asserts that at no point, between the time when he became a judge on January 1, 1994, to receiving the Letter of Inquiry from the Commission on May 14, 2009, did he receive any contact or question regarding the quality of his work




performed as a Salina Town Judge. In fact, the petitioner understood that his judicial work was considered excellent and exemplary based on conversations with representatives of the Office of Court Administration. See Affidavit of Petitioner at ¶11.

On February 7, 2011, this Court Ordered that under Judiciary Law §4, all further proceedings with regard to this matter would be closed to the public. Moreover, consistent with Judiciary Law §45 and 22 NYCRR §7000.8, it was ordered that the caption for this matter shall refer to the petitioner as "John Doe" in order to protect petitioner's identity. Finally, pursuant to CPLR Article 63, a Temporary Retraining Order was granted, restraining the Commission "from taking any acts in furtherance of prosecuting the Formal Complaint dated May 20, 2010, without further order from this Court." The Commission was then ordered to show cause as to why a writ of prohibition, as well as an Order, Judgment and Decree should not be granted vacating the Formal Complaint of May 20, 2010.


Article VI, §22(a) of the NYS Constitution states that the Commission on Judicial Conduct "shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice…[and] a judge may be admonished, censured or removed for cause, including but not limited to misconduct in office, persistent failure to perform his duties, habitual intemperance, and conduct on or off the bench, prejudicial to the administration of justice…" See also 22 NYCRR §7000.9(a); §44(1) of the Judiciary Law (Upon receipt of a complaint (a) the commission shall conduct an investigation of




the complaint; or (b) the commission may dismiss the complaint if it determines that the complaint lacks merit).

The Complaint charges that through his actions in handing out improper fines for traffic violations, the petitioner violated several "rules" of judicial conduct in failing to: "participate in establishing, maintaining and enforcing high standards of conduct" (22 NYCRR §100.1); "respect and comply with the law" (22 NYCRR §100.2(A)); "be faithful to the law and maintain professional competence in it" (22 NYCRR §100.3(b)(1)); "maintain professional competence in judicial administration" (22 NYCRR §100.3(C)(1)); and "require staff, court officials and others subject to the judge's direction and control to observe the same standards of fidelity and diligence that apply to the judge." (22 NYCRR §100.3(C)(2)).

Generally speaking, misconduct in the form of dishonesty has been seen as grounds for discipline irrespective of whether the judge's overall record is "above reproach." See Matter of Greenfield, 76 N.Y.2d 293, 297 (citing Matter of Boulanger, 61 N.Y.2d 89 (1984); Matter of Sardino v. State Commission on Judicial Conduct, 58 N.Y.2d 286 (1983)). However, as the Court of Appeals noted in Gilpatric:

In Greenfield itself, we recognized that when a judge has defied administrative directives or has attempted to subvert the system…the Commission has the authority to sanction a judge. 13 N.Y.3d 586, 589-90.

While the Greenfield and Gilpatric decisions shed some light on the present matter, they are not determinative. Both of those cases involved judges who had failed to dispose of cases in a timely manner. Both cases recognize the possibility of formal repercussions from the Commission in cases of persistent egregious delays. Greenfield assessed such delays as administrative failings, and under the circumstances presented,




the Court of Appeals did not believe the delays warranted disciplinary procedures. 76 N.Y.2d at 299.

Giltatric, expanded upon Greenfield to the extent that it held that there are circumstances where persistent delays in cases, while administrative matters, can rise to the level of judicial misconduct warranting discipline. See Matter of Gilpatric, 13 N.Y.3d 586, 589-90. Such circumstances may include persistent delays despite administrative directives to help assist or correct the problem. Id.

The current matter is not about delays in cases, but rather the imposition of improper and excessive fines for traffic violations; a matter which petitioner contends is best suited for administrative correction as opposed to disciplinary procedures. However, as respondents point out, the relevant inquiry is not whether petitioner has committed misconduct, but rather whether the Commission has the power to determine whether or not misconduct has occurred after a hearing.

Article VI of the NYS Constitution, as well as relevant portions of the Judiciary Law and the NYCRR, make clear that the Commission of Judicial Conduct has the authority to "receive, initiate, investigate and hear complaints" and determine whether or not a Judge should be disciplined for misconduct.

Contrary to petitioner's arguments, this is not a "test case." The Commission has disciplined judges in the past for handing out fines which exceeded the maximum allowed by law. See Matter of Banks, 2009 WL 2400327 (N.Y. Comm. on Jud. Conduct); See also Matter of Pisaturo, 2005 WL 5727956 (N.Y. Comm. on Jud. Conduct). In Banks, the Commission found that a judge violated the above provisions of the NYCRR when he imposed fines above the maximum amount allowable in over 209 cases. Id. The Commission stated that although it was stipulated that the judge acted




unintentionally, it was his responsibility to know the law, and his conduct was harmful to individuals and society in creating at least an appearance that the judge was imposing higher fines in order to increase the town's revenues. Id. at *3.

Here, it is unclear whether or not the petitioner ultimately committed misconduct or violated the canons of judicial ethics. What is clear is that this is a determination to be made by the NYS Commission on Judicial Conduct. Petitioner's imposition of improper fines in over 900 cases certainly warrants a hearing and a full record through which the Commission can reach a decision. For the foregoing reasons, petitioner's request for an Order vacating the Formal Complaint is hereby DENIED.

Further, the Court DIRECTS counsel for the respondent to submit a proposed Order in keeping with this Decision and attaching a copy of this Decision thereto, upon notice to counsel for the petitioner.

1. NYCRR §§100.1, 100.2(A), 100.3(B)(1), 100.3(C)(1)-(2).

2. The Complaint alleges that approximately 900 traffic cases adjudicated in petitioner's court between January, 2006 and May, 2008 which were either disposed of with fines that were too high, or too low in conjunction with the statutory range. In approximately 791 of those cases, fines were issued in excess of $13,451 beyond the statutory range. In another approximately 150 cases, fines were dispensed in an amount of $6,404 below the statutory minimum.

3. Section 1101 of the VTL essentially is a general charge for failure to obey traffic laws.