To Be Argued By
Edward Lindner, Esq.
JCR-2017-00006 Time Requested: 15 Minutes
Court of Appeals
of the
State of New York
_____________
In the Matter of the Request of
J. MARSHALL AYRES,
a Justice of the Conklin Town Court, Broome County,
Petitioner,
For Review of a Determination of the
NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT,
Respondent.
BRIEF FOR RESPONDENT STATE
COMMISSION ON JUDICIAL CONDUCT
ROBERT H. TEMBECKJIAN
Counsel for Respondent State
Commission on Judicial Conduct
Corning Tower, 23rd Floor
Empire State Plaza
Albany, New York 12223
Of Counsel: 518-453-4613
Edward Lindner, Esq.
Mary C. Farrington, Esq.
Cathleen S. Cenci, Esq.
Eteena J. Tadjiogueu, Esq.
Dated: July 24, 2017
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ....................................................................................... vi
PRELIMINARY STATEMENT .................................................................................. 1
PROCEDURAL HISTORY ......................................................................................... 2
A. The Formal Written Complaint ..................................................................... 2
B. Petitioner’s Answer ....................................................................................... 3
C. The Hearing ................................................................................................... 3
D. The Referee’s Report ..................................................................................... 4
E. The Commission’s Determination ................................................................. 5
THE FACTS ................................................................................................................. 8
Charge I: Petitioner lent the prestige of judicial office to advance the private
interests of his daughter, attempted to influence the disposition of her
traffic ticket, and was rude and impatient toward the prosecutor.
A. Petitioner’s 30-year-old daughter, Julie Ayres, received a
traffic ticket for violating section 1225-d of the VTL –
Operating a Motor Vehicle While Using a Portable
Electronic Device. ......................................................................... 8
B. Petitioner went to the Kirkwood Town Court and asked a
clerk to transfer the ticket from Judge Coe’s docket to
Judge Weingartner’s docket. ...................................................... 10
C. Petitioner telephoned Judge Weingartner, asked him to
handle his daughter’s traffic ticket, and attempted to
provide facts about his daughter’s case. ..................................... 10
ii
D. Petitioner’s daughter attended a pre-trial conference with
the prosecuting attorney and was offered a plea of guilty
with a minimum fine and surcharge. ........................................... 12
E. Petitioner attended a pre-trial conference with his adult
daughter, advocated to have the charge dismissed, and
made impatient, discourteous and undignified remarks to
the prosecuting attorney. ............................................................. 13
F. Judges Coe and Weingartner filed a complaint with the
Commission concerning Petitioner’s improper
interference in People v Julie Ayres. ........................................... 18
G. Petitioner’s testimony regarding Charge I ................................... 19
Charge II: In connection with the appeals of two orders in People v Finch,
Petitioner mailed ex parte letters to the County Court in which he
advanced legal and factual arguments in support of his orders, and
made biased, discourteous and undignified statements about the
defendant and his counsel. Petitioner failed to submit the court’s
return in a timely manner.
A. Stephen Finch was charged with three criminal offenses,
was sentenced by Petitioner, and appealed Petitioner’s
order of restitution. ...................................................................... 21
B. Broome County Court Judge Martin E. Smith issued an
order directing Petitioner to file the court’s return by
November 8, 2011, and Petitioner failed to comply. .................. 23
C. Petitioner submitted a response to the affirmation of
errors in which he argued that the appeal lacked merit
and should be dismissed. .............................................................. 24
D. County court remanded the matter to Petitioner for a
second hearing. ............................................................................. 25
E. Petitioner sent a letter to Broome County Court arguing
that defense counsel lacked standing to pursue the appeal
and that the appeal should be “summarily dismissed.” ............... 26
iii
F. Petitioner sent an unsolicited letter to Judge Smith in
which he expressed extreme “disappointment” with
Judge Smith’s decision to appoint Mr. Fritzsch and made
a series of hostile and demeaning remarks concerning the
defendant and his counsel. ........................................................... 27
G. Judge Smith wrote an “instructive” letter to Petitioner
concerning his misunderstanding of the appellate process
and his troubling comments about the merits of the
defendant’s appeal........................................................................ 29
H. Petitioner failed to comply with Judge Smith’s order
directing him to file the court’s return by June 21, 2013,
and instead resubmitted his offensive January 18th letter. .......... 31
I. Petitioner continued to write letters to County Court
arguing that the appeal was meritless, defense counsel’s
arguments were “ludicrous,” and the appeal should be
dismissed. ..................................................................................... 32
1. Mr. Fritzsch’s memorandum on appeal ............................ 33
2. The motion to vacate ......................................................... 34
J. Petitioner’s testimony concerning Charge II ............................... 35
ARGUMENT .............................................................................................................. 37
POINT I
PETITIONER COMMITTED JUDICIAL MISCONDUCT WHEN
HE REPEATEDLY INTERVENED IN ANOTHER COURT AND
WITH THE PROSECUTOR IN AN EFFORT TO HAVE HIS
DAUGHTER’S TRAFFIC TICKET DISMISSED. ........................................ 37
A. Petitioner committed misconduct when he went to the
Kirkwood Town Court and asked court clerk Carrie Aurelio to
transfer his daughter’s ticket from Judge Coe to Judge
Weingartner. ........................................................................................... 38
iv
B. It was misconduct for Petitioner to ask Judge Weingartner to
handle his daughter’s ticket and to attempt to discuss the facts
of his daughter’s case. ............................................................................ 39
C. Petitioner engaged in serious misconduct when he went to the
Kirkwood Town Court, attended his daughter’s pre-trial
conference, and made impatient, discourteous and undignified
remarks in an effort to intimidate the Assistant District Attorney
prosecuting the ticket. ............................................................................ 40
POINT II
IN PEOPLE V FINCH, PETITIONER ABANDONED HIS ROLE AS
A NEUTRAL ARBITER AND ACTED AS AN ADVOCATE IN
APPEALS FROM HIS OWN ORDERS, INITIATED EX PARTE
COMMUNICATIONS, AND TWICE FAILED TO TIMELY
SUBMIT HIS COURT’S RETURN. ............................................................... 43
A. Petitioner committed misconduct when he sent eight letters to the
Broome County Court containing legal and factual arguments, and
made biased, discourteous and undignified statements about the
defendant and his counsel. .................................................................... 44
B. Petitioner improperly initiated ex parte communications with
the Broome County Court. .................................................................... 46
C. Petitioner failed to respect and comply with the law when he did not
submit the court’s return by the deadlines set by two separate Broome
County Court orders. .............................................................................. 47
POINT III
PETITIONER’S PROCEDURAL AND CONSTITUTIONAL
DEFENSES ARE WITHOUT MERIT. .......................................................... 49
POINT IV
PETITIONER SHOULD BE REMOVED FROM JUDICIAL OFFICE. ........52
v
A. Petitioner committed misconduct warranting removal when he
repeatedly lent the prestige of judicial office to advance the
private interests of his daughter. ........................................................... 54
B. Petitioner committed additional misconduct warranting removal
when he sent eight letters, five of which were ex parte, to the
county court hearing the appeals in People v Stephen Finch, and
failed to timely submit the court’s return. ............................................. 56
C. Petitioner’s inability to recognize and acknowledge his
misconduct further compel his removal from office. ............................ 57
CONCLUSION ........................................................................................................... 60
vi
TABLE OF AUTHORITIES
CASES PAGE
El-Dehdan v El-Dehdan, 26 NY3d 19 (2015) ............................................................ 51
Matter of Aldrich, 58 NY2d 279 (1983) ..................................................................... 58
Matter of Bauer, 3 NY3d 158 (2004) ................................................................... 50, 57
Matter of Blackburne, 7 NY3d 213 (2006) ..................................................... 44, 52, 57
Matter of Edwards, 67 NY2d 153 (1986) ................................................... 6, 54, 55n10
Matter of George, 22 NY3d 323 (2013) ....................................................... 43, 46, 53
Matter of Hart, 7 NY3d 1 (2006) ................................................................................ 57
Matter of Heburn, 84 NY2d 168 (1994) ..................................................................... 57
Matter of LaBombard, 11 NY3d 294 (2008) ............................................ 38, 39, 46, 55
Matter of Lonschein, 50 NY2d 569 (1980) ........................................................... 39, 55
Matter of Marshall, 8 NY3d 741 (2007) .................................................................... 46
Matter of Reedy, 64 NY2d 299 (1985) ....................................................................... 50
Matter of Robert, 89 NY2d 745 (1997) ...................................................................... 56
Matter of Sardino, 58 NY2d 286 (1983) .............................................................. 45, 57
Matter of Shilling, 51 NY2d 397 (1980) ............................................................... 42, 55
Matter of Simon, 28 NY3d 35 (2016) ......................................................................... 55
Matter of Sims, 61 NY2d 349 (1984) ......................................................................... 58
Matter of Tyler, 75 NY2d 525 (1990) ......................................................................... 57
vii
Matter of VonderHeide, 72 NY2d 658 (1988) ............................................................ 46
Matter of Young, 19 NY3d 621 (2012) ....................................................................... 46
Nicholson v State Comm’n on Judicial Conduct, 50 NY2d 597 (1980)..................... 49
NYS Comm’n on Judicial Conduct v Rubenstein, 23 NY3d 570 (2014). ................... 49
People v A.N., 44 Misc3d 269 (Rye City Ct 2014) ................................................ 43n9
People v Smith, 27 NY3d 643 (2016) ....................................................................... 7n4
STATUTES AND REGULATIONS
22 NYCRR § 214.11 (a) (1) ........................................................................................ 50
CPL 460.10 ................................................................................................................... 1
CPL 460.10 (3) (d) ...................................................................................... 30n7, 47, 48
Judiciary Law § 44 (4) .................................................................................................. 2
Judiciary Law § 212 (2) (l) (iv) ................................................................................... 51
Penal Law § 120.20 ..................................................................................................... 21
Penal Law § 155.25 ..................................................................................................... 21
VTL § 1225-d (1) .................................................................................................... 43n9
VTL § 1225-d (4) ................................................................................................... 43n9
RULES GOVERNING JUDICIAL CONDUCT
100.2 (A) ..................................................................................................................... 47
100.2 (B) (C) ............................................................................................................... 37
1
PRELIMINARY STATEMENT
This Memorandum is respectfully submitted by Counsel to the Commission
on Judicial Conduct (“Commission”) in support of the Determination, dated May
4, 2017, that the Honorable J. Marshall Ayres (“Petitioner”) violated the Rules
Governing Judicial Conduct (“Rules”) and should be removed from office.
Angry that County Court Judge Martin E. Smith declined to summarily
dismiss an appeal from his court, Petitioner sent a rude and disrespectful letter to
Judge Smith, chiding him for “unilaterally usurp[ing] the authority” of the town
court, disparaging appellate counsel for attempting “to pad [his] bill at the expense
of … taxpayers,” and offering extensive legal argument describing the appeal as
“ludicrous.”
Petitioner took no instruction from Judge Smith’s patient and detailed reply
advising him on his proper role in the appeal. He did not read the legal authorities
Judge Smith cited and he did not contact the Judicial Resource Center for help.
Instead, he simply disregarded Judge Smith’s directive and subsequent order that
he comply with CPL 460.10 and file his court’s return.
Petitioner also committed serious misconduct when he intervened in his
daughter’s traffic case, asking the court clerk and a judge in an adjoining town to
have the matter transferred. Undeterred when Kirkwood Town Justice Benjamin
F. Weingartner refused to discuss the merits of his daughter’s case, Petitioner
2
accompanied his daughter to her court conference and spoke to the Assistant
District Attorney in a “condescending” tone as if she were “a young little girl who
didn’t know anything.” He blatantly asserted his judicial office, telling the ADA
that “if this ticket were in my courtroom, I’d dismiss it” and that he had discussed
the case with “several other judges” who “all agreed that this should be dismissed.”
Petitioner's misconduct is greatly exacerbated by his continuing insistence
that he had “immunity” to intervene in daughter’s case and that his legal arguments
to County Court were “factually correct.” Petitioner's demonstrated misconduct
and his refusal to acknowledge wrongdoing warrant his removal from office.
PROCEDURAL HISTORY
A. The Formal Written Complaint
Pursuant to Judiciary Law § 44 (4), the Commission authorized a Formal
Written Complaint, dated March 15, 2016, containing two charges. Charge I
alleged that Petitioner lent the prestige of his judicial office to advance the private
interests of his daughter, when he attempted to influence the disposition of a
Vehicle and Traffic Law (VTL) charge brought against her in People v Julie Ayres
(A41 ¶5).1 It also alleged that Petitioner was rude and impatient toward the
prosecutor (A41 ¶5).
1 Petitioner failed to file a complete Record for Review containing “a record of proceedings upon
which the determination is based, including all record and documentary evidence or material
before the Commission in the making of its determination” as required by Rule 530.2. For the
3
Charge II alleged that in connection with the appeals of Petitioner’s orders
of restitution in People v Stephen B. Finch, Petitioner mailed eight letters – five of
them ex parte – to the Broome County Court, where the appeals were pending. In
those letters Petitioner advanced legal and factual arguments in support of his
orders and made biased, discourteous and undignified statements about the
defendant and his counsel. Despite multiple orders and directives from the County
Court, Petitioner repeatedly failed to submit the court’s return in a timely manner
(A44 ¶15).
B. Petitioner’s Answer
Petitioner filed a letter Answer to the Formal Written Complaint on May 2,
2016, in which he denied the allegations contained in the Complaint (A123 ¶2).2
C. The Hearing
By Order dated May 24, 2016, the Commission designated Michael J.
Hutter, Esq., to hear and report proposed findings of fact and conclusions of law.3
Court’s convenience, the Commission has filed an Appendix to the Record for Review
containing the complete record pursuant to Rule 530.4. Citations in the form “A” followed by a
page number refer to the Commission's Appendix to the Record for Review.
2 At the hearing, Petitioner admitted the allegations contained in paragraph four of the Formal
Written Complaint that he has been a justice of the Conklin Town Court since 2009, that his term
expired December 31, 2016 and that he is not an attorney (A129-30). On November 8, 2016,
Petitioner was elected to a term that expires on December 31, 2020 (A2).
3 The Commission determination incorrectly states the date of Mr. Hutter’s appointment as
December 17, 2014.
4
The hearing was held in Albany on August 15 and 16, 2016. Counsel for the
Commission called seven witnesses and introduced sixty-two exhibits into
evidence. Petitioner called no witnesses, introduced no exhibits and testified on his
own behalf. One item was marked as an exhibit of the Referee.
D. The Referee’s Report
On December 2, 2016, the Referee issued a report sustaining all of the
allegations in Charges I and II and concluding that Petitioner violated the Rules
(A626-27, 641-42).
With respect to Charge I, the Referee found that: (1) Petitioner asked a court
clerk to transfer a ticket that had been issued to his daughter (A617-18), (2) called
the presiding judge’s co-judge and asked him to “handle the ticket” and provided
facts about his daughter’s case (A617-18), and (3) attended a pre-trial conference
with his adult daughter and the prosecutor (A620). The Referee credited the
prosecutor’s testimony that Petitioner spoke to her in a “very authoritative, very
condescending” tone of voice (A620-21), threw a packet of paper on the table in
her direction, and again in a “very authoritative,” “very condescending” and
“controlling” tone, said, “Don’t you know the law?” (A621). The Referee further
found that Petitioner told the prosecuting attorney, “If this ticket was in my
courtroom, I’d dismiss it” (A621).
5
With respect to Charge II, the Referee found that Petitioner mailed eight
letters – five of them ex parte – to the Broome County Court concerning appeals of
his orders of restitution. In those letters, Petitioner made factual and legal
arguments, called the appeal “ludicrous,” made other biased and undignified
statements about the defense, and accused the County Court of “unilaterally
usurp[ing] the authority” of the town court (A633, 641). In addition, the Referee
found that Petitioner repeatedly failed to timely submit the court’s return despite
multiple directives to do so (A641).
E. The Commission’s Determination
The Commission found that “[b]y intervening in a case involving a traffic
ticket issued to his daughter and engaging in multiple efforts to influence the
disposition of the ticket” Petitioner violated the Rules (A19). In particular, the
Commission found that Petitioner attempted to have his daughter’s case transferred
to another judge and made “pointed references to his judicial status while arguing
with the prosecutor that the ticket should be dismissed” (A20). In sum, Petitioner’s
“insistence that his actions were appropriate,” and his conduct in his daughter’s
case “demonstrated an unacceptable degree of insensitivity to the demands of
judicial ethics,” quoting Matter of Conti, 70 NY2d 416, 419 (1987) (A20).
The Commission explicitly rejected Petitioner’s claim “that all of his actions
in connection with his daughter’s case were ethically permissible since he was
6
acting ‘as a parent.’” Citing Matter of Edwards, 67 NY2d 153, 155 (1986), the
Commission stated that “while the instinct to help a child is understandable, a
judge’s “‘paternal instincts’ do not justify a departure from the standards expected
of the judiciary” (A23).
With respect to the second charge, the Commission found that Petitioner’s
eight letters to the County Court judge handling the appeal of a restitution order
issued by Petitioner in People v Finch were “highly improper” (A24). The
Commission noted that five of the letters were ex parte. Further, the Commission
found that Petitioner “abandoned his role as a neutral arbiter and became an
advocate,” arguing that the appeal lacked merit (A24). In addition, Petitioner made
“biased, discourteous and undignified statements about the defendant and his
attorney” in some of the letters (A24-25).
The Commission went on to note:
There is a direct connection between [Petitioner’s] impermissible, ex parte
advocacy in County Court, which preceded his involvement in his
daughter’s case, and his actions in connection with his daughter’s ticket.
In Finch he continued to address the merits of the appeal in ex parte
letters even after the County Court admonished him for his “troubling”
comments. Thereafter, in his daughter’s case, he attempted to have the
ticket transferred through ex parte contacts with the court clerk and Judge
Weingartner, which raises concern about his failure to recognize a core
principle in our courts. If a judge initiates ex parte communications, the
public would have reason to doubt whether the judge would reject such
private discussions in his own court.
(A26).
7
The Commission added, “That is not how a judge should behave, and
[Petitioner] has shown numerous signs that he appears to have no understanding of
his role as a judge in avoiding unauthorized communications and advocacy” (A27).
In determining that removal was the appropriate sanction, the Commission
observed, inter alia, that “[c]ompounding [Petitioner’s] misconduct … [was] his
insistence throughout the Commission’s proceedings that all of his activities in
connection with his daughter’s case were permissible” (A27-28).
Taken together, his multiple attempts to have his daughter’s ticket
dismissed, his impermissible ex parte advocacy in Finch and his insistence that he
has done nothing wrong demonstrate that Petitioner is not fit for judicial office
(A28-29).4
4 Two Commissioners wrote separate concurring opinions. Commissioner Stoloff noted that in
light of this Court’s opinion in People v Smith, 27 NY3d 643 (2016), it appears that the appeal in
People v Finch was not properly perfected and should have been dismissed. He noted, however,
that this legal argument should have been made by the parties to the litigation and agreed that
Petitioner's conduct warranted removal (A31-35).
Commissioner Yeboah observed that Petitioner was disadvantaged by his inability to afford
counsel and that if suspension without pay had been an available sanction, she might have
considered it in this case (A36-38). She concurred in the determination that Petitioner be
removed from judicial office (A29).
8
THE FACTS
Charge I: Petitioner lent the prestige of judicial office to advance the private
interests of his daughter, attempted to influence the disposition of
her traffic ticket, and was rude and impatient toward the
prosecutor.
Petitioner lent the prestige of his judicial office to advance his daughter’s
private interests in connection with a VTL charge brought in People v Julie Ayres,
attempted to influence the disposition of her traffic ticket, and was rude and
impatient toward the prosecutor.
A. Petitioner’s 30-year-old daughter, Julie Ayres, received a traffic
ticket for violating section 1225-d of the VTL – Operating a
Motor Vehicle While Using a Portable Electronic Device.
On December 30, 2014, Trooper Matthew Pokigo was parked at the Del
Motel in Kirkwood, New York, elevated approximately 15 to 20 feet above Court
Street (A143-44). From his elevated position, Trooper Pokigo was able to see
inside the vehicles traveling on the street below him (A144). That afternoon,
Trooper Pokigo observed a female driver traveling northbound on Court Street
holding a cellphone in her right hand near her lap and the bottom right hand side of
the steering wheel (A144). The driver’s right thumb was on the face of her
cellphone and her left hand was on the steering wheel (A144). The driver’s head
was positioned down and towards her cellphone; she was not looking out towards
the road (A145).
9
Trooper Pokigo pulled the vehicle over and asked the driver for her license
and registration, which identified her as Julie Ayres (A145). Trooper Pokigo told
Ms. Ayres why he had stopped her and asked what she was doing with her
cellphone (A145). Ms. Ayres responded that she was going to “turn on music for
them,” referring to two small children in the backseat of her vehicle (A145).
Trooper Pokigo explained to Ms. Ayres that, in addition to talking and texting,
there was a general prohibition against using a cellphone while driving (A146). He
then walked back to his vehicle and drafted a Uniform Traffic Ticket for violating
VTL § 1225-d (A146;A356, Ex 1;A358, Ex 3). After Trooper Pokigo gave Ms.
Ayres a copy of the traffic ticket, she told him that she was “Judge Ayres’
daughter” (A147, 153). Trooper Pokigo responded by informing Ms. Ayres that the
ticket had been issued and she would have to go to court to dispose of it (A147).
Sometime later, Ms. Ayres showed Petitioner the traffic ticket (A239),
which was made returnable in the Kirkwood Town Court (A356, Ex 1). Ms. Ayres
told her father that the cellphone was turned off and that she was passing the
device to her preschool-aged son who knew her four-digit passcode and wanted to
play games (A329-30). Petitioner advised his daughter to plead not-guilty and to
speak to the ADA (A330). On or about January 7, 2015, Ms. Ayres sent a not-
guilty plea by mail to the Kirkwood Town Court (A357, Ex 2). The following
week, after receiving Ms. Ayres’ not-guilty plea by mail, the presiding judge,
10
Judge Ward E. Coe, sent her a notice of a pre-trial conference scheduled for
February 18, 2015 at 10:00 AM (A357, Ex 2;A360, Ex 4).
B. Petitioner went to the Kirkwood Town Court and asked a clerk to
transfer the ticket from Judge Coe’s docket to Judge
Weingartner’s docket.
Prior to his daughter’s pre-trial conference, Petitioner went to the Kirkwood
Town Court and spoke to Judge Coe’s court clerk, Carrie Aurelio (A156, 161-62,
239-40). The office is secured by a locked door and individuals cannot walk in
without being admitted by court staff (A162). Ms. Aurelio recognized Petitioner as
“the judge in Conklin” and let him into the office (A156, 162, 169-70). Once
inside, Petitioner told Ms. Aurelio that his daughter had received a ticket and asked
Ms. Aurelio to transfer the ticket from the docket of Judge Coe to that of Judge
Weingartner (A156, 159-61, 239-40). Ms. Aurelio told Petitioner that she would
keep an eye out for the ticket because she felt “obligated” to go along with
Petitioner’s request and did not feel comfortable telling a judge “that’s not the way
things are done” (A157). She did not transfer Ms. Ayres’ ticket (A157).
C. Petitioner telephoned Judge Weingartner, asked him to handle his
daughter’s traffic ticket, and attempted to provide facts about his
daughter’s case.
Before his daughter’s pre-trial conference, Petitioner called Kirkwood Town
Justice Benjamin Weingartner concerning the traffic ticket (A173, 191). A
secretary told Judge Weingartner that “Judge Ayres” was on the phone (A173-74).
11
Petitioner began the call with small talk and then mentioned that his daughter had
received a traffic ticket and asked how tickets were handled in Kirkwood (A173).
Judge Weingartner explained that Judge Coe handled tickets that were returnable at
10:00 AM and he handled tickets that were returnable at 2:00 PM (A173). Julie
Ayres’ ticket was returnable at 10:00 AM (A173;A356, Ex 1;A357, Ex 2).
Petitioner then asked Judge Weingartner if he would “handle the ticket”
because “at one time Judge Coe’s wife worked for [Petitioner] and he had to let her
go” (A173-74, 177).5 Judge Weingartner told Petitioner that when a ticket is
written by a police officer it is not typically moved and that he would not handle
Ms. Ayres’ ticket (A173-74). During his 34 years on the bench, Judge Weingartner
had received requests from defendants to move a ticket, but he had never received
such a request from another judge (A172-73, 180).
Petitioner then told Judge Weingartner that his daughter had received a
cellphone ticket that he did not believe she deserved (A174, 177). Petitioner began
to talk about the facts of the case, but Judge Weingartner cut him off (A174, 178).
He advised Petitioner to have his daughter attend her arraignment, plead not guilty
5 Judge Coe’s wife, Diane Coe, worked at the Conklin Town Court for the first nine months of
Petitioner’s tenure (A183, 193). Petitioner dismissed Mrs. Coe and she subsequently filed a
lawsuit against him and the Town Supervisor (A183, 193). The lawsuit was ultimately dismissed
(A184).
12
and talk to the prosecutor (A174). Petitioner asked Judge Weingartner for the name
of the prosecutor, which Judge Weingartner provided (A174).
D. Petitioner’s daughter attended a pre-trial conference with the
prosecuting attorney and was offered a plea of guilty with a
minimum fine and surcharge.
On February 18, 2015, Ms. Ayres attended a pre-trial conference at the
Kirkwood Town Court (A209-10;A358, Ex 3). During the conference, Ms. Ayres,
who was pro se, discussed the ticket with Broome County Assistant District
Attorney (“ADA”) Laura Parker (A210). Ms. Ayres provided the prosecutor with
cellphone records that showed her text, data and talk usage (A210;A362, Ex 6).
Ms. Ayres told ADA Parker that she was simply holding her cellphone and passing
it to her son who was seated in the backseat of her vehicle (A210). She also told
ADA Parker that her dad was a “judge across the river” (A210). ADA Parker did
not know who Ms. Ayres’ father was or what Ms. Ayres meant by this statement
(A210).
The Broome County District Attorney’s office had a directive, published in
their manual, that cellphone tickets should not be reduced or dismissed because
they were considered very serious charges (A212, 222). Based on Ms. Ayres’
admission that she had her cellphone in her hand while driving, and the office
directive, ADA Parker offered Ms. Ayres a plea to the charge, with a minimum
fine and the mandatory surcharge (A211-12;A361, Ex 5). Ms. Ayres did not accept
13
the offer, and Judge Coe adjourned the case to March 18, 2015 (A212;A369, Ex
7;A370, Ex 8;A377, Ex 15).
E. Petitioner attended a pre-trial conference with his adult daughter,
advocated to have the charge dismissed, and made impatient,
discourteous and undignified remarks to the prosecuting attorney.
On March 18, 2015, the date of the second pre-trial conference in Ms.
Ayres’ case (A370, Ex 8), Petitioner arrived at the Kirkwood Town Court before
his daughter (A201). He was seated in the courtroom gallery when Judge Coe
asked him to approach the bench (A185-86, 200-01). Judge Coe asked Petitioner
why he was in court, and Petitioner said that he planned to watch his grandchildren
while his daughter conferenced her case (A158, 185-86, 200-01). When Petitioner
asked Judge Coe for the name of the prosecuting attorney, Judge Coe gave him
ADA Parker’s name and said that she was new but working out well (A186).
Petitioner’s grandchildren did not come to court, but he nevertheless stayed (A158,
187, 332).
As was her practice on “Kirkwood ADA day,” ADA Parker went to her
sign-in sheet and called the names of three defendants, including Ms. Ayres, to
come into her office for their conferences (A213). ADA Parker observed a man
accompany Ms. Ayres into the conference room and, based on Ms. Ayres’ prior
statement that her father was a judge, assumed that she had brought her father with
her to the conference (A213, 229).
14
After the two other defendants left, ADA Parker began reviewing Ms.
Ayres’ cellphone records (A213-14;A362, Ex 6). When she asked Ms. Ayres what
time she received the ticket, Petitioner replied, using an authoritative and
condescending tone, “Well, don’t you have a copy of the ticket?” (A214). Ms.
Parker explained that she meets with hundreds of traffic defendants each week and
does not retain a copy of each defendant’s ticket (A214). She left the conference to
get a copy of the ticket from the court’s file and then returned to the conference
room (A214-15).
As ADA Parker looked over the records, she explained that the statute
regulating cellphone use contained a rebuttable presumption (A215). Using a “very
condescending” tone of voice, Petitioner told Ms. Parker that she had to prove the
case beyond a reasonable doubt (A215). ADA Parker stated that while she had to
prove her case beyond a reasonable doubt at trial, they were presently just
conferencing the case (A216).
As the prosecutor continued looking over the records, Petitioner threw a
stapled packet of paper on the table in her direction, “slamm[ing] it down,” and in
a “very authoritative,” “very condescending” and “controlling” tone, said, “Don’t
you know the law?” (A216, 231, 333). Ms. Parker was taken aback by Petitioner’s
behavior (A216). She felt that she was being placed “under extreme pressure” and
did not know how to respond (A216). She told Petitioner that she did know the law
15
and explained that if a person is driving with a cellphone in her hand there is
probable cause to write a ticket (A216).
Ms. Ayres, who had not said anything up to this point, then told ADA
Parker, “My father’s a judge” (A217, 232-33). That is the only thing Ms. Ayres
said during her conference (A217).
Petitioner quickly confirmed his daughter’s statement, telling ADA Parker,
“If this ticket was in my courtroom, I’d dismiss it” (A217, 232-33, 241-42, 338).
Petitioner added that he had spoken to “several other judges” and that they “all
agreed that this should be dismissed” (A241, 243).
ADA Parker said she wanted to speak with her supervisor; she was feeling
“extreme pressure” to dismiss Ms. Ayres’ ticket (A215, 217, 236). Before leaving
the room, she asked Petitioner if he represented his daughter, and he responded,
“Not yet” (A217).
Ms. Parker left the room and spoke to Judge Coe and Carrie Aurelio who
were at the bench (A159, 186). Judge Coe, who thought Petitioner had left the
courtroom to watch his grandchildren, saw ADA Parker come out of the
conference room “very upset and teary-eyed” (A186). She told Judge Coe and Ms.
Aurelio that Petitioner was in the conference room and she was not prepared to
conference the case with him (A159, 186). She also said that Petitioner threw
papers down, questioned whether she knew the law, and said that the ticket should
16
be dismissed (A159). ADA Parker was “on the brink of tears” and upset because
Petitioner had conveyed that he thought she was a “young little girl who didn’t
know anything,” and that he knew better (A217-18, 230). Judge Coe suggested that
ADA Parker call her supervisor, Carole Cassidy; ADA Parker went into the
judge’s chambers to make the call (A187, 218, 226, 236).
ADA Parker had previously encountered spouses and parents who
accompanied a defendant into the pre-trial conference, but Petitioner’s conduct was
“outside the normal purview of a father being with a child” (A213, 228, 235).
Typically, the prosecutor speaks directly to the defendant unless he or she is a
minor (A228). She had never dealt with a defendant’s parent when the defendant
was a 30-year-old adult (A228, 236). Nor had she ever experienced a defendant’s
parent throw papers at her, speak to her in a controlling and authoritative tone, and
pressure her to dismiss the ticket (A228, 231).
On the phone, ADA Parker told her supervisor what had happened in the
conference room (A218). They reviewed Ms. Ayres’ cellphone records and ADA
Cassidy directed Ms. Parker to dismiss the charge (A218). ADA Parker returned to
the conference room and told Petitioner and his daughter that the ticket would be
dismissed (A219;A371, Ex 9). Petitioner’s demeanor changed into that of a
“gracious gentleman” (A219). He thanked ADA Parker for dismissing the ticket
and became very polite (A219-20). ADA Parker indicated that she was going to
17
put her dismissal on the record, and Ms. Ayres left the conference room (A220).
Petitioner then turned to ADA Parker and told her that she should not conference
tickets with multiple defendants because it “breached confidentiality” (A220, 243,
313-14, 332). Ms. Parker had not asked Petitioner for input on how she
conferenced cases and was shocked by his comment (A220, 244).
On the record, Ms. Parker made a motion to dismiss, which Judge Coe did
not accept (A221). Judge Coe was “totally surprised” by the motion and told the
ADA that he was going to adjourn the case and conduct some research
(A187;A372, Ex 10;A377, Ex 15). He suspected that Petitioner’s presence at the
pre-trial conference had “influenced the outcome” of Ms. Ayres’ case (A205).
Judge Coe adjourned the matter until April 1, 2015, and Petitioner asked for “a
different date” (A372, Ex 10;A373, Ex 11;A377, Ex 15). At Petitioner’s
suggestion, Ms. Ayres asked Judge Coe if he would recuse himself “because of
history” (A337;A372, Ex 10;A377, Ex 15). Judge Coe initially said that he would
recuse himself because, at the time, he thought it might be the best way to proceed
(A189;A372, Ex 10;A377, Ex 15).
After he went off the record, Judge Coe asked Petitioner to meet with him
privately (A189, 205). He felt that he had been put “in a real bad spot” by
Petitioner’s presence in his court (A205). Judge Coe asked Petitioner why he was
in court and said that as a sitting judge he should not have come (A189). Judge Coe
18
told Petitioner he was “way out of line” to have attended his daughter’s pre-trial
conference (A189).
After conducting some research, which included contacting the Judicial
Resource Center, Judge Coe concluded that it was not necessary to recuse himself
and continued to handle the case (A188-89). He maintained that there was no
“history” between himself and Petitioner, and always felt that he could “serve
justice” in the case (A189, 206).
At a later date, Judge Coe contacted ADA Parker and asked her to put her
motion to dismiss in writing prior to Ms. Ayres’ next court appearance (A189-90,
221; A375, Ex 13). After consulting with Trooper Pokigo and ADA Cassidy, ADA
Parker formally requested that the case be dismissed (A148, 222; A377, Ex 15).
Ms. Ayres appeared in Kirkwood Town Court on April 28, 2015, and Judge Coe
dismissed the case pursuant to ADA Parker’s motion (A358, Ex 3; A374, Ex 12;
A376, Ex 14;A377, Ex 15).
F. Judges Coe and Weingartner filed a complaint with the
Commission concerning Petitioner’s improper interference in
People v Julie Ayres.
After the pre-trial conferences were completed on March 18th, Judge Coe
met with his co-judge to discuss what had occurred that day (A191). Judge
Weingartner told Judge Coe that Petitioner had called him about his daughter’s
ticket and asked him to handle the case (A175, 191, 199). He also said that he
19
thought Judge Coe was obligated to report Petitioner to the Commission and
suggested he confer with Gregory Gates, an attorney with the 6th Judicial District
(A175).6 That same day, Ms. Aurelio told Judge Coe that Petitioner had earlier
come to the court and asked her to transfer his daughter’s ticket to Judge
Weingartner (A191, 205).
Based on the information he received from Judge Weingartner and Ms.
Aurelio, Judge Coe contacted the Advisory Committee on Judicial Ethics and
inquired about his obligation to report Petitioner’s conduct (A191-92). On May 26,
2015, Judge Coe received a response from the Advisory Committee stating that the
allegations described in his inquiry implicated Petitioner’s “fitness to continue in
office” and that he “must report” Petitioner to the Commission. (A191-92;A385,
Ex 16). After receiving the opinion, Judge Coe wrote a letter to the Commission
containing details about Petitioner’s multiple interferences in his daughter’s case
(A192).
G. Petitioner’s testimony regarding Charge I
In his direct testimony, Petitioner maintained that he tries to be a “poster
boy” for “following the rules and regulations” (A307, 338). He asserted that he
appeared in Kirkwood Town Court as a parent, not as a judge (A308, 339) and
6 Mr. Gates’ correct title is District Executive for the 6th Judicial District. See
https://www.nycourts.gov/courts/6jd/index.shtml
20
never asked for any special favors (A308, 312, 339). He did not believe his
request to Ms. Aurelio to transfer his daughter’s ticket, or his request that Judge
Weingartner handle the ticket, were inappropriate (A331).
According to Petitioner, he went to court to watch his grandchildren while
his daughter attended her pre-trial conference, but there was a change of plans and
his grandchildren did not attend (A308, 332). He maintained that ADA Parker
invited him into the pre-trial conference room saying, “Are you the father?” and
then “you come back, too” (A312). In his sworn testimony during the
Commission’s investigation, however, Petitioner admitted that he went to court
because his daughter’s ticket remained before Judge Coe and he conceded that if
the ticket had been switched to Judge Weingartner, he would not have gone to the
court (A241).
Petitioner corroborated ADA Parker’s suspicion that he viewed her as a
“young, inexperienced girl” (A313). He testified that if she was “easily
intimidated” it was “not [his] problem” (A313, 333) and that if ADA Parker is so
“oversensitive” she may “want to take another job” (A313). He admitted that he
became “frustrated” during the conference because he felt that ADA Parker was
“inexperienced and not knowledgeable” about the law (A313).
During the Commission’s investigation, Petitioner admitted that he told
ADA Parker that if the ticket had been in his courtroom, he would have dismissed
21
it (A241-42). He also admitted that he told her that he had spoken to “several other
judges” who supposedly had agreed the ticket should be dismissed (A243).
Charge II: In connection with the appeals of two orders in People v Finch,
Petitioner mailed ex parte letters to the County Court in which he
advanced legal and factual arguments in support of his orders,
and made biased, discourteous and undignified statements about
the defendant and his counsel. Petitioner failed to submit the
court’s return in a timely manner.
From on or about December 20, 2011, to on or about December 12, 2014, in
connection with the appeals of Petitioner’s orders of restitution in People v Stephen
B. Finch, Petitioner mailed eight letters – five of which were ex parte – to the
Broome County Court, where the appeals were pending. Petitioner advanced legal
and factual arguments in support of his orders and made biased, discourteous and
undignified statements about the defendant and his counsel. Despite multiple
orders and directives from the County Court, Petitioner repeatedly failed to submit
the court’s return in a timely manner in People v Stephen B. Finch.
A. Stephen Finch was charged with three criminal offenses, was
sentenced by Petitioner, and appealed Petitioner’s order of
restitution.
On June 28, 2009, Stephen Finch was charged with reckless endangerment
in the second degree, in violation of section 120.20 of the Penal Law; two counts
of petit larceny, in violation of section 155.25 of the Penal Law; and criminal
tampering in the third degree, in violation of section 145.14 of the Penal Law
(A275;A387, Ex 17).
22
On October 13, 2009, Judge Bowman assigned Craig Fritzsch to represent
the defendant because of a conflict of interest within the office of the public
defender (A316; A398, Ex 19; A453, Ex 46). On February 1, 2010, County Court
Judge Joseph F. Cawley issued an order of removal, transferring the case from the
Town of Windsor to the Town of Conklin (A275; A399, Ex 20).
The defendant appeared before Petitioner with his attorney and pled guilty to
petit larceny and disorderly conduct on May 27, 2010 (A276;A400, Ex 21;A401,
Ex 22). Petitioner sentenced Mr. Finch to a one-year conditional discharge, a six-
month order of protection in favor of the complaining witness, and restitution to be
determined by a future memorandum (A401, Ex 22;A402, Ex 23). On November
5, 2010, Petitioner held a restitution hearing and thereafter issued a memorandum
ordering Mr. Finch to pay the complaining witness $2,949.42 (A403, Ex 24).
On November 15, 2010, Mr. Fritzsch filed a notice of appeal from the
restitution order and on December 21, 2010, he filed an affirmation of errors with
the Broome County Court (A415, Ex 29; A421, Ex 31). Petitioner received the
notice of appeal on November 16, 2010, and the affirmation of errors on January 3,
2011 (A404, Ex 25;A406, Ex 26). In his affirmation, Mr. Fritzsch questioned
whether the amount of restitution was proper when the complaining witness did
not testify and the vehicle at issue had more than 130,000 miles (A406, Ex 26).
23
B. Broome County Court Judge Martin E. Smith issued an order
directing Petitioner to file the court’s return by November 8,
2011, and Petitioner failed to comply.
On October 6, 2011, Mr. Fritzsch filed a motion in Broome County Court
seeking an order directing Petitioner to file a return (A416, Ex 30). In his motion,
Mr. Fritzsch noted that without the return from Petitioner's court, the County Court
was “unable to review and render a decision on the appeal,” which had been
pending since the previous year (A418, Ex 30, p 3). On October 25, 2011, Judge
Smith issued an order directing Petitioner to “file a return in the above matter by
November 8, 2011” (A421, Ex 31).
In a letter dated December 20, 2011, Petitioner wrote to Judge Smith about
his order (A245;A422, Ex 32). Petitioner copied Mr. Fritzsch on his letter but did
not copy the prosecuting attorney (A245-46;A422, Ex 32). Petitioner claimed that
he was unaware of Judge Smith’s order until November 4, 2011 – four days prior
to when the return was due (A422, Ex 32). He also claimed that he contacted Mr.
Fritzsch to obtain clarification on “what he was requesting” (A422, Ex 32), but had
not received a response. He requested that the “appeal be dismissed as it has not
been perfected as required” (A422, Ex 32). Petitioner also argued that the appeal
did not excuse the defendant from paying restitution, notwithstanding that Mr.
Fritzsch had obtained a stay of execution of sentence (A411, Ex 27; A414, Ex
28;A422, Ex 32).
24
Following receipt of Petitioner’s letter, Mr. Fritzsch filed another affirmation
requesting that Judge Smith order Petitioner to file a return and stay execution of
the sentence (A423, Ex 33). On February 1, 2012, Judge Smith issued an order
granting his request (A424, Ex 34). He also directed Mr. Fritzsch to file an
affidavit of errors directly with Petitioner (A424, Ex 34). Judge Smith advised
Petitioner to file his return within thirty days of receipt of the affidavit of errors
(A424, Ex 34). Mr. Fritzsch complied with Judge Smith’s directive and Petitioner
received the affirmation of errors on February 1, 2012 (A426, Ex 35).
C. Petitioner submitted a response to the affirmation of errors in
which he argued that the appeal lacked merit and should be
dismissed.
On February 14, 2012, Petitioner sent the County Court an admittedly
“snarky” response to Mr. Fritzsch’s affirmation of errors (A246-48;A429, Ex 36).
Petitioner did not copy Mr. Fritzsch or the prosecuting attorney on his letter
(A246-47;A429, Ex 36).
In his response, Petitioner advanced a number of arguments in support of his
contention that the appeal was “without merit” and should “be denied” (A433, Ex
36, p 5), including that:
Mr. Fritzsch’s “contention” that restitution was limited to the
disorderly conduct charge was “baseless and inconsistent” with the
plea agreement (A430, Ex 36, p 2),
25
Fritzsch “knew, or should have known” that restitution included
damages to the complaining witness’ vehicle (A430, Ex 36, p 2),
the defense did not provide “any evidence” that the condition of the
complaining witness’ vehicle was different on the day of inspection
versus the date it was allegedly damaged (A431, Ex 36, p 3)
(emphasis in original),
the complaining witness’ failure to testify was not “an issue of
sufficient importance” (A432, Ex 36, p 4),
it was “intuitively obvious to the casual observer” that the defense
was attempting to place “inappropriate restrictions” on the collection
of restitution (A432, Ex 36, p 4),
any efforts by the defense to restrict restitution were “irresponsible,”
“unwarranted,” and “unjustified” (A433, Ex 36, p 5), and
Petitioner had “acted appropriately and within the parameters of the
law” (A433, Ex 36, p 5).
D. County Court remanded the matter to Petitioner for a second
hearing.
On July 9, 2012, Judge Smith issued a Decision and Order in the Finch
matter, finding “merit” in Mr. Fritzsch’s argument that the record did not support
Petitioner’s restitution order (A434, Ex 37, p 1). He wrote that “only the victim”
could testify concerning certain factors that were necessary to determine the
appropriate amount of restitution (A435, Ex 37, p 2). Judge Smith modified the
judgment and remitted the case to Petitioner for further proceedings (A435, Ex 37,
p 2).
26
Petitioner held a second restitution hearing on November 8, 2012 (A436, Ex
38). By memorandum dated November 29, 2012, Petitioner ordered the defendant
to pay $1,700 in restitution (A436, Ex 38). He also issued a second order of
protection in favor of the complaining witness (A440, Ex 39). On December 19,
2012, Mr. Fritzsch filed a notice of appeal and an affirmation of errors in Broome
County Court and with Petitioner (A441, Ex 40;A462, Ex 50).
E. Petitioner sent a letter to Broome County Court arguing that
defense counsel lacked standing to pursue the appeal and that the
appeal should be “summarily dismissed.”
On December 21, 2012, Petitioner sent an unsolicited letter to the Broome
County Court after receiving “yet another” affirmation of errors from Mr. Fritzsch
(A249-50;A446, Ex 41). This time, Petitioner sent copies of his letter to Mr.
Fritzsch, the prosecuting attorney, and the public defender (A446, Ex 41). In the
letter, Petitioner recounted that Mr. Fritzsch was assigned to handle Mr. Finch’s
case due to a conflict of interest within the public defender’s office, and argued
that the matter should have reverted back to the public defender to determine
whether the conflict still existed (A446, Ex 41). Until the public defender made
that assessment, Petitioner argued, Mr. Fritzsch “no longer has any standing in this
matter and therefore any actions taken by [him] are invalid” (A250;A446, Ex 41).
Petitioner concluded, “it is the opinion of this Court that Mr. Fritzsch’s actions are
27
unsustainable due to his lack of standing and this appeal should be summarily
dismissed” (A446, Ex 41).
In response, Mr. Fritzsch wrote to Judge Smith and asked to be formally
appointed to represent Mr. Finch (A447, Ex 42). Mr. Fritzsch also requested
another stay (A447, Ex 42). Judge Smith issued an order of assignment on January
7, 2013, and an additional stay on February 6, 2013 (A448, Ex 43;A451, Ex
45;A457, Ex 47).
F. Petitioner sent an unsolicited letter to Judge Smith in which he
expressed extreme “disappointment” with Judge Smith’s decision
to appoint Mr. Fritzsch and made a series of hostile and
demeaning remarks concerning the defendant and his counsel.
On January 18, 2013, Petitioner sent Judge Smith an unsolicited letter
expressing disappointment with his decision to appoint Mr. Fritzsch to represent
Mr. Finch (A251-52;A449, Ex 44). Copies of this letter were sent to the prosecutor,
Mr. Fritzsch, and the public defender (A449, Ex 44). Petitioner wrote that Judge
Smith had “unilaterally usurp[ed] the authority” of the Conklin Town Court and
“undermin[ed] our credibility” (A449, Ex 44, p 1). Petitioner then argued that the
case should have been reassigned to the public defender’s office for “numerous”
reasons including to determine whether “this is a legitimate reason for an appeal or
possibility [sic] an effort for any [sic] attorney to pad their bill at the expense of the
Broome County taxpayers” (A449, Ex 44, p 1). Petitioner wrote that he did not
object to a “legitimate appeal” of his decisions but argued that the “proper process
28
on how these appeals are handled should have been protected” (A322;A449, Ex 44,
p 1) (emphasis in original).
In what he concedes was a “snarky” tone, Petitioner told Judge Smith that
the Conklin Town Court did not “claim the power to heal the sick, walk on water,
or raise the dead and while we do ask for Divine intervention in guiding our
decisions, it is rarely granted” (A251-52, 322;A449, Ex 44, p 1). Petitioner then:
repeated his argument that Mr. Fritzsch lacked “standing” and that
“any actions taken by Mr. Fritzsch prior to [his appointment on
January 7, 2013] should be “dismissed” (A449, Ex 44, p 1),
chided Judge Smith that he had “no appeal to consider” until Mr.
Fritzsch refiled the appeal (A449, Ex 44, p 1),
asserted that Mr. Fritzsch should pursue the appeal pro bono, or
that the defendant should pay, because the public defender “cannot
be expected to be responsible for this charge” (A449, Ex 44, p 1),
attacked Mr. Fritzsch’s legal arguments as “ludicrous at best,”
“totally beyond any rational thought process,” and defying logic
(A252;A450, Ex 44, p 2),
mockingly questioned whether Judge Smith wanted to establish a
precedent of rewarding a defendant’s refusal to pay restitution
(A450, Ex 44, p 2),
stated that the defendant had “issues regarding self-control” and
presented a “clear and present danger” to the complaining witness
(A450, Ex 44, p 2), and
29
concluded by requesting that the “appeal be denied” (A450, Ex 44,
p 2).
When Mr. Fritzsch read the letter, he thought Petitioner was taking the
appeal personally and trying to be “an advocate when he’s the judge” (A276-77).
In his 30 years of practicing law, he had never encountered a town justice who sent
“letters of advocacy” to a county court judge (A281). The defendant was shocked
by Petitioner’s letter and interpreted it as an attempt to deny him assigned counsel
(A291, 294, 296). He believed Petitioner’s “mind was made up long before
anything ever took place” (A298).
G. Judge Smith wrote an “instructive” letter to Petitioner concerning
his misunderstanding of the appellate process and his troubling
comments about the merits of the defendant’s appeal.
On February 6, 2013, Judge Smith wrote Petitioner a four-page, single-
spaced letter advising Petitioner that “it appears you may misunderstand certain
areas of the appellate process, and the respective roles of this Court, your court and
counsel within that process” (A453, Ex 46, p 1). In his detailed letter, Judge
Smith:
described Petitioner’s argument that Mr. Fritzsch had no standing to
appeal the case as “misplaced” (A453, Ex 46, p 1),
explained that “in most instances” attorneys follow “the very practice
employed by Mr. Fritzsch in this case” (A453-54, Ex 46, pp 1-2),
30
informed Petitioner that there was no “particular procedure” in place
to assign counsel in cases where the public defender did not represent
the defendant at trial (A454, Ex 46, p 2),
noted that the public defender was not responsible for charges
incurred by assigned counsel (A454, Ex 46, p 2), and
advised Petitioner that County Court had “inherent authority to
appoint an attorney to an indigent defendant” and did not
“‘unilaterally usurp’ the Town of Conklin’s authority to appoint Mr.
Fritzsch” (A454, Ex 46, p 2).
Judge Smith found Petitioner’s comments concerning the appeal’s merit to
be “the most troubling part of your letter” (A454, Ex 46, p 2). He wrote, “Simply
put, the Town of Conklin Court may not decide whether any appeal from its orders
and judgments is legitimate” (A455, Ex 46, p 3).
Judge Smith instructed Petitioner that the return must be filed within ten
days of receiving the affidavit of errors (A456, Ex 46, p 4).7 Judge Smith cautioned
Petitioner that a failure to timely file the return could cause the County Court to
deem admitted the allegations contained in the affidavit of errors (A456, Ex 46, p
4).
In conclusion, Judge Smith wrote that he did not expect Petitioner to “heal
the sick, walk on water, or raise the dead,” but he did expect Petitioner to abide by
the law and the discretionary authority of the Broome County Court (A456, Ex 46,
7 Judge Smith referred Petitioner to section 460.10 (3) (d) of the Criminal Procedure Law,
which governs the timing and contents of the court’s return (A456, Ex 46, p 4).
31
p 4). To the extent Petitioner was “unaware of the proper process, or had an
incomplete understanding of the same,” Judge Smith hoped that he found the letter
to be “instructive” (A456, Ex 46, p 4).
H. Petitioner failed to comply with Judge Smith’s order directing
him to file the court’s return by June 21, 2013, and instead
resubmitted his offensive January 18th letter.
On April 22, 2013, Mr. Fritzsch filed a motion seeking an order that
Petitioner be compelled to file the return that he was “obligated to prepare” (A460,
Ex 49). In his supporting affirmation, Mr. Fritzsch stated that the appeal had been
pending for some time, no return had been filed by Petitioner and without the
court’s return Judge Smith could not render a decision (A461, Ex 49, p 2).
On May 30, 2013, Judge Smith issued an order directing Petitioner to “file a
return in the above matter by June 21, 2013” (A462, Ex 50). The May 2013 order
specifically advised Petitioner that the return must “set forth or summarize
evidence, facts, occurrences in or adduced at the proceedings resulting in the
judgment, sentence or order, which constitute the factual foundation for the
contentions alleged in the affidavit of errors (CPL §460.10[3][d])” (A462, Ex 50).
On June 3, 2013, Petitioner sent the Broome County Court his “response” to
the appeal, which was a copy of the second page of his January 18th letter (A255-
56;A463, Ex 51). In his cover letter, Petitioner wrote that his “position has not
changed” since the date the letter was written (A463, Ex 51). The second page of
32
his January 18th letter – the same letter that Judge Smith had found “most
troubling” – contained Petitioner’s assessments that Mr. Fritzsch’s arguments were
“ludicrous at best,” “totally beyond any rational thought process,” and “[defied]
logic” (A252;A464, Ex 51, p 2). The letter included Petitioner’s opinion that the
defendant had “issues regarding self-control” and presented “a clear … danger to
the victim” (A464, Ex 51, p 2). Petitioner did not send a copy of his response to
Mr. Fritzsch or the prosecuting attorney (A256;A463, Ex 51).
On July 30, 2013, Mr. Fritzsch sent a fax to Judge Smith notifying him that
“no return has been received by me from the lower court in this matter” (A466, Ex
52, p 2). On October 3, 2013, at the request of Judge Smith’s law clerk, Stephen
Ferri, Petitioner re-sent his June 2013 letter and copied Mr. Fritzsch and the
prosecuting attorney (A256;A467, Ex 53). Petitioner commented that the case had
been “dragging on for some time” and asked for the appeal to be expedited (A467,
Ex 53).
I. Petitioner continued to write letters to County Court arguing that
the appeal was meritless, defense counsel’s arguments were
“ludicrous,” and the appeal should be dismissed.
Petitioner continued to respond to Mr. Fritzsch’s efforts to prevail on appeal,
writing letters to County Court arguing that the appeal was meritless, defense
counsel’s arguments were “ludicrous,” and the appeal should be dismissed.
33
1. Mr. Fritzsch’s memorandum on appeal
A month after he received Petitioner’s October 3, 2013 letter, Mr. Fritzsch
submitted a memorandum arguing that the amount of restitution ordered was not
proper and the judgment should be vacated (A470, Ex 54). In his memorandum,
Mr. Fritzsch wrote that Petitioner had “attacked” him for “simply doing the job
that defense counsel is required to do” (A473, Ex 54, p 4). Mr. Fritzsch wrote that
Petitioner’s “return” contained “personal attacks and name calling,” expressed
“venom for the defendant and his counsel,” and amounted to a “near taunting” of
the Broome County Court (A473, Ex 54, p 4). He wrote that Petitioner’s return
was “much more in the style of an advocate than of [an] unbiased impartial finder
of fact” (A473, Ex 54, p 4).
In response, Petitioner sent Judge Smith an undated letter in which he wrote
that he “hesitated” in responding to Mr. Fritzsch because “his case continues not to
have any merit” (A256-57;A475, Ex 55). Petitioner did not send his letter to the
prosecuting attorney (A257).
Petitioner told Judge Smith that the “main question” before him was whether
“substantial justice” had been performed (A475, Ex 55). He opined that Mr.
Fritzsch’s claim of bias was an attempt to deflect attention from “the fact that there
is simply no merit to his appeal” (A475, Ex 55). In closing, Petitioner commented
34
that the appeal had been “ongoing for a period of time” and asked Judge Smith to
“confirm” that Mr. Finch’s appeal was “without merit” (A475, Ex 55).
On October 6, 2014, Judge Smith issued a Decision and Order finding that
the prosecutor had satisfied her burden of proving the complaining witness
suffered an out of pocket loss and that Petitioner properly awarded $1,700 in
restitution and remitted the matter back to Conklin Town Court for further
proceedings (A476, Ex 56). On October 14, 2014, the defendant signed a
restitution order agreeing to pay $1,700 plus a five percent surcharge in the amount
of $85 to the Broome County Probation Department (A478, Ex 57).
2. The motion to vacate
Following the October 14th court appearance, Mr. Finch found a CarFax
report that showed that the vehicle the complaining witness testified she had
“junked or scrapped” was still on the road (A299;A479, Ex 58). Based on this new
information, Mr. Fritzsch filed an order to show cause, requesting that the
restitution order be vacated (A479, Ex 58).
On December 12, 2014, Petitioner sent a letter to Judge Smith concerning
Mr. Fritzsch’s motion to vacate and what Petitioner termed the “continuing saga”
of the Finch case (A258;A492, Ex 59). Petitioner did not send a copy of the letter
to the prosecuting attorney (A327;A492, Ex 59).
35
Petitioner argued that Mr. Fritzsch’s motion should be denied and provided
seven arguments in support of his position (A492, Ex 59). He argued that the
CarFax report generated by Mr. Finch could not be given “much credence”
because the defendant “clearly” had a conflict of interest and was biased (A492, Ex
59, p 1). Petitioner told Judge Smith that it was “inherently obvious to the casual
observer that this motion is without merit and should be denied immediately”
(A493, Ex 59, p 2). He called Mr. Fritzsch’s motion “ludicrous” and stated that the
defendant “was in fact guilty” (A493, Ex 59, p 2). Petitioner concluded his letter
by seeking “an immediate denial of this action” (A493, Ex 59, p 2).
Thereafter, on January 29, 2015, the defendant paid restitution and a
surcharge in the amount of $1,785 fulfilling the terms of Petitioner’s restitution
order (A494, Ex 60). Mr. Fritzsch subsequently filed a third notice of appeal
(A495, Ex 61). On December 31, 2015, Judge Smith issued an order dismissing the
appeal as abandoned and Finch was formally concluded (A497, Ex 62).
J. Petitioner’s testimony concerning Charge II
Petitioner admitted that his letters were “advocating” his “position” that the
Finch appeal had absolutely “no merit,” was a “worthless waste of everybody’s
time,” and should have been dismissed (A247-48, 249-50, 257-58, 314, 321).
Although Petitioner is not an attorney, he thought it was appropriate to advocate,
36
multiple times, that Mr. Finch’s appeal should be dismissed (A246, 248-50, 254,
322, 327).
Petitioner readily and repeatedly stated that he was “biased against the
appeal,” but asserted that he held no bias against Mr. Finch (A249, 254, 256-59,
305, 318, 320-21, 327). However, Petitioner testified that he thought the defendant
had issues with self-control, was a danger to the complaining witness, avoided
paying restitution, abused the system by filing his appeal, and intimidated his
attorney (A248, 318-19, 327). Petitioner also thought that Mr. Finch, who is
employed as a logger, had dressed inappropriately in court (A290, 318). He
admitted that he had a negative opinion of Mr. Fritzsch, whom he alleged may
have filed the appeals to appease his client and to pad his bill (A321).
Petitioner acknowledged that Judge Smith found the content of, at least, his
January 18th letter to be both incorrect and inappropriate (A254-55). He also
recognized that Judge Smith’s letter to him was meant to be “instructive” (A282,
323). However, Petitioner did not read any of the cases or statutes cited by Judge
Smith and never contacted the Judicial Resource Center concerning Finch,
although he “called them a lot” concerning other matters (A255, 323-25). He
believed that the standard of review governing appeals was “substantial justice”
and did not know which, if any, statutes governed appeals and the contents of a
37
return (A247, 324). Following receipt of Judge Smith’s letter, Petitioner claimed
that he toned down his responses (A323).
In testimony during the Commission’s investigation, Petitioner admitted that
his letters were ex parte because he “did not send copies [to] all the parties [and] I
should have done that” (A258, 326). At the hearing, Petitioner testified that it was
Judge Smith’s responsibility to share his letters with “everybody” (A315, 325) and
that his letters were not ex parte because he assumed that Judge Smith would
“follow those same procedures that I would follow” and ensure that the proper
persons received copies of his letters (A315).
Petitioner wanted to ensure that the “proper process” was followed by the
defense, but conceded that he had not himself followed proper procedures in
handling the appeal (A315-16, 322).
ARGUMENT
POINT I
PETITIONER COMMITTED JUDICIAL MISCONDUCT WHEN HE
REPEATEDLY INTERVENED IN ANOTHER COURT AND WITH THE
PROSECUTOR IN AN EFFORT TO HAVE HIS DAUGHTER’S TRAFFIC
TICKET DISMISSED.
A judge shall not allow a familial relationship to influence his or her judicial
conduct and may not lend the prestige of judicial office to advance the private
interests of another. See Rules §100.2 (B) (C). “[I]ntervention by a judge in
38
proceedings involving family members pending in another court” is “serious
misconduct.” Matter of LaBombard, 11 NY3d 294, 297 (2008).
As the Commission found (A3-10, 18-23), Petitioner violated these well-
established precepts when he interceded in his daughter’s pending traffic
proceeding. He went in person to the Kirkwood Town Court and asked the court
clerk to transfer his daughter’s ticket from Judge Coe’s docket. When she did not,
he called Judge Weingartner, asked him to handle the ticket and then attempted to
discuss the merits of the case. He later attended a pre-trial conference as his
daughter’s advocate, and spoke condescendingly to the ADA as if she were “a
young little girl who didn’t know anything.” And most egregiously, he flagrantly
asserted his judicial office, telling the ADA that “if this ticket were in my
courtroom, I’d dismiss it” and that he had discussed the case with “several other
judges” who “all agreed that this should be dismissed.”
A. Petitioner committed misconduct when he went to the Kirkwood
Town Court and asked court clerk Carrie Aurelio to transfer his
daughter’s ticket from Judge Coe to Judge Weingartner.
Petitioner asserted the prestige of his judicial office to advance the private
interest of a family member when he went to the Kirkwood Town Court and asked
court clerk Carrie Aurelio to transfer his daughter’s ticket to Judge Weingartner
(A3-4, 156-57, 162, 330-31).
39
It does not matter that Petitioner did not explicitly reference his judicial
office when he spoke to the clerk. Petitioner “was aware that [Ms. Aurelio] knew
of his position and should have realized his requests would be accorded greater
weight … tha[n] they would have been had [Petitioner] not been a judge.” Matter
of Lonschein, 50 NY2d 569, 573 (1980). Indeed, Ms. Aurelio immediately
recognized the inappropriateness of Petitioner’s request and did not act on it (A20,
157). She testified that she did not tell Petitioner the ticket would not be
transferred because “you kind of feel obligated to just go along with it because I
don’t think it’s my place to tell a judge how things are done” (A157).
B. It was misconduct for Petitioner to ask Judge Weingartner to handle
his daughter’s ticket and to attempt to discuss the facts of his
daughter’s case.
Petitioner again violated the Rules when he called Judge Weingartner and
asked him to take his daughter’s ticket from Judge Coe’s docket and handle the
case himself (A21, 173-74, 177-78). He greatly exacerbated his misconduct when
he told Judge Weingartner that “he just didn’t think she deserved the ticket” and
“started going into the facts of the case” (A4, 174, 177-78).
As this Court held in LaBombard, intervention in a relative’s case in another
court is “particularly” serious “when the intervention takes the form of ex parte
contact with the judge presiding over the relative’s case.” LaBombard, 11 NY3d at
297. Petitioner deserves no credit for the fact that Judge Weingartner told him
40
that he “didn’t want to hear about” the details of his daughter’s matter and properly
declined to hear the case (A4, 177-78).
C. Petitioner engaged in serious misconduct when he went to the
Kirkwood Town Court, attended his daughter’s pre-trial conference,
and made impatient, discourteous and undignified remarks in an effort
to intimidate the Assistant District Attorney prosecuting the ticket.
After Petitioner’s improper attempts to have his daughter’s case transferred
to Judge Weingartner failed, he went to the Kirkwood Town Court and participated
in his daughter’s pre-trial conference (A5-8, 213-20, 240).
When Petitioner arrived at the court he had a conversation with Judge Coe
and misleadingly told him he was there to watch his grandchildren while his
daughter conferenced her case (A5, 158, 185-86, 200-01). During the
Commission's investigation, however, Petitioner admitted in sworn testimony that
he knew his daughter’s ticket remained on Judge Coe’s docket and that was the
real reason “why [he] went” (A241). According to Petitioner, if the ticket had been
transferred to Judge Weingartner, he “wouldn’t have bothered” going (A241).
Significantly, Petitioner remained at the court even after it became apparent
that his grandchildren would not be there. He conceded on cross-examination that
he stayed “to protect [his] daughter from Judge Coe” (A332). The fact that
Petitioner had with him a copy of the VTL statute is further evidence that he was
there to attend the conference, not to care for his grandchildren (A216, 333).
In the conference room, Petitioner improperly advocated his daughter’s
41
position that the ticket should be dismissed (A6-8, 333). Petitioner, who is not an
attorney (A129-30),8 chastised ADA Parker for not having a copy of his daughter’s
ticket (A6, 214). In a condescending tone, he told the prosecutor – a law school
graduate admitted in two states – that she had to prove her case “beyond a
reasonable doubt” (A6, 208-09, 215).
Throughout this encounter, Petitioner was rude and disrespectful to ADA
Parker. He threw a stapled packet of paper toward her, “slam[ing] it down,” and in
a “very authoritative,” “very condescending” and “controlling” tone stated, “Don’t
you know the law?” (A6-7, 216, 231). ADA Parker testified that he spoke to her as
if she were a “young little girl who didn’t know anything” and that when she left
the room she was “on the brink of tears” (A217-18, 230).
Incredibly, Petitioner did not deny that characterization – in his hearing
testimony he described ADA Parker as “a young inexperienced girl” and said “[i]f
she was easily intimidated, that’s not my problem” (A28, 313). He contended that
if Ms. Parker was “oversensitive as a DA, she may want to take another job”
(A313).
Most egregiously, Petitioner explicitly invoked his judicial status. When
Ms. Ayres told ADA Parker, “My father’s a judge,” Petitioner immediately added,
8 Although Petitioner is not an attorney (A129-30), when asked by ADA Parker whether he
represented his daughter, he responded, “Not yet” (A217).
42
“If this ticket was in my courtroom, I’d dismiss it” (A217, 232-33, 241-42, 338).
He then claimed that he had spoken to “several other judges” about the matter and
that they “all agreed that this should be dismissed” (A241, 243). This Court has
found misconduct to be “clearly more egregious” where a judge seeking favoritism
“identifie[s] himself as a Judge” and explicitly requests that a matter be dismissed.
Matter of Shilling, 51 NY2d 397, 403 (1980).
Ultimately, Petitioner achieved his intended purpose – ADA Parker felt
“extreme pressure” and left the conference room to speak with her supervisor
(A215-18, 236). Although the DA’s office had a written policy that cell phone
tickets could not be reduced or dismissed (A211, 221), Ms. Parker subsequently
moved to dismiss the ticket (A8, 221;371, Ex 9). She testified that she deviated
from the written policy in her treatment of Ms. Ayres’ ticket because her
supervisor “told her to dismiss it” (A222).
As the Commission found, “the fact that [Ms. Ayres’] ticket was ultimately
dismissed based on the prosecutor’s motion does not excuse [Petitioner's]
egregious misconduct” (A22). Indeed, it is notable that ADA Parker testified that
her office had a written policy “not to dismiss cell phone tickets or reduce them”
and that if a motorist rejected the DA’s offer of a guilty plea with a minimum fine
“it goes to trial” (A222). She testified that Ms. Ayres was treated differently
because, after hearing about Petitioner's comments in the conference, her
43
supervisor told her to dismiss it (A222).9 At the very least, that irregular
disposition, “following a procedure that was … unusual in that jurisdiction”
engendered an “aroma of favoritism.” Matter of George, 22 NY3d 323, 330
(2013).
POINT II
IN PEOPLE V FINCH, PETITIONER ABANDONED HIS ROLE AS A
NEUTRAL ARBITER AND ACTED AS AN ADVOCATE IN APPEALS
FROM HIS OWN ORDERS, INITIATED EX PARTE
COMMUNICATIONS, AND TWICE FAILED TO TIMELY SUBMIT HIS
COURT’S RETURN.
As the Commission found (A24-25), Petitioner committed misconduct in
People v Finch when he sent multiple letters making factual and legal arguments to
the County Court judge before whom the appeal was pending. He compounded
9 The decision of the Broome County District Attorney’s office to move for dismissal is curious.
VTL § 1225-d (1) proscribes “using” any portable electronic device while operating a motor
vehicle. The statute defines “using” broadly to mean, inter alia, “holding” the device “while
viewing, taking or transmitting images, playing games, or … accessing … other electronic data.”
A person who “holds” an electronic device “in a conspicuous manner” is “presumed to be using
such device.” VTL § 1225-d (4).
State Police Sergeant Pokigo testified that he observed Ms. Ayres driving while holding a
cellphone in her right hand (A144). Ms. Ayres’ right thumb was on the face of her cellphone and
her head was positioned towards her phone (A144-45). When the trooper inquired what she was
doing with her cellphone, Ms. Ayres told him she was going to “turn on music” for her children
in the backseat (A145).
This testimony, if credited at trial, is more than sufficient to sustain a conviction. Significantly,
the cell phone records provided by Ms. Ayres (A362-68, Ex 6) cannot provide a complete
defense, since the statute prohibits “holding” and “viewing” the phone for activities other than
telephone calls, sending texts or accessing the internet. See People v A.N., 44 Misc3d 269, 270
n1 (Rye City Ct 2014) (cell phone records “of little import”).
44
that misconduct by making “discourteous and undignified” statements about
defense counsel and the defendant, and by making most of his communications
with the court ex parte. Further, notwithstanding multiple directives and orders
from the County Court, Petitioner failed to file a proper and timely return.
A. Petitioner committed misconduct when he sent eight letters to the
Broome County Court containing legal and factual arguments, and
made biased, discourteous and undignified statements about the
defendant and his counsel.
Petitioner violated the Rules when he repeatedly wrote to the Broome
County Court regarding the appeal in People v Finch, and made legal and factual
arguments contending that the appeal should be dismissed. Instead of allowing the
attorneys to address the merits of those matters, Petitioner “abandoned his role as a
neutral arbiter and became an advocate” (A24). See Matter of Blackburne, 7 NY3d
213, 221 (2006) (judge “abandoned role as neutral arbiter, and instead became an
adversary.”)
Petitioner’s advocacy was persistent. Four of his letters (A25;A463-64, Ex
51;A467-69, Ex 53;A475, Ex 55;A492-93, Ex 59) were sent after Judge Smith
wrote to him and explained the role of the town court in the appellate process
(A453-56, Ex 46). Judge Smith cited various cases and statutes and explained to
Petitioner that his statements concerning the appeal’s merit were “troubling” and
inappropriate (A15-16, 25;A453-56, Ex 46). Yet despite Judge Smith’s letter,
45
Petitioner continued to write to him, pressing his opinion that the appeal was not
legitimate and should be dismissed.
In his eight letters to the County Court, Petitioner made numerous biased
and discourteous statements about the defendant or his counsel. Notwithstanding
that the only issue raised on appeal was the amount of restitution, he gratuitously
stated that the defendant had “issues regarding self-control” and presented a “clear
and present danger” to the complaining witness (A450, Ex 44). Without any basis
to do so, he suggested that attorney Fritzsch was “irresponsible” (A432-33, Ex 36)
and trying “to pad [his] bill at the expense of the Broome County taxpayers”
(A449, Ex 44). He opined that defense counsel’s arguments were “baseless,”
“without merit,” “irresponsible and unwarranted,” “ludicrous,” “totally beyond any
rational thought process,” and “defy logic” (A12-14). On multiple occasions
Petitioner wrote that the appeals should be “denied,” “denied immediately,”
“dismissed for lack of standing,” “dismissed as it has not been perfected,” or
“summarily dismissed” (A11-18).
Such “disparaging comments” (A28) and “biased, discourteous and
undignified statements” (A24-25) violated ethical standards requiring judges to
treat lawyers and litigants with courtesy and respect. See Matter of Sardino, 58
NY2d 286, 291 (1983) (removing judge who, inter alia, “disparaged attorneys”
and “demeaned defendants”).
46
B. Petitioner improperly initiated ex parte communications with the
Broome County Court.
Petitioner failed to copy Mr. Fritzsch, the prosecutor, or both on five of the
eight letters he sent to the Broome County Court (A24;A422, Ex 32;A429-33, Ex
36;A463-64, Ex 51;A475, Ex 55;A492-94, Ex 59). This Court has upheld
Commission findings of misconduct where judges engaged in such ex parte
communications. See, e.g., Matter of George, 22 NY3d 323, 330 (2013); Matter of
Young, 19 NY3d 621 (2012); Matter of LaBombard, 11 NY3d 294, 297 (2008);
Matter of Marshall, 8 NY3d 741 (2007).
Petitioner’s claim that he thought that Judge Smith was responsible for
distributing his letters to all of the parties (A325) is not credible. The record shows
that on two occasions, Petitioner did copy Mr. Fritzsch and the prosecutor (A446,
Ex 41;A449-520, Ex 44). In any event, even if true, Petitioner’s alleged
misunderstanding about his obligation to copy all parties on his communications
with County Court is no defense. “As a Judge, [Petitioner] had an obligation to
learn about and obey the Rules Governing Judicial Conduct.” Matter of
VonderHeide, 72 NY2d 658, 660 (1988). His “[i]gnorance and lack of competence
do not excuse violations of ethical standards.” Id.
47
C. Petitioner failed to respect and comply with the law when he did not
submit the court’s return by the deadlines set by two separate
Broome County Court orders.
Judges must respect and comply with the law. See Rule § 100.2 (A). Here,
as the Commission found (A26), Petitioner failed to comply with two County
Court orders directing him to file a return.
On October 25, 2011, Judge Smith issued an order directing Petitioner to file
his court’s return by November 8, 2011 (A11;A421, Ex 31). Petitioner did not
respond until December 20th – more than a month after the County Court’s
deadline – when he sent a letter claiming he did not receive the court’s order until
November 4th and that he was awaiting “clarification” from attorney Fritzsch
(A11;A422, Ex 32).
On February 1, 2012, Judge Smith sent Petitioner an order granting a stay in
the matter and directing Mr. Fritzsch to file his affidavit of errors with the Conklin
Town Court that same day (A11;A424-25, Ex 34). Judge Smith’s letter directed
Petitioner to file his return with 30 days (A424, Ex 34). Rather than file a return
summarizing the “evidence, facts or occurrences” adduced at trial, see CPL 460.10
(3) (d), Petitioner “sent Judge Smith an admittedly ‘snarky’ letter” full of legal
argument and demeaning comments (A11-12;A429-33, Ex 36).
On January 18, 2013, during Mr. Finch’s second appeal, Petitioner sent the
County Court a rude, unsolicited letter scolding Judge Smith for appointing
48
appellate counsel and accusing Judge Smith of “usurp[ing] the authority” of his
court (A13, 25;A449-50, Ex 44). On February 6, 2013, Judge Smith sent his
“instructive” reply, explicitly citing CPL 460.10 (3) (d) and advising Petitioner of
his obligation to file a return (A15;A453-56, Ex 46). Petitioner simply ignored it.
On April 22, 2013, Mr. Fritzsch moved for an order compelling Petitioner to
file a return (A15-16;A460-61, Ex 49). On May 30th, after Petitioner failed to
respond to the motion, Judge Smith issued an order directing Petitioner to file the
return by June 21st (A16;A462, Ex 50). Judge Smith explicitly ordered that the
return must “set forth or summarize evidence, facts or occurrences in or adduced at
the proceedings resulting in the judgment, sentence, or order, which constitute the
factual foundation for the contentions alleged in the affidavit of errors” pursuant to
CPL 460.10(3)(d) (A462, Ex 50).
Rather than file a return summarizing the evidence at trial, Petitioner re-sent
Judge Smith the second page of his January 18th letter, making the same comments
and arguments that Judge Smith found “troubling” in his letter of February 6th
(A16;A463-64, Ex 51).
Petitioner’s repeated failure to file a return in compliance with Judge
Smith’s orders cannot be excused because he “was unfamiliar with appellate
procedures” (A25). Judge Smith provided Petitioner a detailed explanation of his
role in the appeal and cited to the applicable provisions of the Criminal Procedure
49
Law (A456). Petitioner testified that he did not review the authorities cited in
Judge Smith’s letter (A255, 323). If Petitioner needed help in preparing a proper
return, he knew where to turn – the Judicial Resource Center (A324-25). Yet he
did not do so. His failure to take any steps to comply with two orders of the
County Court is serious misconduct.
POINT III
PETITIONER’S PROCEDURAL AND CONSTITUTIONAL
DEFENSES ARE WITHOUT MERIT.
Petitioner's multiple procedural and constitutional defenses (Br1-8) are
without merit.
There is no basis for Petitioner's claim that the Commission employed
“improper investigative techniques” and conducted an “improper search and
seizure” of his court records (Br1-4). It is well-established that the Commission
has “broad power to inquire into the conduct of a judge.” Nicholson v State
Comm’n on Judicial Conduct, 50 NY2d 597, 611 (1980). The Commission's
“broad powers” to “request and receive a wide range of records” empower it to
obtain court records, even when those records are sealed. NYS Comm’n on
Judicial Conduct v Rubenstein, 23 NY3d 570, 581 (2014).
Nor is it true that the Commission was without authority to examine
Petitioner's “personal notes” taken “during a case” (Br3). Petitioner does not
identify the notes to which he refers or explain how he was prejudiced by the
50
Commission’s alleged conduct. Commission counsel did not introduce any
“personal” notes into the hearing record and the Commission’s determination does
not reference or rely on any such notes. In any event, the Uniform Civil Rules for
the Justice Courts provide that any “notes made by the court of proceedings or
testimony” are part of the case file. 22 NYCRR § 214.11(a)(1).
Petitioner's claim that the Commission's Deputy Administrator “insert[ed]
herself into the investigation” and “obstruct[ed] governmental administration” by
directing a staff attorney (Br4-6) is also wrong. The Deputy Administrator is
responsible for directing all investigations conducted by the Commission’s Albany
office, as authorized by the Commission and under supervision of its
Administrator, and there is nothing unusual about the fact that she sat in while
Petitioner gave testimony or suggested lines of inquiry. “[I]mpugning the integrity
of … Commission staff” does nothing to “distract from the considerable proof
against petitioner.” Matter of Bauer, 3 NY3d 158, 162 (2004).
Contrary to Petitioner's claim (Br6-7), his constitutional rights were not
violated when the Referee properly advised him that the Commission could draw a
“negative inference” from his failure to testify (A302). See Matter of Reedy, 64
NY2d 299, 302 (1985) (Court considered Petitioner's failure to testify as further
evidence of misconduct). It is well-settled that the constitutional right against self-
incrimination does not “automatically insulate a party” in a civil matter and that “a
51
negative inference may be drawn in the civil context when the party invokes the
right against self-incrimination.” El-Dehdan v El-Dehdan, 26 NY3d 19, 37 (2015).
Petitioner's argument that he had “immunity” because he allegedly followed
the guidance of the Town & Village Courts Resource Center has no legal or factual
basis. Petitioner apparently refers, at least obliquely, to Judiciary Law § 212 (2) (l)
(iv), which provides that
[a]ctions of any judge or justice of the uniform court system
taken in accordance with findings or recommendations
contained in an advisory opinion issued by the panel shall
be presumed proper for the purposes of any subsequent
investigation by the state commission on judicial conduct.
There is no evidence that Petitioner requested and relied upon an opinion
from the Advisory Committee on Judicial Ethics and no comparable statutory
presumption with respect to the Resource Center.
Moreover, as Petitioner concedes, the Resource Center made clear that while
a judge may attend his daughter’s court appearance “as a parent,” the judge may
“not attempt to use their judicial position in an effort to obtain special favors or
outcomes” (Br10). That is exactly what the Commission found that Petitioner did
here when he told the ADA “if this was in my courtroom, I’d dismiss it” (A22).
As a result, Petitioner's claim to “immunity” is baseless.
Finally, Petitioner’s claim that the Formal Written Complaint did not give
him notice that the Commission would consider “the tone of [his] letters” in
52
Charge II is demonstrably untrue. Even if Petitioner's letters had been a model of
civility, it was nonetheless improper for Petitioner to make legal argument in
support of his orders and to communicate ex parte with the County Court.
Moreover, paragraph 15 of the Formal Written Complaint explicitly charges that
his letters contained “biased, discourteous and undignified statements about the
defendant and his counsel” (A44), a characterization adopted by the Commission
in its determination (A24-25).
POINT IV
PETITIONER SHOULD BE REMOVED FROM JUDICIAL OFFICE.
Petitioner’s multiple attempts to influence the disposition of his daughter’s
traffic ticket, his multiple biased, discourteous and improper ex parte letters to the
Broome County Court, and his repeated failure to timely comply with County
Court’s order to file a return constitute misconduct warranting his removal from
judicial office.
While “[j]udicial misconduct cases are, by their very nature, sui generis” and
“removal is [not] limited to those categories of cases that have formerly come
before” the Court, Matter of Blackburne, 7 NY3d 213, 219-20 (2006), the
misconduct in this case is comparable to conduct the Court found warranted
removal in Matter of George, 22 NY3d 323 (2013).
53
In George, this Court found that the Petitioner dismissed a traffic ticket
“following a procedure that was … unusual in that jurisdiction” and that created an
“aroma of favoritism.” George at 330. Here, Petitioner requested dismissal of his
daughter’s traffic ticket and, after Petitioner explicitly asserted his judicial office in
bullying the prosecutor, the prosecutor deviated from her office’s usual written
guidelines to move for dismissal after notifying a superior of Petitioner’s conduct.
In George, the Petitioner engaged in an ex parte communication in which
“he made statements suggesting that the litigant's claim lacked merit.” George at
330. Here, the Commission found that Petitioner sent “eight unauthorized letters -
five of which were ex parte” to the County Court judge “repeatedly telling the
court that the appeal lacked ‘merit’" (A24).
In George, the petitioner was on notice he should avoid hearing cases
involving the Johnson family because he had received a prior Commission Letter
of Caution. George at 329. Here, despite a detailed letter from the County Court
judge putting him on notice that it was improper to engage in legal advocacy,
Petitioner sent “four subsequent letters” in which “he continued to make factual
and legal arguments addressing the merits of the case” (A25).
Beyond those similarities, this case presents additional factors warranting
removal. In asserting his judicial office for the benefit of his daughter, Petitioner
spoke to ADA Parker in a “condescending” tone as if she were “a young little girl
54
who didn’t know anything” (A7, 22). His letter to Judge Smith was rude and
admittedly “snarky” (A14). He made “biased, discourteous and undignified
statements about the defendant and his attorney” (A24-25).
Aggravating the misconduct itself, Petitioner has demonstrated a profound
incapacity to acknowledge that his conduct violated the Rules. Notwithstanding
that he explicitly referenced his judicial office when confronting the ADA, he
continues to insist that he appeared at the conference in his daughter’s pending
case “exclusively as a parent” (Br16). He believes his “comments” in his letters to
the Broome County Court “were factually correct” and that the finding of
misconduct “was based solely on the tone” of his response (Br9, 19). He defends
“the tone” of his letters as being “subject to interpretation” and suggests the
Commission is “an outside party determining what is politically correct” (Br19-
20).
The totality of Petitioner’s misconduct, coupled with his inability or
unwillingness to recognize the impropriety of his actions, warrants his removal
from office.
A. Petitioner committed misconduct warranting removal when he
repeatedly lent the prestige of judicial office to advance the private
interests of his daughter.
Standing alone, Petitioner’s three interventions in his daughter’s pending
case in another court warrant at least a censure. See Matter of Edwards, 67 NY2d
55
at 155 (imposing censure while noting “as a general rule intervention in a
proceeding in another court should result in removal”).10
Here, there are several aggravating factors. Initially, Petitioner's
“condescending” treatment of the ADA as if she were “a young little girl who
didn’t know anything” (A6,7, 22,28) is inexcusable. See Matter of Simon, 28
NY3d 35, 39 (2016) (removing judge who, inter alia, used judicial status to “bully
and intimidate” others).
His attempt to discuss the merits of his daughter’s case with Judge
Weingartner elevates the misconduct, since intervention in a relative’s case in
another court is “particularly” serious “when the intervention takes the form of ex
parte contact with the judge presiding.” LaBombard, 11 NY3d at 297.
Finally, although an explicit reference to one’s judicial status is not
necessary to find misconduct, Matter of Lonschein, 50 NY2d at 573, misconduct is
“clearly more egregious” where, as here, a judge both asserts his office and makes
a specific request for dismissal. Matter of Shilling, 51 NY2d at 403.
10 Petitioner does not argue that his judgment was “clouded” because he was acting as a parent.
Cf Matter of Edwards, 67 NY2d at 155 (Petitioner’s “judgment was clouded by son’s
involvement”). On the contrary, Petitioner has argued throughout these proceedings that he did
not commit any misconduct at all because his “rights as a parent” gave him “immunity” to
intervene on behalf of his 30-year-old daughter (A28;Br7-9, 10-11).
56
B. Petitioner committed additional misconduct warranting removal
when he sent eight letters, five of which were ex parte, to the court
hearing the appeals in People v Stephen Finch, and failed to timely
submit the court’s return.
Petitioner demonstrated his gross misapprehension of a judge’s role when he
sent multiple rude and disrespectful letters to the Broome County Court – five of
them ex parte – expressing his strenuous objection to appeals of his orders in
People v Finch. Petitioner “abandoned his role as a neutral arbiter,” advocated for
the dismissal of the appeals and made “biased, discourteous and undignified
statements about the defendant and his attorney” (A24-25).
Incredibly, even after County Court Judge Smith told Petitioner in a patient
and detailed letter that his arguments were “misplaced” and “troubling,” Petitioner
“continued to make factual and legal arguments addressing the merits of the case
and to disparage the defendant and his attorney” (A25). “The fact that the
misconduct continued even after petitioner was on notice that … his actions [were]
improper demonstrates that he is not fit for judicial office.” Matter of Robert, 89
NY2d 745, 747 (1997).
Finally, “despite multiple orders and directives from the County
Court, [Petitioner] repeatedly failed to submit the court’s return in a timely
manner” (A26). There is no place in the judiciary for a judge who purposefully
and repeatedly ignores a court order. “Petitioner's actions were thoroughly
inconsistent with the obligation to ‘observe … high standards of conduct’” and
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“contrary to the fundamental injunction that ‘[a] judge shall respect
and comply with the law.’” Matter of Heburn, 84 NY2d 168, 171-72 (1994). It is
particularly troubling that Petitioner “persisted in [his] course of conduct,
notwithstanding the admonitions of the … County Court.” Matter of Tyler, 75
NY2d 525, 528-29 (1990).
By making repeated legal arguments to the County Court, “petitioner
abandoned [his] role as neutral arbiter, and instead became an adversary” in the
Finch litigation. Matter of Blackburne, 7 NY3d at 221. His demeaning and
discourteous remarks about Mr. Finch and his attorney “[display] a lack of the
basic qualities of fairness, impartiality and self-restraint which are essential for
judicial office.” Matter of Tyler at 528. The “ability to be impartial is an
indispensable requirement for a judicial officer.” Matter of Sardino, 58 NY2d at
290.
C. Petitioner’s inability to recognize and acknowledge his misconduct
further compel his removal from office.
In Matter of Bauer, 3 NY3d 158, 165 (2004), this Court removed a judge
whose “failure to recognize and admit wrongdoing strongly suggests … we may
expect more of the same.” Indeed, the Court has explicitly recognized that a
judge’s “‘fail[ure] to recognize the inappropriateness of his actions’… is a
significant aggravating factor on the issue of sanctions.” Matter of Hart, 7 NY3d 1,
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7-8 (2006), quoting Matter of Aldrich, 58 NY2d 279, 283 (1983); see also Matter
of Sims, 61 NY2d 349, 356 (1984).
Here, Petitioner’s failure to recognize and admit wrongdoing is beyond
dispute. He testified that he “thought it was appropriate to ask Judge Weingartner
if he would transfer a ticket … to his court” (A331). He believed it was proper to
advocate his daughter’s position that her ticket should be dismissed (A332). He
argued, and continues to argue, that he has “immunity” to intervene “as a parent”
on behalf of his daughter in an ongoing judicial proceeding (A627, Br7-9, 10-11).
Rather than concede that he was “very condescending” in his confrontation with
ADA Parker, he maintained that she was “a young, inexperienced girl” and
testified that if “she was easily intimidated, that’s not my problem” (A313).
Regarding Charge II, Petitioner astoundingly testified that his letters were
not ex parte or biased (A325-26). He stated that despite his numerous disparaging
comments about Mr. Finch, he was merely advocating his opinions and “not
necessarily attacking the defendant” (A314). He made the astonishing claim that it
was Judge Smith’s responsibility to share his letters with the defense on the self-
serving assumption that Judge Smith “would follow those same procedures that I
would follow and that if he gets something, he makes sure everybody gets a copy”
(A315).
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When given the opportunity to concede error at oral argument before the
Commission, Petitioner said “the problem was that his actions, including his
statements during the pre-trial conference, caused ‘misunderstandings’ and ‘could
have been misinterpreted’" (A28). As the Commission found, “[i]t thus appears
that [Petitioner] still lacks an understanding of why his conduct was improper”
(A28).
Petitioner has repeatedly and brazenly violated the Rules and demonstrated a
complete lack of insight and sensitivity to ethical standards. He should be removed
from judicial office.
CONCLUSION
It is respectfully submitted that this Court should accept the Commission's
determination that Petitioner has engaged in judicial misconduct that renders him
unfit to hold judicial office, and that the appropriate sanction is removal.
Date: July ZY, 2017
Albany, New York
Of Counsel
Cathleen S. Cenci
Eteena J. Tadjiogueu
Mary C. Farrington
Respectfully submitted,
ROBERT H. TEMBECKllAN
Administrator and Counsel to the
Commission on Judicial Conduct
By: --~-~_W-.J_,,..__ _
Edward Lindner
Deputy Administrator
Corning Tower, 23rd Floor
Empire State Plaza
Albany, New York 12223
(518) 453-4600
CERTIFICATION PURSUANT TO RULE 500.13 (C) (1)
I certify that this brief was prepared using Microsoft Word 2013 and that the
total word court for the body of the brief is 13,892 words.
~~Wr--
Edward Lindner
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