author:
      Per Curiam.
     Cardamons, J. (concurring).

text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Hubert Richter, a Judge of the City Court of Kingston, Third Judicial Department.
    Present: Honorable Arthur Markewich, Presiding Honorable Joseph A. Suozzi Honorable Milton Mollen Honorable Reid S. Moule Honorable Richard J. Cardamons
   On October 31, 1977, the following opinion of the Court on the Judiciary was handed down:

Per Curiam.

Respondent, a Judge of the City Court of Kingston, has pending against him four separate charges, divided into specifications, of judicial misconduct in violation of established standards. We have had the benefit of the Referee’s meticulous report of 68 pages, containing his findings and the reasons therefor, and have heard argument by counsel for both sides. Except where specifically stated to the contrary, we confirm the Referee’s findings as well as his procedural rulings.

Charge I

THE MALANIOS CONFRONTATION

Malanios and two codefendants had pleaded guilty to a class A misdemeanor before respondent to cover a charge of attempted escape from the Ulster County Jail. All three were second felony offenders, awaiting sentence in County Court for separate felony convictions. The reduced plea before respondent was designed to expedite swift transfer to State prison, to which it was expected they would be committed by the County Judge. Though sentence by respondent was set for the day following the felony sentence, the warden, desiring quick riddance of these troublesome guests, dispatched them instead on the very same day to respondent’s court for immediate sentence. This occurred on a Thursday which respondent, being a part-time Judge, usually devoted to his private office practice. On Thursday his judicial seat was taken as usual by a substitute Judge. The latter, unable to impose sentence for respondent, directed return of the prisoners to the county jail. The warden called respondent on the telephone, communicating his desire to get the prisoners on their way to Dannemora, and asked him to impose sentence forthwith; respondent agreed, and they were sent, handcuffed, to respondent’s law office, without notice of any kind, either to their assigned counsel or to the District Attorney.

Malanios’ codefendants were each given jail sentences of one year, to run concurrently with those imposed in County Court. Malanios was sentenced to the same term, but to be served consecutively to the felony sentence. He complained vociferously and abusively, claiming a prior agreement for the treatment accorded the others. Respondent himself testified that his reaction was to come out from behind his desk and seat himself on the edge, folding his arms, and that he said, "Court is over now, it’s Nick and Rick, and any way I can oblige you, I will be happy to do.” Malanios responded with continued profane and obscene abuse, whereupon respondent directed his removal, following him to the door "a foot or two foot away from him”, and admonished him to be quiet. Apparently the incident ended thus.

Later that day, respondent was called on the phone by Malanios’ lawyer and his error in proceeding in the absence of counsel called to his attention. He stated that it had slipped his mind and he forthwith arranged to vacate the sentence, which he followed by resentence in proper fashion, to a more lenient term.

The charge specifications will now be taken up. It is charged (specification [a]) that respondent was intemperate, injudicious and abusive and exceeded his authority by conducting the sentencing in the absence of counsel and without giving notice that it was to be held earlier than scheduled. This is literally true. It is hornbook law that, as respondent acknowledged, error was committed which would have been reviewable on appeal had it gone uncorrected. The prisoners’ testimony that they had warned respondent of the absence of counsel is not worthy of belief, and, when all the surrounding circumstances are taken into account, it is obvious that respondent’s error was one of sheer inadvertence. (See Charge II below.) In terms of prejudice to anyone, the error was harmless. No inference of willful misconduct may be drawn as to this specification, and we agree with the Referee in not sustaining this charge.

Specification (b) charges injudicious conduct in that respondent carried on the sentencing in a private law office. Again, this is literally true. City Court facilities in Kingston were not exactly commodious. Respondent’s regular courtroom, occupied that day by his substitute, was the City Council Chamber. The evidence before the Referee is that use of facilities other than a courtroom for court proceedings in rural and semirural areas of the State is not uncommon. We know of no prohibition in law thereof, as long as the facility used is open to the public and otherwise lends itself to the purpose. The court had no choice in these circumstances but to use the office for the described purpose. The community is responsible for providing court facilities, and not respondent. We agree with the Referee in not sustaining the charge.

Specification (c) charges failure to keep a proper record of the proceeding. We are not told wherein this was judicial misconduct. The evidence was to the effect that no provision is made in this type of court for a qualified court reporter to attend at sentences. It is not shown that, in this court not of record, respondent failed to keep his own written record. Again, if respondent should have had a reporter record the sentence, the community should have provided such a service, and it did not. The Referee did not sustain the charge, and we agree.

The next two specifications, (d) and (e), must be read together: they allege that respondent engaged in an angry physical confrontation with Malanios, expressing his intention and willingness to engage in a fight with him. Actually, there was no physical contact between them in the two aspects of confrontation, one at the desk, and the other at the door. The first was calm, and, had it not been followed by the scene at the door, might be deemed injudicious only in that it was silly. In words, it was a challenge, but Malanios was obviously not in a position to pick up the gauntlet. But the provocation—an explanation, not an excuse—continued, and, as respondent acknowledged, he became angry, and continued the verbal conflict. Nevertheless, respondent’s conduct was unseemly, injudicious, and intemperate, and we confirm the Referee’s report, sustaining this charge to the extent we indicate, i.e., engaging in an angry verbal exchange of words with a defendant and leaving the Bench to continue it in the immediate presence of the prisoner.

Charge III

THE SCHISKIE CONFRONTATION

This charge, in two specifications, is reminiscent of the Malanios matter. In specifications (a) and (b), respondent is charged with having been intemperate, injudicious and abusive and having acted in excess of authority by leaving the Bench, approaching a defendant, angrily demanding an apology from him, and striking him. Schiskie was on the floor in the custody of three officers. Schiskie, a longtime offender, had been arraigned before respondent on several charges involving appropriation of a truck loaded with television sets. When bail was set at $10,000, after respondent at first forgot to do so, the defendant called respondent several unprintable names. Respondent directed the officers to bring defendant closer to the Bench, whereupon, as respondent testified, defendant "violently objected, kicked, fought them, and prevented it * * * continued to scuffle and * * * was knocked to the floor.” Respondent said that "after sometime” while Schiskie was still struggling and "was in serious danger * * * of being hurt”, he "went over to Schiskie” bending "over at the waist”, and said to him "Is this what you want? Why don’t you apologize?” Continuing, he said that defendant attempted three times to spit at him, which was when he "gave him the motion with the back of the left hand”, not intending to hit him but "to show * * * contempt for him.” Respondent’s description of Schiskie’s conduct was completely corroborated by a disinterested witness, waiting for disposition of his traffic infraction. (Possibly irrelevant but interesting is the fact that the corroborating witness was later convicted and fined by respondent.) The request for apology met with another stream of Schiskie’s obscenities. When defendant fell to the floor, continued the witness, respondent left the Bench, stood over him and attempted to restore order, "trying to reason with him”, while the defendant tried to swing at him. Schiskie alone said respondent struck him; the witness waiting for odisposition of his case said that respondent did no more than block Schiskie’s swing; respondent himself indicated that whatever contact there was derived from his contemptuous gesture of dismissal. He described it at one time as that of a king dismissing a subject. Schiskie alone said that respondent kicked him. The evidence against the specification which charged striking is overwhelming, and that specification is not sustained either by the Referee or by us. However, to the extent that respondent "left the bench and * * * demanded an apology from the defendant who was on the floor in * * * custody”, we disagree with the Referee and sustain that specification. We refrain deliberately from characterizing the manner in which this was done as "angrily”, but we consider it injudicious and an impropriety for a Judge to leave the Bench in the circumstances described and to make himself a participant in the action. If the officers present were doing their duty—and apparently they were—it was not for respondent to become involved by his immediate presence at the scene. If there was risk of injury to defendant, the court could have controlled matters by directions from the Bench. Neither here, nor in the Malanios situation was it appropriate for respondent to leave the Bench and approach the defendant.

Charge II

FALSE SWEARING

It is charged that, at a preliminary hearing before the Commission on Judicial Conduct, respondent had sworn falsely in respect of several aspects of the Malanios affair. Specification (a) charges a false denial of his having approached Malanios in angry confrontation. It does not pinpoint a particular moment or precise place of occurrence of respondent’s confrontation with Malanios, and adjudication of the charge requires resolution of semantic problems. Even one accustomed to deciding intricate issues of fact almost on a daily basis finds difficulty in understanding precisely what answer was required by the questions asked before the commission as to the details of this episode. They did not precisely advert respondent as to what was sought by way of answer. Specification (b), concerning alleged threats by Malanios to respondent and his family, leads to an equally inconclusive result. There seems to be no doubt that Malanios, in venting his spleen upon the Judge who had just passed judgment upon him, used expressions which, subjectively considered, might be regarded as threats or might not be. A well-seasoned Judge would probably not have taken them seriously for a moment. In the context of both (a) and (b), requiring interpretation of language, it cannot be said that respondent’s description of what Malanios said was intentionally false, or even false at all. It must also be borne in mind that this specification rests to a great extent upon the evidence of Malanios and his codefendants, and we have commented elsewhere upon their credibility.

Specification (c) characterizes as false respondent’s statement to the commission that the defendants being sentenced were not handcuffed. There is no doubt that they were. But respondent explains that, in recollection, he thought they were not; it was his custom to have handcuffs removed when defendants were arraigned for sentence. This incident occurred, it must be considered, in circumstances which were unusual and undoubtedly confusing: unexpected production of the prisoners for sentence at an unexpected time in an unusual place for exigent reasons, and for which respondent was completely unprepared. It is understandable that recollection might be faulty against this background. It is at the very least doubtful that the statement was willfully false. A mistake in testimony does not constitute false swearing.

The last specification, (d), requires a credibility judgment to be made in its determination: whether to credit Malanios and his codefendants in their claims that respondent had been alerted by them to the absence of counsel for both sides at the arraignment for sentence. There is a direct conflict between respondent and these witnesses. To begin with, their credibility is less than good. They were contradicted by their own counsel’s testimony on an important matter, the circumstances of their plea of guilty, at which, said they, respondent had made a specific promise as to the sentence to be imposed. They had criminal records. In contrast, respondent’s reputation for veracity was attested to by character evidence, given by impressive witnesses. The picture given by the hearing record is of a forthright man. His own comment as to proceeding in counsel’s absence is typical: "I was stupid on that one.” Indeed, the greater part of the evidence against him came from his own lips. Nor does the charge stand up when measured by respondent’s own conduct when, on being called on the phone by Malanios’ lawyer and having the error called to his attention, he promptly vacated the sentence and scheduled resentence with counsel present.

As to Charge II we confirm the report of the Referee to the ‘ effect that none of its four specifications was proven by a preponderance of the credible evidence, and the charge is not sustained.

Charge IV

IMPROPER SENTENCES

It is charged that, during a period of five years, respondent failed to comply with the rules and procedures prescribed by law with respect to defendants appearing before him in that he set conditions, issued directives and imposed sentences which were improper and unauthorized by law, and that he accepted guilty pleas and thereafter improperly dismissed the charges.

Respondent’s sentencing procedures were, to say the least, unorthodox, consisting largely of what may be described as "making the punishment fit the crime”. Charge IV was broken down at the hearing into six specifications, into each of which were grouped sentences with like irregularities. All these cases involved minor matters.

The first such specification, unlike the others however, involves a single defendant, one Feltham, who was directed by the court, in addition to the conditions stated in a proper probation order, "to attend * * * a church, with instruction that it could be any church other than” a certain named church, and report to the court on the sermons, and also to do certain reading. This was not an enforceable order; indeed, after a certain time, it was no longer observed. The order was made after consultation with and consented to by the defendant’s father, and was well motivated. Although the direction to omit a certain church is subject to criticism, we agree with the Referee that this act involved no judicial impropriety.

The second group consists of six sentences, some of which imposed probation for periods of time of insufficient length under section 65.00 (subd 3, par [b]) of the Penal Law. The probation department, without avail, called respondent’s attention to the illegality. Respondent took the position that these sentences, though technically incorrect, were harmless error because he was empowered to terminate the probation at any time (CPL 410.90); he just did so in advance. He also imposed both probation and a brief jail sentence in one case, and in three others illegally sentenced to both probation and a conditional discharge, forbidden by CPL 410.10; one of these was corrected at resentence and, as to the others, it appears that the discharges became nullities in the presence of the probation. All the cases in this group constituted rough justice; all could have been appealed, but none was. Errors of law, not impropriety were here involved.

The third and fourth groups consist of 13 cases in which, having found defendants guilty, he either conditionally discharged or dismissed after the defendants had, on his order, made contributions to various charities. Though well intentioned, the direction was completely improper. A Judge is forbidden to solicit for charity; a fortiori, he may not direct contributions to charities, particularly where the recipient is specified. We, as well as the Referee, agree that the charges are sustained as to this group.

The fifth group represents another species of rough justice in which three defendants were directed to perform certain "voluntary work” for a specified period for a school, a church, and the police department, as conditions for discharge. The sixth consists of six cases in which similar work was done in return for dismissal. These directions were illegal. However, they occurred before December, 1975 when the Appellate Division, Second Department, said so in no uncertain terms. (See People v Mandell, 50 AD2d 907.) While dismissal is permissible in the interest of justice (CPL 170.40, 170.30), the reasons were insufficient, but, it seems, not knowingly so. And respondent has prestigious company in thinking the work assignments proper; indeed, there is support for the opposite view. (See Simon, Needed: A New Look at Punishments, 49 NY State Bar Journal 285.)

In the entire panoply of specifications found in Charge IV, we have sustained as judicial impropriety only that having to do with the exacting of charitable contributions. The rest are either de minimis or consist of errors of law, not properly cognizable as judicial misconduct.

CONCLUSION

We have sustained the charges against respondent Hubert Richter of injudicious, abusive and intemperate conduct in the Malanios and Schiskie affairs in that he engaged in unseemly verbal confrontations with both defendants (Charges I [d], [e]; III [a]) in the course of which he left the Bench for the immediate vicinity of each defendant, and there continued the conflict. We have also sustained the charge of judicial impropriety set out in the third and fourth specifications of Charge IV in that respondent improperly required 13 defendants to make charitable contributions as a condition for dismissal of the criminal charges against them or imposition of a sentence of conditional discharge. There is nothing in the record—indeed, it is not even suggested to us—to the effect that respondent has been guilty of either corrupt or venal conduct. Actually, we are impressed with his openness and frankness, his earnestness, energy, and good intentions. For these reasons, we do not invoke the sanction of removal from the Bench. Regarding our function to be educational as well as punitive, we turn to another possible resolution of this case.

"[T]he essence of the sanction imposed is not 'punishment’ but a reprimand based on grounds bearing rational relationship to the interest of the State in the fitness of its judicial personnel.” (Matter of Kelly, 238 So 2d 565, 569 [Fla].) "The function of this court is not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents. That purpose is accomplished in this case by this review and condemnation of respondent’s conduct”. (Matter of Waltemade, 37 NY2d [a], [111].) We are of the opinion that the charges which we have sustained indicate a pattern of conduct which, if recognized by respondent to the extent that he promptly takes appropriate corrective action, may well result in his becoming a truly valuable member of the judicial community.

To exercise the judicial function properly, a lawyer must understand that, no longer an advocate, he has become a somewhat impersonal being, objective in outlook and action, never involved personally in the ongoing drama before him. Respondent had apparently never learned this before he was elected to the Bench, so that, when he encountered a situation in the Malanios case which was beyond his ken, his response was the classic arrogance of the uninformed. He reacted instinctively, and became personally involved, with machismo taking over and good sense in full flight. This violent verbal reaction was unseemly, injudicious, and inexcusable. Further, it was a form of bullying and a misuse of his superior position as a Judge. This was compounded two days later in the Schiskie matter where, again, uninstructed instinct took over, and the earlier episode was virtually repeated without change. A Judge should not countenance that loss of dignity in his courtroom which demeans the processes of justice. Certainly he should not deal with any such episode by adding fuel to the fire by his own departure from proper conduct. "It is within a judge’s power—indeed, it is his obligation—to 'protect the sanctity and dignity of . . . courtroom proceedings . . .’ [Citation.] A judge’s criminal contempt power provides him with the judicial muscle to cope with such situations” (Gregory v Thompson, 500 F2d 59, 64).

The sentencing irregularities—even those involved in the charges we have not sustained by a preponderance of credible evidence as judicial improprieties—are part of the same pattern. We find here a Judge who apparently did not take the trouble to acquaint himself with the standards of sentencing set out in statute and case law. He rejected professional advice thereafter. The wide discretion enjoyed by a sentencing Judge is not boundless. Conditions set in a noncustodial sentence must be condign to the case, and it goes without saying that they must be legal. Respondent displayed his disdain for such limitations. His pattern was that of the traditional country squire, dispensing both largesse and a certain type of justice with equally open hands. His attitude is exemplified by the royal gesture toward Schiskie, characterized by the latter as a blow. To use the expressive and rich argot of the street, respondent, without any attempt to do it right, "played it by ear.” It is bad enough that he has been compelled to exercise the judicial function in a makeshift courtroom and without a court reporter; he should not be a makeshift Judge but one interested in the appropriate fulfillment of his duties.

If respondent puts his mind to it to learn what is to be expected of a Judge, and does so with the energy he has displayed in his rather undirected discharge of judicial duties, this valuable lesson to him will not have been lost.

Respondent should be severely censured.

APPENDIX

Charges

Section 22 of article VI of the Constitution of the State of New York empowers the Court on the Judiciary to remove a Judge of a City Court of the State of New York for cause.

Hubert Richter was elected to the City Court of the City of Kingston, Third Judicial Department, for a term commencing January 1, 1966, and has continued to hold that office to date.

Pursuant to section 22 of article VI of the Constitution of the State of New York, cause exists for the removal of Hubert Richter as a Judge of the City Court, City of Kingston, as a result of acts of misconduct which violated: the standards of judicial conduct established in the common law of the State of New York; the Code of Judicial Conduct, adopted by the New York State Bar Association, effective March 3, 1973; the Rules Governing Judicial Conduct, promulgated by the Administrative Board of the Judicial Conference of the State of New York, effective January 1, 1974; and the applicable statutes of the State of New York.

Charge I

On February 27, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority in that, in connection with the sentencing of three defendants, Nicholas Malanios, Thomas Silva and Michael Traficante, he:

(a) conducted the sentencing in the absence of the defendants’ attorneys and a representative of the District Attorney’s office and without giving them notice that the sentencing was to be held on a date earlier than scheduled;

(b) held the sentencing in a private law office;

(c) failed to keep a proper record of the proceeding;

(d) engaged in an angry, physical confrontation with Nicholas Malanios;

(e) stated and otherwise expressed his intention and willingness to engage in a fight with Nicholas Malanios; in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Charge II

On January 23, 1976, after being duly sworn as a witness, Hubert Richter, a Judge of the City Court of Kingston, falsely testified before the Temporary State Commission on Judicial Conduct, in connection with the sentencing of Nicholas Malanios, Thomas Silva and Michael Traficante on February 27, 1975, that:

(a) he did not approach Nicholas Malanios and engage in an angry, physical confrontation with him;

(b) Nicholas Malanios threatened Judge Richter’s life and the life and safety of Judge Richter’s family;

(c) the defendants were not in handcuffs while being sentenced;

(d) he was not made aware during the course of the sentencing that neither the defendants’ attorneys nor a representative of the District Attorney’s office was present, in violation of the Rules of Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.2, and the Code of Judicial Conduct, Canons 1 and 2.

Charge III

On March 1, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious and abusive and acted in excess of his lawful authority while arraigning a defendant, John Schiskie, in that he:

(a) left the Bench, approached the defendant and angrily demanded an apology from the defendant who was on the floor in the custody of three law enforcement officers;

(b) struck John Schiskie; in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Charge IV

During the years 1970 to 1975, Hubert Richter, a Judge of the City Court of Kingston, failed to comply with or faithfully apply, the rules and procedures prescribed by law with respect to defendants appearing before him, in that he:

(a) set conditions, issued directives and imposed sentences which were improper and unauthorized by law;

(b) accepted guilty pleas and thereafter improperly dismissed the charges;

in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Cardamons, J. (concurring).

The Commission on Judicial Conduct has made four separate charges against respondent, Hubert Richter, a Judge of the City Court of Kingston.

Charge I asserts that respondent undertook to sentence one Malanios and two codefendants in his private law office without notice to either Malanios’ assigned counsel or the District Attorney. After sentence was imposed a verbal altercation occurred between respondent and Malanios. Respondent admitted that he came out from behind his desk and said to the handcuffed Malanios "Court is over now, it’s Nick and Rick, and any way I can oblige you, I will be happy to.” Later, when Malanios responded with profane language, respondent directed that Malanios be escorted from his office by the guards present. Respondent, however, followed Malanios to the door being only a foot or two from him while admonishing Malanios to be quiet. After Malanios’ lawyer called, later that same day, respondent vacated the sentence and properly resentenced Malanios.

There are five (a-e) specifications under Charge I. Specification (a) which charges respondent with willful sentencing in the absence of counsel is factually accurate, but did not, under the circumstances revealed in this extensive record, constitute willful misconduct, but merely inadvertence. Specification (b) charges respondent with sentencing in his private law office. There is no impropriety involved in the use of such an office so long as it is open to the public and otherwise properly and appropriately lends itself to the purpose. There is no merit to specification (c) with respect to keeping a written record of the proceeding since there is no proof that respondent failed to keep such a record. Specifications (d) and (e) charge that respondent engaged in an angry physical confrontation with Malanios, expressing his intention and willingness to fight with him. The record demonstrates that these two specifications should be sustained.

Charge II contains four (a-d) specifications of falsely swearing at the preliminary hearing before the Commission on Judicial Conduct with respect to various aspects of the Malanios matter. Suffice it to say the Referee found that none of these four specifications was proven by a preponderance of the credible evidence and, hence, the charge should not be sustained.

Charge III accuses respondent of leaving the Bench and approaching a violent and obstreperous defendant who was appearing before him and who was scuffling with three officers. During the struggle, the defendant fell to the floor and respondent bent over him demanding an apology. Specification (a) which charges respondent with being intemperate and injudicious should be sustained. Specification (b) which charges respondent with striking the defendant is refuted by all present, except the defendant, including a disinterested witness present in the courtroom awaiting disposition of his traffic infraction. That specification, therefore, should not be sustained.

With respect to Charge IV, I concur in the majority opinion.

For his injudicious and intemperate conduct on the two separate occasions mentioned (Charge I, specifications [d], [e]; Charge III, specification [a]) and for the exacting of improper charitable contributions from defendants appearing before him in order for them to obtain a dismissal or a conditional discharge (Charge IV), respondent should be severely censured.

Presiding Judge Markewich and Judges Suozzi and Mullen concur in Per Curiam opinion; Judge Cardamons concurs in a separate opinion in which Judge Moule concurs.

State of New York Court on the Judiciary

At a Court on the Judiciary for the State of New York held at Courthouse of the Appellate Division, First Department, New York, New York, on the 31st day of October A. D. 1977

Present: Honorable Arthur Markewich, Presiding Honorable Joseph A. Suozzi Honorable Milton Mollen Honorable Reid S. Moule Honorable Richard J. Cardamons

ORDER OF CENSURE In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Hubert Richter a Judge of the City Court of Kingston, Third Judicial Department

The Honorable Charles D. Breitel, Chief Judge of the Court of Appeals, having convened the Court on the Judiciary in the above-entitled matter in accordance with the provisions of section 22 (subd d) of article VI of the New York State Constitution; and, in accordance with section 22 (subd b) of article VI of the New York State Constitution, he having appointed as members of the court The Honorable Arthur Markewich, Associate Justice of the Appellate Division of the Supreme Court, First Department, as Presiding Officer of the court; The Honorable Joseph A. Suozzi and Milton Mollen, Associate Justices of the Appellate Division of the Supreme Court, Second Department; and The Honorable Reid S. Moule and Richard J. Cardamons, Associate Justices of the Appellate Division of the Supreme Court, Fourth Department; and,

The court having appointed The Honorable Frank J. Pino, Justice of the Supreme Court, to hear and report on the above-entitled matter; and Justice Pino, after holding hearings and taking testimony and considering the briefs submitted by counsel, having filed his report; and counsel appointed to conduct the proceeding as well as counsel for the respondent having each moved to affirm in part and to disaffirm in part the report of the Referee, finding that Charges I (a), (b) and (c), Charge II, Charge III and Charge IV (specifications 1, 2, 5, 6) had not been sustained and that Charges I (d) and (e), and Charge IV (specifications 3, 4) had been sustained, it is now

Ordered that the findings in the report of the Referee be affirmed with the exception that the court finds that the confrontation charged in specification (d) of Charge I was verbal, not physical; that specification (a) of Charge III, with the omission of the term "angrily”, was sustained; and it appearing

(1) That on February 27, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority in that, in connection with the sentencing of three defendants, Nicholas Malanios, Thomas Silva and Michael Traficante, he engaged in an angry, verbal confrontation with Nicholas Malanios and stated and otherwise expressed his intention and willingness to engage in a fight with Nicholas Malanios; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1 and 3 (subd A);

(2) That on March 1, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority while arraigning a defendant, John Schiskie, in that he left the Bench, approached the defendant and demanded an apology from the defendant who was on the floor in the custody of three law enforcement officers; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1 and 3 (subd A); and

(3) That during the years 1970 to 1975, Hubert Richter, a Judge of the City Court of Kingston, failed to comply with or faithfully apply, the rules and procedures prescribed by law with respect to defendants appearing before him, in that he set conditions, issued directives and imposed sentences which were improper and unauthorized by law, and accepted guilty pleas and thereafter improperly dismissed the charges; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (subd [a]) and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1, 2 (subd A) and 3 (subd A). More specifically, Hubert Richter, a Judge of the City Court of Kingston, in the following cases, ordered, directed or sentenced the defendants to make charitable contributions, after which the charges were dismissed or the defendants were conditionally discharged:

People v Jo Ann Womack People v Peter Fisher People v Gene L. Curtis People v Charles Peterson People v Daniel Lasher People v Louis Duffner People v Eddie Adams People v Dolores A. Walsh People v Emanuel McLeod People v Peter Tiano, Jr. People v James S. Wittaker People v Raymond J. Ritenberger People v John Palumbi;

And due deliberation having been had and the court having rendered its opinion in writing, it is

Ordered and adjudged that the said Judge Hubert Richter of the City Court of Kingston, Third Judicial Department, be severely censured. [Presiding Judge Markewich, and Judges Suozzi and Mollen concur in Per Curiam opinion; Judge Cardamons concurs in a separate opinion in which Judge Moule concurs.]

Enter:

Arthur Markewich (Signed) Arthur Markewich Presiding Officer Court on the Judiciary

Attested To: Hyman W. Gamso (Signed) Hyman W. Gamso Clerk of the Court on the Judiciary


source: Caselaw Access Project

author:
      Per Curiam.

      Per Curiam.

license: Public Domain

text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro, Justice of the Supreme Court, Second District.

      State of New York Court on the Judiciary
    At a Court on the Judiciary for the State of New York held at Albany, New York on the eighth day of October A.D. 1976.
    Present: Honorable Charles D. Breitel, Presiding. Honorable Matthew J. Jasen Honorable Theodore R. Kupferman Honorable Joseph F. Hawkins Honorable Louis M. Greenblott Honorable Richard D. Simons
    ORDER In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro Justice of the Supreme Court, Second District
    A motion having been made on behalf of respondent, Justice Frank Vaccaro, for alternative relief, as follows: (1) reargument of the order of this court dated September 7, 1976; or (2) vacatur and dismissal of these proceedings; or (3) appointment of a new Court on the Judiciary by the Chief Judge in accordance with article VI (§ 22, subd b) of the New York State Constitution, as amended and effective September 1, 1976; or (4) appointment of a new panel of Judges for the Court on the Judiciary under former section 22 of article VI of the New York State Constitution; and papers having been submitted in support of such motion and in opposition thereto, it is, upon due deliberation:
    Ordered, that respondent’s motion be and the same hereby is granted, in the exercise of discretion and in the interests of justice, to the extent only of the relief requested by respondent in paragraph 3 of his notice of motion, denominated as item 3 above, and the motion is otherwise denied. Joseph W. Bellacosa (Signed) Joseph W. Bellacosa Clerk of the Court on the Judiciary

      On October 12, 1977 Chief Judge Breitel designated the Justices for the Court on the Judiciary.

    Re: In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro, Justice of the Supreme Court, Second District.
    Pursuant to the authority conferred on me by article VI (§ 22, subd b) of the New York State, Constitution, as amended effective September 1, 1976, and in conformance with an order of the Court on the Judiciary in this matter dated October 8, 1976, I hereby appoint and designate The Honorable Arthur Markewich (an Associate Justice of the Appellate Division, First Judicial Department) as Presiding Justice of this Court on the Judiciary; I also appoint the following as Associate Justices of this Court on the Judiciary: The Honorable T. Paul Kane and Robert G. Main (Associate Justices of the Appellate Division, Third Judicial Department) and The Honorable Richard J. Cardamons and Reid S. Moule (Associate Justices of the Appellate Division, Fourth Judicial Department).
    Charles D. Breitel (Signed) Charles D. Breitel Chief Judge of State of New York
   On September 26, 1977 the following opinion of the Court on the Judiciary was handed down:

State of New York Court on the Judiciary

In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro Justice of the Supreme Court, Second District

Per Curiam.

On May 11, 1976 a proceeding against respondent, a Justice of the Supreme Court in the Second Judicial District, was commenced by order of the Court on the Judiciary. Subsequently, a new Court on the Judiciary was appointed to conform to section 22 of article VI of the New York Constitution. The matter was referred to a Referee to conduct a hearing and make findings with respect to the charges against respondent. A hearing was held before the Referee from March 7 through March 29, 1977.

Fourteen acts of judicial misconduct, contained in 11 charges, were alleged by the State Commission on Judicial Conduct against respondent. The Referee sustained four of the charges: Charge VIII (a) (the acceptance of a weekend stay at Kutsher’s Country Club for respondent and his wife paid by the law firm of respondent’s long-time close personal friend); Charge VII (registering under the name and address of a partner of that same law firm without that person’s permission, thereby concealing respondent’s identity); Charge X (failing to disqualify himself from cases in which his law secretary’s law partner appeared in respondent’s court on behalf of one of the parties); and Charge XI (failing to disqualify himself from presiding over a nonjury Small Claims trial in which his close friend was a party defendant).

Based upon an examination of both the transcript of testimony and Referee’s report, we confirm the Referee’s findings which were established by a fair preponderance of the credible evidence. As to the charges reported as not sustained, we agree with the Referee that the evidence presented on each was insufficient. Furthermore, we confirm the Referee’s procedural rulings and find that respondent was accorded due process throughout. The affirmative defenses are without merit and are dismissed. The interim procedural rulings of the Referee are confirmed. The sole question remaining for our consideration is the sanction to be imposed.

In order to determine the appropriate sanction, it is necessary to examine briefly the confirmed charges. In connection with Charge VIII (a) we note that respondent exercised poor judgment and engaged in injudicious conduct. Although there is no evidence that respondent gave either his long-time friend, Gerald Garson, or his law firm special favor or treatment in any matter before him, despite the long-standing intimate and personal social relationship with his long-time friend, the Referee found that it was injudicious of respondent to spend a weekend with his wife at a hotel as a guest of a law firm because such is beyond the permissible ordinary social hospitality permitted by the Code of Judicial Conduct (Canon 5, subd C, par [4], cl [b]). With respect to Charge VII, it is clear that respondent signed Louis Goldberg’s name when registering at Kutsher’s at the behest of one of Goldberg’s partners. The Referee found, however, that although respondent may not have intended to conceal his identity, he did create the objective impression on the records of the hotel that he was Louis Goldberg which was both injudicious and in violation of the Canons of Judicial Ethics (Canons 1, 4, 13).

Charge X related to conferences or settlements in cases where Robert G. Stern, a law partner of respondent’s law secretary, appeared before respondent. The Referee found that respondent participated in only a handful of such cases over a three-year period while he was assigned as one part of a "troika” which handled thousands of cases. It must be observed that the settlement procedures described were carried on virtually publicly and mostly by the same groups of lawyers for both sides, long accustomed to dealing with each other in a mass effort to dispose of great numbers of calendar clogging cases in what might be characterized as a settlement mill. In the circumstances there could have been no opportunity, even assuming such a desire, for anything untoward to have taken place. Nevertheless, it was an exercise of poor judgment for respondent to have presided in these cases. In view of the large number of cases presented daily to respondent, the Referee found respondent’s conduct here "excusable”. Nevertheless, the Referee did find a technical violation of the Canons, even though no injustice of any kind was shown to have occurred.

Finally, on Charge XI, although it was a judicial impropriety and a violation of the Canons of Judicial Ethics for respondent to sit on a case where his long-time friend appeared as a party defendant in a nonjury Small Claims Part, the case involved only a $106.81 claim and there were no allegations or evidence that the defendant received any preferential treatment or that injustice was perpetrated. However, the improper act did, as we have said, convey the impression of impropriety, and it is the primary basis for the sanction we impose.

We find no evidence in this record of corruption, general neglect of duty, acts violative of law inspired by self-interest, oppressive and arbitrary conduct, reckless disregard of litigants’ rights or any finding that respondent’s future retention of office is inconsistent with the fair and proper administration of justice in this State (Friedman v State of New York, 24 NY2d 528, 540). Nor is there evidence of a "repeated and unrelenting display of unjudicial temperament” (Matter of Waltemade, 37 NY2d [a], [hhh]). Thus, we conclude that there is insufficient evidence to indicate that respondent lacks the ability or fitness to perform the duties imposed upon him as a Supreme Court Justice. Accordingly, removal is unwarranted.

Nevertheless, with respect to the charges sustained and confirmed, respondent’s conduct was injudicious and improper and, as such, constituted a serious transgression of the Code of Judicial Conduct and the Canons of Judicial Ethics. High standards of conduct must be observed by judicial officers so that the integrity and independence of the judiciary will be preserved. A Judge’s official conduct should be free from the appearance of impropriety in his personal behavior on the Bench and his conduct in everyday life should be beyond reproach. He may engage in social and recreational activities so long as these do not detract from the dignity of his office or interfere with the performance of his judicial duties. Furthermore, neither a Judge nor a member of his family residing in his household should accept a gift or favor from any attorney or from any person having or likely to have any official transaction with the court in which he presides, except for reasonable exchanges incident to family, social or recretional relationships or activities.

We conclude, therefore, that respondent’s conduct violated the Code of Judicial Conduct (Canons 1, 2, 3, subd [C], par [1]; 5, subd A; 5, subd C, pars [1], [4], [5]), the Canons of Judicial Ethics (Canons 1, 4, 13, 32) and the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York (22 NYCRR 20.6 [now 20.4], 33.5 [c] [3]). Under these circumstances, respondent should be suspended without pay (Matter of Pfingst, 33 NY2d [a]) for a period of six months commencing from the date of the order to be entered on this determination.

Presiding Officer Markewich and Judges Moule, Cardamone, Kane and Main concur in Per Curiam opinion.

State of New York Court on the Judiciary

At a Court on the Judiciary for the State of New York held at Courthouse of the Appellate Division, First Department, New York, New York on the 26th day of September A.D. 1977

Present: Honorable Arthur Markewich, Presiding. Honorable T. Paul Kane Honorable Robert G. Main Honorable Reid S. Moule Honorable Richard J. Cardamone

ORDER OF SUSPENSION In the Matter of the Proceeding pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro Justice of the Supreme Court, Second District

The Honorable Charles D. Breitel, Chief Judge of the Court of Appeals, having convened the Court on the Judiciary in the above-entitled matter, in accordance with the provisions of section 22 (subd d) of article VI of the New York State Constitution; and, in accordance with section 22 (subd b) of article VI of the New York State Constitution, he having appointed as members of the court The Honorable Arthur Markewich, Associate Justice of the Appellate Division of the Supreme Court, First Department, as Presiding Officer of the court; The Honorable T. Paul Kane and Robert G. Main, Associate Justices of the Appellate Division of the Supreme Court, Third Department; and The Honorable Reid S. Moule and Richard J. Cardamone, Associate Justices of the Appellate Division of the Supreme Court, Fourth Department; and,

The court having appointed The Honorable Joseph Di Fede, Justice of the Supreme Court, to hear and report on the above-entitled matter; and Justice Di Fede after holding hearings and taking testimony and considering the briefs submitted by counsel, having filed his report; and counsel appointed to conduct the proceeding as well as counsel for the respondent having each moved to affirm in part and to disaffirm in part the report of the Referee finding that Charges I, II, III, IV, V, VI, VIII (b), (c) and (d), and IX had not been sustained and that Charges VII, VIII (a), X, as amended, and XI had been sustained, it is now

Ordered that the findings in the report of the Referee be affirmed; and it appearing

(1) That on or about July 14-16, 1972, Frank Vaccaro, then a Judge of the Civil Court, Kings County, in violation of the Canons of Judicial Ethics, Canons 1, 4 and 13, signed the names, "Mr. & Mrs. Louis Goldberg”, and the address, "26 Court Street, Brooklyn, New York”, on a registration card at Kutsher’s Country Club, without the permission of Mr. and Mrs. Louis Goldberg, thereby concealing his presence as a guest of the law firm of Gerberbaum, Garson & Goldberg;

(2) That Frank Vaccaro, then a Judge of the Civil Court, Kings County, in violation of the Canons of Judicial Ethics, Canons 1, 4 and 32, the Code of Judicial Conduct, Code Canons 1, 2, 5 (subd A), 5 (subd C, pars [1], [4], [5]), and the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 20.6 (now 20.4 as of Jan. 1, 1974) and 33.5 (c) (3), accepted as a gift from an attorney, Gerald Garson, Esq., or his firm, a weekend stay for Judge Vaccaro and his wife at Kutsher’s Country Club for the period July 14-16, 1972, having a value of $178.02;

(3) That between 1970 and 1973, Frank Vaccaro, then a Judge of the Civil Court, Kings County, in violation of the Canons of Judicial Ethics, Canons 1, 4 and 13, and the Code of Judicial Conduct, Code Canons 1, 2 and 3 (subd C, par [1]), failed to disqualify himself from presiding over cases in which Robert T. Stern, Esq., and Anthony Genovisi, Esq., represented one of the parties in such cases; and

(4) That on March 5, 1973, Frank Vaccaro, then a Judge of the Civil Court, Kings County, in violation of the Canons of Judicial Ethics, Canons 1, 4 and 13, and the Code of Judicial Conduct, Code Canons 1, 2 and 3 (subd C, par [1]), failed to disqualify himself from presiding over the Small Claims Court trial of Foster v Garson, in which Gerald Garson, Esq., was a party defendant;

And due deliberation having been had and the court having rendered its opinion in writing, it is ordered and adjudged that the said Justice Frank Vaccaro be and he hereby is suspended from service as a Justice of the Supreme Court without pay for a period of six months from the date of this order.

Enter:

Arthur Markewich (Signed) Arthur Markewich Presiding Officer Court on the Judiciary

Attested To: Hyman W. Gamso (Signed) Hyman W. Gamso Clerk of the Court on the Judiciary

On November 10, 1977 the following opinion of the Court on the Judiciary was handed down:

State of New York Court on the Judiciary

Present: Honorable Arthur Markewich, Presiding Honorable T. Paul Kane Honorable Robert G. Main Honorable Reid S. Moule Honorable Richard J. Cardamons

In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro Justice of the Supreme Court, Second District

Per Curiam.

Motion to modify the sanction imposed upon respondent and related relief denied in all respects, without costs. We deem oral argument, as requested, unnecessary and application therefor is denied.

State of New York Court on the Judiciary

At a Court on the Judiciary for the State of New York held at Courthouse of the Appellate Division, First Department, New York, New York on the 10th day of November A.D. 1977.

Present: Honorable Arthur Markewich, Presiding Honorable T. Paul Kane Honorable Robert G. Main Honorable Reid S. Moule Honorable Richard J. Cardamons

ORDER In the Matter of the Proceeding pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro Justice of the Supreme Court, Second District

The respondent in the above-entitled proceeding having moved this court for an order reducing the disciplinary punishment of the respondent to the period of suspension which has already transpired.

Now, upon reading and filing the order to show cause dated November 17, 1977, the affidavit of Honorable Frank Vaccaro, sworn to November 17, 1977, in support of the motion, and the affidavit of Gerald Stern, sworn to November 27, 1977, in opposition thereto, and due deliberation having been had, and the court having rendered its decision in writing, it is

Ordered, that the motion be denied in all respects.

Enter:

Arthur Markewich (Signed) Arthur Markewich Presiding Officer Court on the Judiciary

Attested To: Hyman W. Gamso (Signed) Hyman W. Gamso Clerk of the Court on the Judiciary


author: Cooke, J. Fuchsberg, J. (dissenting).

text:
    In the Matter of Robert H. Rapp, Respondent, v New York City Employees’ Retirement System et al., Appellants.
    Argued March 24, 1977;
    decided June 7, 1977

      W. Bernard Richland, Corporation Counsel (Renee Modry and L. Kevin Sheridan of counsel), for appellants.

      Thomas J. O’Brien for respondent.
   Cooke, J.

After a hearing, the board of the New York City Transit Authority unanimously voted to remove petitioner, on the ground of misconduct, from his position as Chief of Transit Police, dismissing him from the Transit Authority, effective March 11, 1975. Petitioner’s dismissal was upheld by the courts (51 AD2d 551, mot for lv to app den 38 NY2d 712). Prior to that date, however, petitioner had filed an application for service retirement with the New York City Employees’ Retirement System, effective March 13, 1975. Since petitioner was not "in city-service” on March 12, 1975, his application, made pursuant to section B3-36.3 (subd h, par [4]) of the Administrative Code of the City of New York, was rejected, with petitioner being advised that the only benefit to which he was entitled at that time was a refund of his accumulated deductions contributed to the plan.

Subsequently, petitioner submitted an application for military veterans retirement pursuant to subdivision 2 of section B3-36.0 of the Administrative Code. This application, filed on June 11, 1975, was rejected on the ground that, upon his dismissal from the Transit Authority on March 11, 1975, petitioner ceased to be a "member” of the New York City Employees’ Retirement System. Petitioner thereafter commenced an article 78 proceeding seeking to annul the determination of respondents denying his applications for retirement. Special Term dismissed the petition. The Appellate Division in turn reversed, upholding the application to the extent of annulling the denial of retirement benefits under subdivision 2 of section B3-36.0 and granting the application therefor.

There should be an affirmance. A reading of the pertinent statutes can yield but one conclusion—that the Appellate Division determination, unanimously arrived at, granting petitioner’s application for retirement benefits under subdivision 2 of section B3-36.0 of the Administrative Code, was legally correct.

Subdivision 2 of section B3-36.0 of the Administrative Code, which section is entitled "Retirement; minimum ages for service retirement”, provides in part: "2. Notwithstanding any other provisions of this section or the provisions of any other section of the code to the contrary, a member who is an honorably discharged member of any branch of the armed forces of the United States, having served as such during the time of war and who has attained the age of fifty years, may retire upon his own request upon written application to the board setting forth at what time not less than thirty days subsequent to the execution and filing thereof his desires to be retired, provided that such member at the time so specified for his retirement shall have completed at least twenty-five years of allowable service” (emphasis supplied). Unlike subdivision 1, which expressly applies to a "member in city-service” and is therefore inapplicable to this discussion, as petitioner has conceded, subdivision 2 requires that an applicant be "a member” of the retirement system. Subdivision 2 does not state, by word or by inference, that such member be "in city-service” at the time of retirement.

A "member”, as used in subdivision 2 is defined in subdivision 6 of section B3-1.0 of the code: " 'Member’ shall mean any person included in the membership of the retirement system as provided in section B3-3.0 of the code.” Section B3-3.0, with an exception not relevant here, requires, generally, that "[a]ll persons in city-service” shall be members of the retirement system. These sections, B3-1.0 and B3-3.0, relate to the method of acquiring membership in the retirement system and have nothing to do with the bases on which termination is predicated.

Termination of membership in the retirement system is provided for in section B3-31.0 of the code, a section entitled "Termination of membership; miscellaneous”. Because of certain arguments advanced by the dissent, it is salutary to set forth the entire contents of that section, viz.:

"Membership in the retirement system shall cease upon the occurrence of any one of the following conditions:
"1. When the time out of city-service, other than time on a preferred civil service list or other than time in the armed forces of the United States in world war II of any member who has resigned or has been separated from the service through no fault of his own, and who has total service of less than twenty-five years, shall aggregate more than five years in any period not exceeding ten consecutive years since he last became a member.
"2. When the time out of city-service of any member, other than time on a preferred civil service list or other than time in the armed forces of the United States in world war II, who has resigned or has been separated from the service through no fault of his own, before reaching the age of retirement, and who has total service of twenty-five years, or more, shall aggregate more than ten years.
”3. When any member shall have withdrawn more than fifty per centum of his accumulated deductions.
"4. When any member shall have withdrawn the cash benefit provided by section B3-35.0 of the code.
"5. When any member shall die.
"6. When any member shall be retired on a pension.
"7. The provisions of paragraphs 1 and 2 of this section with respect to time spent in the armed forces of the United States in world war II shall not apply to county employees.”

It should be noted that, under the listed termination reasons of section B3-31.0, membership in the system is not terminated by dismissal from city service, nor can a termination for such a cause be legitimately inferred. Membership continues until the happening of one of the six specified events—none of which occurred here. The only reasonable construction which can be accorded the section is that, if the Legislature had intended to include other grounds for termination of membership, it would have done so. This court has no right to engraft other terms, other reasons, into the statute.

It is urged that "the literal language of the statute itself makes clear that * * * a 'member’ is entitled to a pension only if he 'retire[s] upon his own request’ ” (p 8). It is then noted that "petitioner’s severance was not on his own initiative, but as a result of a discharge” (id.). But, the quoted portion of the statute can hardly be considered dispositive of the question before us. Although there is no legislative history to explain this language, it is not unlikely that it was included to prevent a construction to the effect that a veteran not having so requested could be retired merely because he attained the age of 50 (cf. People ex rel. O’Brien v Scannel, 53 App Div 161, affd 164 NY 572). In any event, in light of the detailed nature of the retirement provisions, it is difficult to imagine that the Legislature would include a basis for disqualifying a veteran from his pension in the manner suggested to the contrary. Indeed, since in order to qualify the statute requires one to be "an honorably discharged member of any branch of the armed services” (emphasis added), the Legislature should be expected to have specifically included a requirement that a member taking advantage of this provision also be one who had not been discharged for misconduct, if that is what was intended. Furthermore, any reliance on the so-called "legislative history” of subdivision 2 of section B3-36.0 is misplaced because it is not revealing or determinative as to the precise problem at hand.

The fact that "retirement” has been distinguished from "discharge” in other contexts (see, e.g., Jacobs v New Jersey State Highway Auth., 54 NJ 393, 397, quoted from by the dissent at p 8) is beside the point. In that case, the distinction was made because it was argued that the power to discharge an employee empowered the authority to force an early retirement (see p 401). The question here is whether the Legislature intended a retirement benefit conferred on certain veterans to be enjoyed only by those veterans who had not been discharged for misconduct. In this respect, the statute very specifically describes circumstances whereby membership in the pension system is terminated, and, for whatever reason, the Legislature has not included a discharge for misconduct as one of those circumstances. The Legislature has drafted a statute indicating an intention that one who served honorably in the service during a war should be entitled to a pension even under these circumstances. The statutory framework, properly read, admits of no other interpretation, and the court should not struggle for legislative intent simply because it is difficult to accept what appears to be an undesirable result.

This writing is obviously not intended to suggest any desire to assist an official or employee who has been found guilty of misconduct by his or her administrative agency. It is to point out that the matter should be solved by reference to the statutes, regardless of how unappealing the result may be. We should be constrained to follow the clear pattern of the statutes, since "courts, it is submitted, are not free to devise their own rules in a statutory field merely because their sense of justice impels them” nor do courts "sit as councils of revision on the legislative product” (see Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 436-437 [Breitel, J., dissenting]). We sit in a judicial role and not as legislators (see Montgomery v Daniels, 38 NY2d 41, 68 [Fuchsberg, J., concurring]).

Since petitioner has met all of the statutory requirements ([1] a member of the retirement system, [2] who is an honorably discharged member of the armed forces, [3] having served as such in time of war, [4] who has attained the age of 50 years, and [5] who has completed at least 25 years of allowable service), he has the legal right to his pension under subdivision 2 of section B3-36.0 of the Administrative Code. If there is to be a change in the law, if the preference accorded such veterans is to be limited, it should come from the Legislature itself.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Fuchsberg, J. (dissenting).

During the course of the departmental and Grand Jury investigations which preceded his dismissal, petitioner applied posthaste for a service retirement pension (Administrative Code of the City of New York, § B336.3, subd h, par [4]). However, completion of the hearings resulted in dismissal taking place two days before the retirement could have been effective. As a result, the Board of Trustees of the New York City Employees’ Retirement System thereupon denied the application on the ground that petitioner, then no longer "in city service”, was not a member of the retirement system as of the date when his application could first be acted upon. For the same reason, when he later applied anew, this time for a military veteran’s retirement pension (§ B3-36.0, subd 2), the second application was rejected as well.

The petitioner now having abandoned all but the claim for a military veteran’s pension, we need direct our attention only to that matter.

The operative statutory provision is subdivision 2 of section B3-36.0 which provides, in pertinent part, as follows: "Notwithstanding any other provisions of this section or the provisions of any other section of the code to the contrary, a member who is an honorably discharged member of any branch of the armed services of the United States, having served as such during the time of war and who has attained the age of fifty years, may retire upon his own request upon written application to the board setting forth at what time not less than thirty days subsequent to the execution and filing thereof his desires to be retired, provided that such member at the time so specified for his retirement shall have completed at least twenty-five years of allowable service.” (Emphasis supplied.)

Petitioner’s contention is that, as a veteran, under the quoted section he remained a "member” of the system despite his dismissal and, since he fits within its age, years of civil service employment and military service requirements, he is entitled to the pension notwithstanding his discharge.

However, unless one strains, as the majority appears to be doing by forcing inferences from a maze of unrelated sections of the statutory scheme, neither logic nor law supports petitioner’s position. For the literal language of the statute itself makes clear that, even assuming, arguendo, that petitioner remained a "member” of the retirement system (see § B3-31.0), a "member” is entitled to a pension only if he "retire[s] upon his own request”. And the unvarnished fact is that petitioner’s severance was not on his initiative, but as a result of a discharge following findings that he was guilty of gross malfeasance.

Dismissal for grievious misconduct cannot be equated with voluntary retirement. "Retirement from employment has a connotation different from discharge. The former ordinarily signifies voluntary withdrawal, the latter compulsory dismissal. See Brown v. Little, Brown & Co., 269 Mass. 102, 168 N. E. 521, 66 A.L.R. 1284 (1929); People ex rel. Tims v. Bingham, 166 N. Y. S. 28 (Sup. Ct. Spec. Term 1906)” (Jacobs v New Jersey Highway Auth., 54 NJ 393, 397).

Our analysis is, of course, based upon the language of the statute and not upon any personal view as to the policy it expresses. Where a statute is as unambiguous as this one, it is a cardinal rule of construction that it "cannot be tortured so as to achieve a result which is preposterous * * * nor should it be construed as to work a public mischief’ (Matter of Wulff v Teachers' Retirement Bd. of City of N.Y., 27 AD2d 929, affd 21 NY2d 802). Instead, petitioner would have us " 'construe’ language into patently not meaning what the language is patently trying to say” (Llewellyn, Book Review, 52 Harv L Rev 700, 702). This we may not do.

It is also axiomatic that a civil service pension is not a gratuity but an important right earned by an employee. The fidelity with which a civil servant is expected to perform his or her services is not an inconsequential consideration for the city’s undertaking of this obligation (Hoyt v County of Broome, 285 NY 402, 406; see, also, Matter of Giannettino v McGoldrick, 295 NY 208, 212, and cases cited therein). It is far more than compensation for services rendered. Only recently we have had occasion to repeat that it also is intended to act as a "reward for faithfulness to duty and honesty of performance” (Matter of Pell v Board of Educ., 34 NY2d 222, 238).

Furthermore, if subdivision 2 of section B3-36.0 had intended to create an exception from a principle so important to integrity in government service, it surely would have said so. However, its legislative history does not contain a hint of any intention to exempt veterans who are New York City employees from ineligibility for a retirement pension after dismissal for misconduct. Its only purpose, expressly described by the Mayor of the City of New York upon whose recommendation it was enacted, was to permit a war veteran who had completed 25 years of service to retire at age 50 (NY Legis Ann, 1947, pp 37-38). No one can possibly suggest that the very important benefit so provided for these specially favored employees was intended as an invitation to, or condonation of, betrayal of their public trust. To now engraft a hitherto unwritten immunity from the consequences of such disloyalty is, to put it too mildly, strange, strange indeed.

Accordingly, the order of the Appellate Division should be reversed and the judgment of Special Term reinstated.

Chief Judge Breitel and Judges Gabrielli and Jones concur with Judge Cooke; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judges Jasen and Wachtler concur.

Order affirmed.

       The first sentence of subdivision 1 of section B3-36.0 of the Administrative Code provides: "1. Any member in city-service may retire upon written application to the board setting forth at what time, not less than thirty days subsequent to the execution and filing thereof, he desires to be retired, provided that such member at the time so specified for his retirement shall have attained the minimum age of retirement provided for the group of which he shall be a member at such time” (emphasis supplied).

        Matter of Keogh v Wagner (20 AD2d 380, affd 15 NY2d 569) is of no assistance to the petitioner. In that case, the majority at the Appellate Division declined to rule on the issue before us now and this court’s affirmance, without opinion, certainly cannot be regarded as an indorsement of the concurring opinion (see Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291, 295; Rogers v Decker, 131 NY 490).


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Robert Lindsay, Respondent.
    Argued May 2, 1977;
    decided June 9, 1977

      Mario Merola, District Attorney (Alan Seth Adolph of counsel), for appellant.

      Harry W. Turkel for respondent.
   Wachtler, J.

On December 27, 1972 two men—one armed with a knife and the other with a gun—entered a Bronx bar. They took money from the cash register and from the three occupants: the bartender, Patrick Kennedy, and two patrons, Anthony Vitale and Peter Vandenberg. During the course of the robbery Vitale was shot and killed. In February, 1973 the defendant and Theodore Haywood were arrested and charged with murder, robbery and possession of a weapon.

The defendant and Haywood were jointly tried before a jury in December of 1975. At the trial Kennedy and Vandenberg identified the defendants as the two men who had held up the bar three years previously. They identified Haywood as the man with the gun and Lindsay as the man who had held the knife. There was also evidence that fingerprints belonging to Haywood were found at the scene on certain bottles which the witnesses said had been handled by the man with the gun.

On cross-examination by Lindsay’s attorney, Kennedy stated that approximately six months after the robbery a Black man had come into the bar and showed him a picture. Kennedy was not asked at that time whether he had identified the picture. However during Lindsay’s case defense counsel called Linwood Lewis, a private investigator, who stated that he had obtained the picture of a man who had died in early 1973 and that he had shown the picture to Kennedy twice during the summer of 1973 and that on both occasions Kennedy identified it as a picture of the man who had held the knife during the robbery.

On rebuttal, and over objection, the prosecutor recalled Kennedy and Vandenberg to the stand. Kennedy admitted that Lewis had produced a photograph for his inspection but he claimed that he absolutely refused to identify it. Both Kennedy and Vandenberg also testified that after the robbery they had made a composite sketch of Lindsay with the assistance of a police artist, and later, during February of 1973, they identified both Lindsay and Haywood from a photographic lineup. The photographic lineup and the composite sketch were then introduced into evidence as part of the People’s case.

The question on this appeal by the People is whether the court erred in permitting the rebuttal evidence. The prosecutor of course was entitled to recall Kennedy to have him disclaim Lewis’ testimony by stating that he had not in fact identified the photograph which Lewis had displayed to him. It is settled however that a witness may not testify regarding a photographic identification of the defendant, nor may he refer to a composite sketch (see, e.g., People v Griffin, 29 NY2d 91; People v Caserta, 19 NY2d 18). It may be said that the defendant invited this response when he called Lewis to show that Kennedy had identified another man from a photograph six months after the crime. Under these unusual circumstances it might have been proper to permit Kennedy to testify that he had previously assisted in making a composite sketch and then picked the defendant out of a photographic lineup within two months of the incident. There was however no basis for permitting Vandenberg to testify that he, Vandenberg, had also done so in view of the fact that Vandenberg’s credibility had not been attacked in this manner. Thus, even under the limited exception urged by the People, it would have been error to permit Vandenberg to testify as he did on rebuttal.

Actually the record shows that the overriding purpose and effect of the rebuttal evidence was broader than is now suggested and was in fact used to resolve a dilemma which the People themselves had created. Although the defendants were taken into custody within two months of the incident, the People had never held a corporeal lineup. They chose instead to show the witnesses a photographic array, and then at the trial expressly used it to fill the gap when it was noted that three years had elapsed between the robbery and the witnesses’ identification of the defendants.

The People could have overcome this difficulty by taking the time or the risk of holding a corporeal lineup during the nearly three years the defendants were waiting trial (CPL 60.30). Indeed the defendants were in custody when the photographic identification was made. Perhaps the photographic array was more convenient than a full corporeal lineup, but, as noted, it is settled that the convenience of the People cannot outweigh the prejudice to the defendant inherent in such proof (People v Caserta, supra).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

Order affirmed.


author: Jasen, J.

text:
    Roswell Martin, Plaintiff, and Elizabeth A. Martin, Appellant, v City of Albany et al., Respondents.
    Argued April 27, 1977;
    decided June 9, 1977

      Jonathan P. Harvey for appellants.

      John E. Roe, Corporation Counsel (Joseph V. Zumbo of counsel), for respondents.
   Jasen, J.

This action, insofar as pertinent on appeal, is for malicious prosecution. The jury awarded plaintiff Elizabeth Martin $1,000 in compensatory and $4,000 in punitive damages against the City of Albany and its police officer, Patsy Deso. The Appellate Division reversed the judgment, on both the law and the facts, and dismissed the complaint. There are two issues presented for our consideration. We must decide whether the evidence was legally sufficient to sustain the jury verdict, and, if it was, whether the Appellate Division properly dismissed the complaint on the facts.

According to the evidence adduced by the plaintiff at trial, at approximately 5:40 p.m. on January 10, 1973, she and her husband Roswell were returning home in their car from a visit with a sick friend at the Albany Medical Center. Their homeward route took them along Central Avenue in the City of Albany. While stopped at a traffic signal at the corner of Central Avenue and Quail Street, Mrs. Martin noticed that the vehicle of an acquaintance, who had a history of drinking problems, had been flagged over to the side of the road by a police officer. This acquaintance recognized the Martins, rolled down her car window, and asked Mrs. Martin to drive her car home. After the light had changed, the Martins drove a short distance, parked their car, and walked back to the corner. Mrs. Martin told the police officer that she did not wish to "get involved in this”, but asked whether there was anything she could do to help the woman. The officer replied, "[w]ell not for her. She is going down for the test.” Thereupon, Mrs. Martin offered to drive the woman’s car home for her. The policeman at first granted permission, but then suggested that they await the arrival of another officer. When this second officer, subsequently identified as Patsy J. Deso, appeared on the scene, he assertedly approached Mrs. Martin, put his finger under her nose, and demanded to know whether she was involved in the incident. Mrs. Martin said no, but before she could explain her presence at the scene, Officer Deso allegedly pushed her backwards. The officer declined a request to identify himself and, instead, remarked "I told you to get on the sidewalk.” He twisted Mrs. Martin’s hand behind her back, forced her onto the sidewalk, pushed her, and then placed her under arrest. Mr. Martin then intervened to protect his wife; he told the officer not to "manhandle” his wife and put his hands out against the officer. Officer Deso released Mrs. Martin momentarily, grabbed the husband and placed him under arrest also. Mrs. Martin and her acquaintance were put in a paddywagon and driven to the police station. Mr. Martin was first frisked and then placed in a second police car for the trip to the station house.

The Martins were charged, by an information filed by Officer Deso, with violating section 195.05 of the Penal Law, in that they obstructed the administration of law by interfering with an arrest. Officer Deso, in his version of the incident, contended that Mrs. Martin had several times refused his request to stand on the sidewalk and that Mr. Martin had endeavored to block the arrest of his wife. The Martins were released on cash bail and arraigned the following morning. After a two-day jury trial in the Police Court of the City of Albany, the Martins were acquitted of the criminal charges.

Mrs. Martin commenced an action against the City of Albany and Officer Deso for unlawful arrest, assault and malicious prosecution. Her husband sued for false arrest and malicious prosecution. After a trial, the jury found no cause of action on the husband’s two claims and on the wife’s assault claim. However, Mrs. Martin was awarded $15,000 in compensatory damages for unlawful arrest, $1,000 compensatory damages for malicious prosecution, and $4,000 punitive damages for malicious prosecution.

Both sides took appeals to the Appellate Division. The court affirmed the judgment in favor of the defendants on the husband’s claim and directed a new trial on the issue of damages for the wife’s unlawful arrest unless she stipulated to reduce the verdict to $5,000. She has since so stipulated. The court dismissed the wife’s cause of action for malicious prosecution, with two Justices dissenting. The majority stated that "[o]n the instant record, even assuming arguendo a lack of probable cause and thus an inference of malice, the finding of malicious prosecution is against the weight of the evidence. There is absolutely no showing of malice on the part of Officer Deso. Accordingly, the claim of malicious prosecution of Elizabeth Martin must be dismissed”. (51 AD2d 596, 597.)

Mrs. Martin has appealed only from so much of the Appellate Division order as dismissed her claim for malicious prosecution. There should be a reversal and a new trial. The evidence presented by the plaintiff was legally sufficient to sustain the jury verdict in her favor. While it remained in the province of the Appellate Division to conclude that the verdict was against the weight of the evidence, the action to be taken upon such a determination is to order a new trial. When reversing, on the facts, a judgment for plaintiff entered upon a jury verdict, the Appellate Division is constitutionally precluded from dismissing the complaint.

The elements of a malicious prosecution cause of action were succinctly stated in Broughton v State of New York (37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 US 929). The plaintiff must establish that (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice. (37 NY2d, at p 457.) In this case, the first two elements are conclusively established. The plaintiff also submitted proof, which if credited by a jury, as it was, would establish the lack of probable cause to commence the criminal proceeding. (See, generally, Munoz v City of New York, 18 NY2d 6; Burt v Smith, 181 NY 1, app dsmd 203 US 129.) The only serious law issue, then, is whether there was sufficient proof of actual malice.

While lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue. Actual malice is seldom established by direct evidence of an ulterior motive on the part of the prosecutor. (Dean v Kochendorfer, 237 NY 384, 389.) This is particularly true where the prosecutor and the accused are strangers to each other at the time the criminal proceeding is initiated. In such cases, a finding of actual malice depends largely upon inferences to be reasonably drawn from the surrounding facts and circumstances. As put by the Restatement of Torts (§ 669), "[l]ack of probable cause for the initiation of criminal proceedings, in so far as it tends to show that the accuser did not believe in the guilt of the accused, is evidence that he did not initiate the proceedings for a proper purpose.” The circumstances "may show so slight a basis for the defendant’s belief in the guilt of the accused as to justify the jury in finding that he did not have that belief in the guilt of the accused which is necessary to justify the initiation of criminal proceedings, and, therefore, did not initiate them for their only proper purpose. On the other hand, the absence of reasonable grounds for belief in the guilt of the accused has little tendency to prove that the proceedings were initiated through ill will or personal hostility to the accused, and no tendency to prove that the purpose of their institution was to obtain a personal advantage.” (Restatement, Torts, Comment a, § 669.) In other words, probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted.

Hence, a jury may, but is not required to, infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding. (E.g., Dean v Kochendorfer, 237 NY 384, 389, supra; Halsey v New York Soc. for Suppression of Vice, 234 NY 1, 7; Heyne v Blair, 62 NY 19, 22; McKown v Hunter, 30 NY 625; Watson v City of New York, 57 Misc 2d 542, 549; Irizarry v City of New York, 79 Misc 2d 346, 352; see, also, 36 NY Jur, Malicious Prosecution, § 27, pp 287-288; Prosser, Torts [4th ed], § 119, pp 848-849; 1 Harper & James, Law of Torts, § 4.6, pp 321-322.) This inference which permits the jury to infer one fact from other facts already established, really does no more than sanction the application of a process of reasoning which is based upon experience and observation. (Cf. Justice v Lang, 52 NY 323, 329; Richardson, Evidence [10th ed], § 56, p 34.)

Turning to the case before us, it should be noted that the Appellate Division reversal was predicated upon both the law and the facts. The Appellate Division could reverse on the law and dismiss the complaint only if there was no evidence upon which to base an inference of malice. We may affirm their decision, insofar as it was based on the law, only if we conclude that "by no rational process” could the jury have based a finding in favor of plaintiff on the evidence in the record. (E.g., Stein v Palisi, 308 NY 293, 296; Blum v Fresh Crown Preserve Corp., 292 NY 241, 245.) In resolving this appeal, since the plaintiff recovered a jury verdict, we should consider the facts adduced at trial in a light most favorable to the plaintiff and the plaintiff is entitled to the benefit of every favorable inference that can reasonably be drawn from the facts. (E.g., Sagorsky v Malyon, 307 NY 584, 586.)

We believe that there is evidence, which if credited by a jury, would establish a total lack of probable cause to initiate a criminal proceeding against Mrs. Martin. Thus, the trial court appropriately instructed the jury, without objection or exception, that "[i]f you find that the defendant did not have probable cause for believing the plaintiffs guilty at the time he instituted the prosecution, you may, though you are not required to, infer from that fact alone that the defendant acted maliciously.” Since there was legally sufficient evidence to support a finding of lack of probable cause, under the law of the case, as well as under well-settled decisional law, the jury was authorized by law, if they found a lack of probable cause, to infer the existence of actual malice. The Appellate Division, therefore, should not have dismissed plaintiff’s complaint on the law.

There is, however, a little more to the case. The Appellate Division also reversed on the facts, stating that, even assuming an inference of malice could be drawn, the finding of malice by the jury was against the weight of the evidence. (51 AD2d 596, 597.) The Appellate Division, of course, has the power to set aside a jury verdict on the ground that the verdict is against the weight of the evidence. (E.g., 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.21.) However, in view of the State constitutional guarantee of the right to trial by jury (NY Const, art I, § 2), the Appellate Division may not, in a case triable by jury as of right, grant a final judgment based upon findings contrary to those of the jury. (E.g., Lane-Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 45; Imbrey v Prudential Ins. Co., 286 NY 434, 441.) "The power of the Appellate Division to make new findings of fact and a final adjudication thereon is, of course, limited to cases triable by the court and does not extend to cases triable as of right by a jury.” (York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134; Middleton v Whitridge, 213 NY 499, 506.) In Caldwell v Nicolson (235 NY 209, 212), Chief Judge Hiscock stated: "We think that it would be something of a shock to the profession to learn that a reversal of a judgment on the ground that the weight of the evidence was against it should or would lead to a dismissal of the complaint rather than to a new trial where perhaps additional evidence might be offered to support the judgment. That a new trial instead of a dismissal follows a decision that the verdict of a jury upon some issue is against the weight of evidence, is so well settled as to require no discussion.” (See, also, 7 Weinstein-Korn-Miller, NY Civ Prac, par 5522.03; Markus v City of New York, 42 AD2d 527; Jones v Kent, 35 AD2d 622, 623 [Memorandum per Cooke, J.]; but see Casler v State of New York, 33 AD2d 305, 309 [nonjury case].)

Had the Appellate Division reversed the judgment solely upon the law, our review of the law issue would have led us to reinstate the jury verdict in favor of plaintiff. However, the Appellate Division also concluded, as is their proper and exclusive province in cases involving jury trials, that the verdict was against the weight of the evidence. To reinstate the verdict would be to implicitly review such determination, and reinstatement, therefore, is generally improper. (See, e.g., Stein v Palisi, 308 NY 293, 298-299, supra; Sagorsky v Malyon, 307 NY 584, 586, supra; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5613.04; Cohen and Karger, Powers of the New York Court of Appeals, §§ 138, 139, pp 566-568; but see Knoblock v Royal Globe Ins. Co., 38 NY2d 471.) A new trial is necessary. (Lane-Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 45, supra.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial granted on appellant’s cause of action for malicious prosecution.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.