source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [818 NE2d 642, 785 NYS2d 1]
    In the Matter of Norman D., Appellant. Commissioner of the New York State Office of Mental Health, Respondent.
    Argued September 8, 2004;
    decided October 19, 2004

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Mineola (Lisa Volpe, Sidney Hirschfeld and Dennis B. Feld of counsel), for appellant.
    I. Track placement at the initial commitment hearing has a significant effect on an acquittee’s confinement. (People v Stone, 73 NY2d 296; Matter of David B., 97 NY2d 267; Matter of Jill ZZ., 83 NY2d 133; People v Escobar, 61 NY2d 431; Matter of Stone, 294 AD2d 59; Matter of Oswald N., 87 NY2d 98; Matter of George L., 85 NY2d 295; Matter of Francis S., 87 NY2d 554.) II. Track status is necessarily challenged in the context of a rehearing and review of an initial commitment order. (People ex rel. Barnes v Gardner, 24 NY 583; Burger v Burger, 111 NY 523; Matter of Coates, 9 NY2d 242; Matter of George L., 85 NY2d 295. III. The Appellate Division’s justifications for excluding the designation of track status from a rehearing and review of an initial commitment order are flawed. (Broida v Bancroft, 103 AD2d 88; Block v Nelson, 71 AD2d 509; People ex rel. Barnes v Gardner, 24 NY 583; Matter of Daniel R. v Wack, 167 Misc 2d 74; Matter of Robert C. v Wack, 167 Misc 2d 677; Matter of Maureen A. v Wack, 153 Misc 2d 600; Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87; People v Stone, 73 NY2d 296; Cohen v Anne C., 301 AD2d 446; Matter of Watkins R. v Berry, 276 AD2d 492.)

      Eliot Spitzer, Attorney General, Albany (Peter H. Schiff, Caitlin J. Halligan, Daniel Smirlock and Julie S. Mereson of counsel), for respondent.
    I. Defendant’s track one status, established when the initial commitment order found that he suffered from a dangerous mental disorder, is not affected by the finding at the time of the rehearing and review proceeding that he is mentally ill but no longer suffers from a dangerous mental disorder. (Matter of Jill ZZ., 83 NY2d 133; Matter of Stone, 294 AD2d 59; People v Hudson, 217 AD2d 53; Matter of George L., 85 NY2d 295; Matter of Alphonse P. v Palmer, 262 AD2d 490; Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87; Matter of Launcelot T. v Mullen, 264 AD2d 697; Matter of Maureen A. v Wack, 153 Misc 2d 600; Matter of Arnold A. v Sanchez, 166 Misc 2d 493; Matter of Torsney, 47 NY2d 667.) II. A challenge to track status must be asserted in an appeal under CPL 330.20 (21), not on rehearing and review.

      Donald A. Williams, District Attorney, Kingston (Paul Tsui of counsel), amicus curiae.
    I. Appellant’s petition for a rehearing and review of the first retention order was moot as a matter of law. (Aetna Life Ins. Co. v Haworth, 300 US 227; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Sherry Lehmann, Inc. v New York State Liq. Auth., 160 AD2d 538; Matter of Crumpley v Wack, 212 AD2d 299, 86 NY2d 808; Matter of David B., 97 NY2d 267; Matter of Jill ZZ., 83 NY2d 133.) II. The rehearing and review was not the proper vehicle to challenge the initial track status denomination. Rather, an appeal to an intermediate appellate court should have been taken, and the Appellate Division’s application of earlier case law was proper. (Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87; Matter of Robert C. v Wack, 167 Misc 2d 677; Matter of Daniel R. v Wack, 167 Misc 2d 74; Matter of Maureen A. v Wack, 153 Misc 2d 600; Matter of Rose, 109 Misc 2d 960; People v Stone, 138 AD2d 4.) III. As a matter of public policy, appellant should" remain subject to the provisions of CPL 330.20 as a safeguard allowing the District Attorney to participate in monitoring appellant’s status. (People v Stone, 73 NY2d 296; Matter of George L., 85 NY2d 295; Matter of Oswald N., 87 NY2d 98; People v Helfman, 91 AD2d 1034.)
   OPINION OF THE COURT

Chief Judge Kaye.

Can an insanity acquittee’s track status—as established by an initial commitment order finding that he suffers from a “dangerous mental disorder”—be changed when, pursuant to a rehearing and review under CPL 330.20 (16), he is later determined to be “mentally ill” but no longer suffering from the dangerous mental disorder? We answer that question in the negative, as did the Appellate Division. Track status, as determined by the initial commitment order, governs the acquittee’s level of supervision in fixture proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review.

Facts

On April 19, 1997, appellant (Norman D.) set fire to the trailer home he shared with his wife, their children and other family members. On February 24, 1998, the case concluded by his entering a plea of not responsible by reason of mental disease or defect. Four months later, following an initial hearing conducted pursuant to CPL 330.20 (6), County Court determined that appellant suffered from a dangerous mental disorder and designated him a “track one” insanity acquittee. Subsequently, appellant was remanded to Mid-Hudson Forensic Psychiatric Center, a secure facility, for an initial period of six months.

In a petition dated July 9, 1998, appellant sought a rehearing and review of his commitment order, as provided for by CPL 330.20 (16). Because of various delays, the court did not consider the merits of appellant’s application until nearly three years later, in April 2001. By that time he was, as all parties agreed, no longer suffering from a dangerous mental disorder. The court accepted the parties’ stipulation to his designation as mentally ill and his placement in a nonsecure psychiatric treatment facility. Appellant, however, argued that as someone now mentally ill but not suffering from a dangerous mental disorder, the court should reassess his track status. Because he suffered from a mental illness (and not a dangerous mental disorder) at the time of the rehearing and review, he urged that he should be reclassified as a track two acquittee, and thus the conditions of his treatment and oversight should be governed by the Mental Hygiene Law, not the Criminal Procedure Law. The Commissioner of Mental Health countered that a change in track status could result only from appeal of the original commitment hearing order, not from a rehearing and review.

Supreme Court undertook what was essentially appellate review of the original 1998 commitment hearing decision, though in the context of its de novo rehearing and review power. The court found that the 1998 decision was supported by credible evidence and, consequently, the original track one designation would continue to govern the conditions of appellant’s oversight, even if he no longer suffered from a dangerous mental disorder. The Appellate Division affirmed that part of the Supreme Court order holding that appellant would remain subject to the provisions of CPL 330.20 as a track one acquittee, noting that the rehearing and review proceeding was not the appropriate vehicle for review of track status (309 AD2d 143 [2d Dept 2003]). We agree.

Analysis

When a court accepts a plea of not responsible by reason of mental disease or defect it must conduct an initial hearing within 10 days following psychiatric examinations (ordinarily conducted within 30 days of the plea or verdict) (CPL 330.20 [2], [4], [6]). Based on its findings, the court then assigns the acquittee to one of the three tracks. The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law (CPL 330.20 [6], [7]).

These track designations arose out of the Insanity Defense Reform Act of 1980 (1981 Report of NY Law Rev Commn, Appendix A [1981 NY Legis Doc No. 65], The Defense of Insanity in New York State, reprinted in 1981 McKinney’s Session Laws of NY, at 2251-2274). The Act was structured to strike a balance between public safety and the individual rights of the acquittee, and was intended to increase the court’s involvement in postverdict supervision of insanity acquittees (see Matter of Jill ZZ., 83 NY2d 133 [1994]; Governor Carey’s Mem approving L 1980, ch 548, 1980 McKinney’s Session Laws of NY, at 1879-1880). The statute set forth a detailed scheme that was, when appropriate, to mirror the Mental Hygiene Law, but that created new procedures for aspects of postverdict supervision applicable only to acquittees (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 330.20).

Postverdict supervision of insanity acquittees is the very problem presented to us by this case.

Track status designation, unique to insanity acquittees, is vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee’s confinement, transfer and release. With a track one designation an acquittee is subject to ongoing supervisory terms of court-issued commitment orders and subsequent retention orders; he or she must be confined to a secure psychiatric facility for an initial period of six months; a court order is required for any transfer to a nonsecure facility, off-ground furlough, release or discharge; and the district attorney’s office continues to be notified of, with the option of participating in, further court proceedings involving the acquittee (CPL 330.20 [6], [8]-[13]). However, if an acquittee is designated track two, then it is the Commissioner of Mental Health, in accordance with the Mental Hygiene Law, who controls subsequent orders of commitment and other oversight (CPL 330.20 [7]). In short, track one status is significantly more restrictive than track two status.

An acquittee can challenge those trial court orders affecting his or her personal liberty in one of two ways. An acquittee “dissatisfied” with a commitment order (or later retention or recommitment orders) can, as of right, demand a rehearing and review held before a different judge or a jury within 30 days after the order (CPL 330.20 [16]). Alternatively, an acquittee can seek leave to appeal the order to an intermediate appellate court pursuant to CPL 330.20 (21) (a) (ii). The appellate court must modify the order of the trial court if it determines that the record did not support the lower court’s findings.

These two options, available in the alternative, are not coextensive. Rehearing and review is to be conducted in accordance with the provisions of sections 9.35 (mentally ill patients) and 15.35 (mentally retarded residents) of the Mental Hygiene Law (CPL 330.20 [16]). Those sections state that the court conducting the rehearing and review “shall cause a jury to be summoned and shall try the question of the mental [illness or retardation] and the need for retention of the [patient or resident] so authorized to be retained. Any such [patient or resident] . . . may waive the trial of [the or such] fact by a jury and consent in writing to trial of such fact by the court” (Mental Hygiene Law §§ 9.35, 15.35).

Such a proceeding, by judge or jury, is a review of the earlier record as well as any new evidence presented by the parties concerning the acquittee’s mental status at the time of the rehearing and review. As such it is not a rehearing in the conventional sense, but a de novo evidentiary proceeding, with the findings a snapshot of the acquittee’s condition at that moment. It is a guarantee that the conditions of supervision originally imposed are appropriate at the time of the new proceeding.

A CPL 330.20 (21) (a) (ii) appeal, on the other hand, is a review of the lower court’s determination based on the record at the time of the earlier proceeding. While any order affecting an acquittee’s terms of confinement and release may be challenged as of right at a rehearing and review or upon grant of an application to appeal, a person who, by plea or verdict, is adjudicated not responsible by reason of mental disease or defect and wishes to challenge his original track status may do so only pursuant to the appeal process outlined in CPL 330.20 (21) (a) (ii). The Appellate Division had it exactly right: an acquittee

“may seek permission to appeal [his or her track status] to an intermediate court, which has the power to modify the acquittee’s track status if the evidence presented at the initial commitment hearing does not support a finding of dangerousness. However, the rehearing and review proceeding, which affords the acquittee a right to a jury trial on the issue of whether he or she currently suffers from a mental illness, is not designed as a substitute for appellate review of the initial commitment order” (309 AD2d at 149-150 [internal citation omitted]).

As we noted above, the statutory scheme fixes track status at the initial commitment hearing—that is the proceeding closest in time to the crime itself. Commission of the crime is a strong indication of how dangerous an acquittee’s mental condition may become without proper treatment, or if treatment is unsuccessful. To best protect the public welfare and the acquittee’s own safety, it is appropriate to determine the necessary level of supervision by potential dangerousness, as demonstrated by an acquittee’s mental condition closest to commission of the criminal act.

Although insanity acquittees who contest the terms of their physical confinement have rehearing and review rights comparable to civilly committed patients, acquittees are not generally entitled to all the same heightened procedural and substantive protections that apply to involuntarily committed civil patients (see CPL 330.20 [16]; Mental Hygiene Law §§ 9.35, 15.35; Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2264; Matter of George L., 85 NY2d 295, 305 n 3 [1995] [involuntary civil commitment requires greater protections than apply to insanity acquittees]). Further, it does not follow that acquittees are entitled to the same form of reconsideration of their track status, a determination that is unique to individuals who have committed criminal acts and inapplicable to involuntary civil patients. Reevaluation of the track determination, set forth as part of the initial commitment order, must be limited to an appeal.

Supreme Court’s role in this case was as a rehearing and review tribunal, pursuant to CPL 330.20 (16) and Mental Hygiene Law §§ 9.35 and 15.35. In this capacity, Supreme Court should have conducted a de novo proceeding regarding appellant’s mental state as of April 2001, the date of the rehearing and review. It should not have undertaken appellate review of the record developed in 1998, nor was it correct to review appellant’s track status, even if that decision was to affirm the original court’s finding.

The issue before us is not whether appellant is currently suffering from a dangerous mental disorder. He is not. As stipulated and accepted by the court, appellant currently suffers from a mental illness. His changed mental state, however, does not alter the finding by the original court that, at the time closest to his commission of arson, he was suffering from a dangerous mental disorder, and that for the future track one provided the appropriate level of supervision. That appellant’s dangerous mental disorder has retreated to mental illness cannot, on rehearing and review, change his track status.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, without costs.

      . CPL 330.20 establishes a three-tiered system, the levels of which have come to be known by courts and commentators as “tracks,” though that language does not appear in the statute itself. “The applicable tracks are premised upon findings either (i) that the defendant has a ‘dangerous mental disorder’ [track one]; or (ii) that the defendant does not have a dangerous mental disorder but is ‘mentally ill’ [track two]; or (iii) that the defendant does not have a dangerous mental disorder and is not mentally ill [track three]” (People v Stone, 73 NY2d 296, 300 [1989] [citations and internal quotation marks omitted]).

      . In 1909 the Legislature amended the analogous section, replacing the term “appeal” with the phrase “rehearing and a review of the proceedings already had” (L 1909, ch 155). In 1972 the Legislature enacted a recodified Mental Hygiene Law, with the “rehearing and review” section now requiring a jury trial on the issues of mental illness and continued retention (L 1972, ch 251, § 31.35). We agree with those lower courts that have held that the Legislature intended a de novo rehearing and review to assess a patient’s present condition (see e.g. Cohen v Anne C., 301 AD2d 446 [1st Dept 2003]; Matter of Barber v Rochester Psychiatric Ctr., 250 AD2d 87 [4th Dept 1998]; Matter of Maureen A. v Wack, 153 Misc 2d 600 [Sup Ct, NY County 1991]).


author: Per Curiam. Read, J. (dissenting). R.S. Smith, J. (dissenting).

text:
    [818 NE2d 1113, 785 NYS2d 372]
    In the Matter of Henry R. Bauer, Judge of the Troy City Court, Rensselaer County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 13, 2004;
    decided October 14, 2004
    POINTS OF COUNSEL

      Roche, Corrigan, McCoy & Bush, Albany (Robert P. Roche of counsel), for petitioner.

      Robert H. Tembeckjian, New York City, Cathleen S. Cenci and Kathryn J. Blake for respondent.
    I. Petitioner engaged in a pattern of disregarding fundamental rights by effectively denying defendants counsel, depriving them of their liberty without due process of law and coercing them to plead guilty. (People ex rel. Klein v Krueger, 25 NY2d 497; Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286.) II. Petitioner’s conduct warrants his removal from judicial office. (Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286; Matter of LaBelle, 79 NY2d 350; Matter of McGee v State Commn. on Jud. Conduct, 59 NY2d 870; Matter of Reeves, 63 NY2d 105; Matter of Esworthy, 77 NY2d 280; Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279; Matter of Duckman, 92 NY2d 141; Matter of Sims, 61 NY2d 349.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the Troy City Court, seeks review of a determination of the State Commission on Judicial Conduct. With various members dissenting as to particular specifications, the Commission sustained 39 charges (containing 62 specifications) of misconduct and determined that petitioner should be removed from office (see NY Const, art VI, § 22; Judiciary Law § 44). Upon our plenary review of the record and after considering the evidence and legal arguments raised, we conclude that petitioner’s conduct warrants removal.

By formal disciplinary complaint dated October 4, 2002, the Commission served petitioner with 51 charges, alleging that he often failed to advise defendants of their right to counsel, sentenced defendants in excess of the legal maximum, repeatedly jailed defendants when they could not meet the bail that petitioner set in excessive amounts, coerced defendants into pleading guilty and twice convicted defendants without a trial or guilty plea.

After petitioner submitted a verified answer in which he denied the allegations, the Commission appointed the Honorable Richard D. Simons as Referee to hear and report findings of fact and conclusions of law. Following a hearing conducted from July 28 through August 4, 2003, the Referee sustained all or part of 49 charges.

CPL 170.10 provides that upon arraignment the court must, among other things, inform defendants that they have the right to counsel at that time and at every subsequent stage of the action (see CPL 170.10 [3]). Furthermore, if at arraignment the defendant is unrepresented, CPL 170.10 (3) obligates the court to inform the defendant of the right to an adjournment for the purpose of obtaining counsel (see CPL 170.10 [3] [a]), and of the right to communicate, free of cost, by letter or telephone, for the purpose of obtaining counsel and informing a relative or friend of the charge. In addition, the arraigning court must tell defendants that if they cannot afford an attorney the court will assign one. “[T]he court must . . . itself take such affirmative action as is necessary to effectuate [those rights].” (CPL 170.10 [4] [a].)

Based on the evidence presented, the Referee found, and the record establishes, that in many arraignments the petitioner did not inform defendants of the rights guaranteed in CPL 170.10. The Referee noted that petitioner sometimes “claimed that it was unnecessary because from their prior experiences defendants knew their rights.” Petitioner also contended that, in some cases, he delayed advising defendants of their right to appointed counsel until he was satisfied that the defendants had first sought paid counsel. Finally, petitioner apparently believed the instructions were not necessary when defendants “were not alert enough to understand the advice.” The Referee found those explanations insufficient and that petitioner’s conduct did not fulfill his obligations under the statute either on arraignment or at subsequent court appearances.

We agree. The law does not contemplate judicial assessments as to whether defendants are experienced enough to know their rights without being told, nor does it authorize judges to inform defendants selectively as to their right to assigned representation. Moreover, if a defendant is not alert enough to understand the advice, the judge should not forgo it but must make sure the defendant does understand before proceeding, even—if necessary—briefly deferring the arraignment.

CPL 510.30 sets forth the criteria for setting bail. In fixing the amount necessary to secure a defendant’s return to court, the judge must take into account the defendant’s character, reputation, habits and mental condition, employment, financial resources, family ties, length of residence in the community, prior criminal record and the apparent strength of the charges.

The Referee found, and the record confirms, that on many occasions, petitioner jailed defendants in lieu of bail, without regard for the required standards. In particular, petitioner often set shockingly high bail and, in several cases, remanded defendants to jail for several days for failure to post bail on charges for which imprisonment was not a legally permitted penalty or upon legally insufficient accusatory instruments. The Referee further concluded, and the evidence establishes, that in some instances petitioner held defendants in lieu of bail for periods beyond the maximum sentence for the offense charged or beyond the period required by speedy trial rules. Moreover, petitioner induced some defendants to plead guilty without the advice of counsel and without informing them that they were entitled to counsel—and only after petitioner had jailed them for longer than the allowable maximum sentence. Further, petitioner imposed illegally excessive sentences in four marijuana possession cases, and twice convicted defendants without pleas of guilty or findings of guilt.

The Commission determined that petitioner violated 22 NYCRR 100.1 (requiring high standards of conduct to uphold the integrity of the judiciary); 22 NYCRR 100.2 (A) (mandating judges to respect and comply with the law and to act in a manner that promotes judicial integrity); 22 NYCRR 100.3 (B) (1) (obligating judges to be faithful to the law); 22 NYCRR 100.3 (B) (4) (requiring judges to perform judicial duties without bias or prejudice against or in favor of anyone); and 22 NYCRR 100.3 (B) (6) (obligating judges to accord litigants and lawyers the right to be heard according to law). The Commission concluded that, for a period of two years, petitioner engaged in a pattern of serious misconduct by repeatedly jailing defendants in violation of their rights. The Commission explained:

“[Petitioner] ignored well-established law requiring judges to advise defendants of the right to counsel and to take affirmative action to effectuate that right. In numerous cases he set exorbitant, punitive bail for defendants charged with misdemeanors and violations, even where incarceration was not an authorized sentence. He coerced guilty pleas from incarcerated, unrepresented defendants who, if they refused to accept [petitioner’s] plea offer, faced continued incarceration because of the unreasonably high bail he had set. He imposed illegal sentences in four marijuana cases, and on two separate occasions he convicted an incarcerated defendant in the defendant’s absence by announcing that the case was ‘a plea and time served,’ although the defendants had not pled guilty. [Petitioner’s] failure to recognize the impropriety of his procedures compounds his misconduct and suggests that defendants in his court will continue to be at great risk. Viewed in its totality, [petitioner’s] conduct demonstrates a sustained pattern of indifference to the rights of defendants and establishes that his future retention in office ‘is inconsistent with the fair and proper administration of justice.’ ” (Citation omitted.)

At the Commission and before us, petitioner has consistently maintained that he has done nothing wrong. In his brief to this Court he states that he “believes that his conduct was appropriate under the circumstances,” citing the purported rationale for his conduct in each instance. Petitioner goes so far as to contend that the “findings of fact on which the Respondent Commission bases its proposed sanction are in fact findings of non-fact as they violate or contradict all the testimonial evidence which was adduced at the hearing which is set forth in the transcript of hearing and made a part of this record.” At another point, while protesting the findings, he attacks the motives of the Commission staff and even the Referee.

The charges, however, are fully , borne out by the record. The testimony reveals a pattern of abuse by which petitioner on numerous occasions not only failed to advise defendants of their rights but perverted CPL 170.10 by telling defendants that they must engage their own attorneys—concealing from them that the statute requires the court to assign counsel when warranted and to see to it that the right to counsel is protected (see People v Witenski, 15 NY2d 392 [1965]). Rather than follow the law, petitioner, in a number of instances, engaged in verbal sparring with defendants and evinced an intent to defeat, not advance, the right to assigned counsel.

Instead of recognizing these failures, petitioner asks us to “examine the credentials of the people who investigated this case, prepared this, case, made this case and preferred the charges on behalf of the Commission.” Impugning the integrity of the Commission staff and the Referee, however, does not distract us from the considerable proof against petitioner.

In 26 instances, and without regard to the statutory criteria, petitioner set bails ranging from $10,000 to $50,000 for defendants who were charged with petty crimes or violations. By jailing defendants (in lieu of bail) for offenses that rarely, if at all, carry jail sentences upon conviction, petitioner abrogated his duty and abused his position as a judge. Punishing people by setting exorbitant bail, particularly where the offense does not carry a jail sentence, demonstrates a callousness both to the law and to the rights of criminal defendants. Moreover, when coupled with a failure to advise these defendants of their right to assigned counsel, petitioner’s imposition of punitive bail all but guaranteed that defendants would be coerced into pleading guilty: it was the only way to get out of jail.

We recognize that bail is discretionary and that there may be a wide range in the amounts set by reasonable judges. In reviewing petitioner’s conduct, however, we see not an isolated instance of high or injudicious bail-setting, but a pattern of exorbitant bail so extraordinary that we must characterize it as abusive and coercive in the extreme, particularly when accompanied by petitioner’s withholding from defendants their right to assigned counsel. We disagree with the dissenters’ apparent position that excessive bail can never form the basis for removal. Even when the petitioner set a bail within his lawful discretion, he failed on several occasions to protect defendants’ right to counsel. We provide the following examples to illustrate the nature of the petitioner’s misconduct, but we note that the record reflects many more incidents of excessive bail and denial of counsel.

In one example, a teenaged defendant was charged with a violation. After the teenager spent the weekend in jail in lieu of $500 bail, he appeared before the petitioner without counsel. The petitioner made no offer of counsel to the defendant, and made no statement alerting the defendant to his right to counsel, even though an assistant public defender was in the courtroom at the time. The petitioner, without any appearance by a prosecutor or defense counsel, and without any explanation that the teenager’s release from jail was not conditioned on his pleading guilty, told the defendant “If you plead guilty, I will impose a fine of $30 and sentence you to time served. Is that understood and acceptable?” The Referee and Commission concluded, and we agree, that petitioner coerced the guilty plea by denying the defendant’s right to counsel and by abusing his authority to jail a defendant in lieu of bail.

In another case, without informing the defendant of his right to counsel or determining whether he needed appointed counsel, petitioner set bail at $25,000 for a defendant charged with riding a bicycle at night on a sidewalk and without appropriate lights. The maximum fine for the violations was $100, without the possibility of any incarceration. Nevertheless, the defendant suffered seven days in jail because he could not afford to satisfy the illegally high bail. Petitioner then secured a guilty plea from the defendant without any appearance by defense counsel.

In deciding whether to accept the Commission’s determination that petitioner be removed, we are taking into account that petitioner has received support from a number of sources asserting that he has generally behaved fairly, even admirably. Defense lawyers, including the Public Defender, supported the petitioner before the Commission. Furthermore, in a report conducted several years before the earliest specification here, the Fund for Modern Courts praised the petitioner for his fairness to defendants. Nevertheless, proof that the petitioner can behave appropriately when being monitored does not negate the abundant evidence in the record that he has engaged in grievous misconduct when unmonitored.

From our perspective, it is not surprising that petitioner’s supervising judge only rarely reviewed petitioner’s bail decisions. The right to counsel, in practical respects, remains absolutely fundamental to the protection of a defendant’s other substantive rights (see People v Felder, 47 NY2d 287, 295 [1979]). It is therefore highly unlikely that a defendant without a lawyer would have the practical knowledge necessary to secure judicial review of a bail judgment. Indeed, petitioner’s coercive conduct most likely convinced many defendants that any move to protect their rights would result in more jail time. Contrary to Judge Smith’s implicit suggestion in dissent that the test for denial of the right to counsel involves a determination of prejudice to the defendant, petitioner was not free to withhold counsel from defendants on the assumption that a lawyer would not have made a difference. We are not prepared to relieve judges of their statutory responsibilities, nor can we agree that the presence of a lawyer—particularly at critical stages of the proceedings—in fact would not have mattered. Similarly, the Public Defender’s apparent ignorance of the petitioner’s illegal bail practices is not inconsistent with the Commission’s findings, given that the record shows that the petitioner set excessive bail especially when the defendants lacked representation from the Public Defender or any other assigned counsel. The Public Defender’s praise for the petitioner in cases in which defendants were granted representation does not begin to outweigh the strong evidence that the petitioner improperly denied representation to many defendants, especially given the Public Defender’s inconsequential performance, as noted by Judge Smith in dissent, in representing defendants when petitioner did assign counsel.

In view of the multiple specifications of severe misconduct upheld by the Commission and confirmed by the record, we cannot allow petitioner to remain on the bench. Petitioner’s apparent lack of contrition is telling. In some instances contrition may be insincere, and in others no amount of it will override inexcusable conduct. Here, while petitioner’s conduct was far from uniformly foul, his utter failure to recognize and admit wrongdoing strongly suggests that, if he is allowed to continue on the bench, we may expect more of the same.

Accordingly, the determined sanction should be accepted, without costs.

Read, J. (dissenting).

The State Commission on Judicial Conduct effectively snapshots occasions when petitioner, a Judge of the Troy City Court, unquestionably failed to fulfill his obligations under CPL 170.10. We agree that this conduct cannot be condoned and should be sanctioned. Unlike the majority, however, we refuse to find misconduct based on the allegation that petitioner routinely set excessive bails. We dissent because censure is the appropriate remedy.

Our first disagreement with the majority involves the Commission’s decision to charge misconduct in 26 cases where it believes petitioner set “excessive bail.” Even were we to agree that bail was “shockingly” high in these cases (majority op at 161), we question whether the Commission’s authority extends to this highly discretionary judicial realm (see e.g. CPL 510.30 [2]). One of the members of the Commission, in a dissent recommending censure rather than removal, explained that

“[throughout its history, the Commission has cautiously refrained from intruding into areas that encroach upon judicial discretion. Expressing its reluctance to review a judge’s bail determinations, the Commission stated in its 1991 annual report: ‘Although the Commission has not authority to consider complaints that judges have abused their discretion in setting bail, it may consider complaints that judges have used the bail procedure for other than its intended purpose,’ e.g., to punish a defendant or coerce a guilty plea. I subscribe to this limitation upon our authority.”

We agree.

The Commission’s allegation that petitioner set excessive bails impinges on his discretion as a judge and is, in our opinion, outside the Commission’s scope of authority. CPL 510.30 sets forth the factors on which an application for bail is determined. Critically, it provides that, except in specific circumstances prescribed by statute, “the issuance of an order of recognizance or bail and the terms thereof are matters of discretion rather than of law” (CPL 510.30 [2] [emphasis added]).

As the majority acknowledges, there is a “wide range in the amounts [of bail] set by reasonable judges” (majority op at 163). Because of this “wide range,” bail determinations can only be reviewed on habeas corpus for an error of law, such as an abuse of discretion (see People ex rel. Lazer v Warden, 79 NY2d 839 [1992]). CPL 530.30 also provides relief from excessive bail, but it does not subject the arraigning judge’s decision to review. Rather, it allows de novo review of a local criminal court’s bail determination on application by the defendant to a superior court judge. A judge who abuses discretion in setting bail may err as a matter of law, but such errors of law are usually not grounds for judicial misconduct.

Bail determinations are not completely outside the Commission’s scope of authority, however. In Matter of LaBelle (79 NY2d 350 [1992]), we concluded that by failing to follow the bail procedures in the CPL, petitioner “knowingly committed legal error and engaged in sanctionable conduct” (id. at 358). Here, the Commission refines its excessive bail argument by alleging that petitioner failed to “consider” the CPL 510.30 factors in setting bail, and improperly jailed defendants in lieu of bail. These charges, alleging a failure to follow statutory procedure, are firmly within the scope of the Commission’s authority. We do not regard them to be sustainable, however, because petitioner testified that he did, in fact, “consider” the statutory factors, and we find no basis in the record to presume otherwise.

In its recommendation, the Commission also suggests that petitioner used bail for impermissible reasons, concluding that he wielded bail not “to insure that the defendants would return to court, but ... to insure that these defendants spent time in jail.” If this charge were sustainable, it would be within the Commission’s authority as defined in its own annual report. But we find no basis upon which to conclude that petitioner’s goal was jail time rather than the defendant’s appearance in court. Maybe lower bails would have achieved this purpose, but it cannot be said that petitioner’s neglect to set lower bails amounted to misuse of the bail process.

Further, the Commission acknowledged that “the record does not establish that [petitioner] was motivated by bias against particular defendants or a class of defendants.” This is significant because without an improper motive, all that remains of the Commission’s allegation that petitioner was misusing the bail process is its conclusion that he was harsh. While the majority may be willing to imply misconduct from petitioner’s admittedly severe bail process, we are not.

The Commission’s real grievance is not the alleged excessiveness of bail standing alone, however. The Commission and the majority believe that the true misconduct in this record is that certain defendants, charged with crimes punishable only with fines, were secured by an order of bail and, being unable to meet bail, were jailed (majority op at 160-161). Nothing in the CPL forbids this result, as nothing restricts a judge’s securing options based on the punishments available for the crime (see CPL 510.10). This situation arises from the necessity of a securing order in all cases, and so does not demonstrate a violation of law or any other impropriety, and cannot support a charge of judicial misconduct.

Having rejected the Commission’s allegations concerning bail, we turn to the remaining charges. We agree that more should have been done to advise defendants of their rights under CPL 170.10. As the Referee concludes in his report, petitioner’s justifications for his conduct are “insufficient and . . . [his] conduct did not fulfill his obligations under the statute.” Had petitioner been censured, a change in his practice going forward would have been required.

But we caution that the Commission’s entire CPL 170.10 case against petitioner consists of 19 sustained charges, which occurred during two years of a 10-year judicial career. There is no way to discern whether these cases are exceptions to or representative of petitioner’s general conduct on the bench. Counsel for petitioner represented at oral argument that petitioner presides over approximately 3,400 arraignments a year, a number which is in line with the statistical information in the record concerning case volume in Troy City Court. Moreover, at least four of the section 170.10 violations took place on Saturdays when no transcript was available. Unlike the majority, we are unwilling to infer from the absence of a record that a section 170.10 violation must have occurred (majority op at 164-165). We further note that no complaints were lodged against petitioner after the commencement of this investigation.

We also would refuse to sustain the allegations of “coerced guilty pleas” as independent acts of misconduct. The Commission offers no evidence that petitioner forced any defendant who wanted a trial to plead. The allegations are merely conclusions that the Commission reached based on its speculation about how petitioner’s other alleged failures affected defendants.

The remaining allegations involve legal errors on petitioner’s part, not knowing acts of judicial misconduct. The record shows that on two occasions, petitioner allowed pleas without the presence of the defendant, and on four occasions, petitioner entered inaccurate fines and sentences, albeit with the consent of both the District Attorney and defense counsel. Petitioner admits these errors. We see nothing in these mistakes to transform them from ordinary judicial error into judicial misconduct.

Removal is a severe remedy—indeed a terminal remedy for a judge. “[T]he purpose of judicial disciplinary proceedings is not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents” (Matter of Watson, 100 NY2d 290, 303 [2003] [citation omitted]). None of the aggravating factors that have supported removal in past cases involving bail and section 170.10 are present here (see e.g. Matter of Esworthy, 77 NY2d 280 [1991] [failure to advise of right to counsel along with racist comments and intemperate manner warrants removal]; Matter of Reeves, 63 NY2d 105 [1984] [failure to advise of right to counsel, falsification of records, failure to obtain statutorily required financial statements from litigants and improper ex parte communication justify removal]; Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286 [1983] [failure to advise defendants of right to counsel and improper bail determinations combined with improper judicial temperament justifies removal]). This record reveals no intemperate behaviors and no discriminatory comments or motivations.

Moreover, prior to the appearance of the Commission in his courtroom, petitioner had never been cautioned that his conduct was inappropriate. The cases petitioner arraigned were misdemeanors or less with minor punishments and so were unlikely to result in appeal. Thus, as a Commission member pointed out in a dissent recommending censure, there was no appellate court looking over petitioner’s shoulder and correcting his errors. His administrative judge testified under subpoena that from February 1998 to July 2003, he received no complaints regarding petitioner, his bail or his counsel practices. His “supervising judge” testified under subpoena that he had never had any occasion to counsel petitioner regarding his bail or counsel practices.

Prior to his tenure on City Court, petitioner served as assistant public defender in Rensselaer County. The Commission looked to this experience as evidence of petitioner’s knowledge that his conduct was wrongful. An equally supportable conclusion is that petitioner’s conduct as a judge was guided by his experience as a public defender. The record establishes that for at least 20 years, the practice in Rensselaer County has been for the court to determine whether a defendant should be assigned counsel, and not the Public Defender’s Office, as is apparently the case elsewhere in the state. Thus, petitioner was charged with carrying out the dual roles of guarding the public fisc and informing defendants of their right to seek assigned counsel. Perhaps he conflated these two arguably incompatible roles and, having decided that assigned counsel was not warranted in a particular case, failed to fulfill his obligations under section 170.10. We do not offer this to excuse petitioner’s conduct, but rather to provide context.

This longstanding practice in Rensselaer County may also explain why the record is replete with support from members of the legal community, particularly members of the defense bar. The Rensselaer County Public Defender testified that in his eight years on the job, none of his assistants had complained to him “about the bail practices” of petitioner. Indeed, the Public Defender’s only complaint was that his office was “assigned, maybe, cases where [it] shouldn’t be” by petitioner. An assistant public defender praised petitioner for “being very respectful of clients’ rights.” A prominent private defense attorney appeared without a subpoena at petitioner’s hearing. While his testimony was properly struck, his support for petitioner was clear. Other local attorneys also wrote the Commission to commend petitioner.

The Executive Director of the local Treatment Alternatives to Street Crime and supervisor of drug court in Troy stated that “[petitioner] is very concerned and has always been concerned about individuals and the way that they get from the criminal justice system into treatment.” Moreover, “[h]e is interested in defendants on a personal level and one sees that as he relates to each of these defendants personally every time they appear before him.” The Fund for Modern Courts published a glowing review of petitioner in 1998, prior to the commencement of the Commission’s investigation. Petitioner was observed on behalf of the Fund a total of 64 times by 18 different monitors on 32 different occasions.

Finally, the majority adverts to petitioner’s “lack of contrition” as a compounding factor (majority op at 165). While we agree that contrition is important, we also caution that judges must be allowed to defend their actions before the Commission and at the same time express a willingness to change their practices. This has apparently occurred here.

In his own testimony before the Commission, petitioner acknowledged that his conduct had, in fact, changed. When asked whether he had “changed [his] practices regarding bail,” petitioner responded “I still consider the same factors,” an apparent reference to his assertion that he always had, in fact, considered the statutory factors when setting bail. When asked whether his practices concerning section 170.10 had changed, he responded “Yes, there’s been some revision, and when you look at transcripts, and certainly, when you’re quizzed on matters such as these, you give it more attention.” We need not gauge the sincerity of petitioner’s words (majority op at 165), because the Commission’s own witness, an assistant public defender, testified in July 2003 that, in the previous year and a half to two years—a period coinciding with the Commission’s investigation—petitioner “has become pretty scrupulous about advising people of their right to counsel . . . and tries to make sure that they have counsel before any important decisions are made.”

In short, the sustainable misconduct here primarily involves petitioner’s failure to “fulfill his obligations” under section 170.10, which is akin to the error of the petitioner in LaBelle where censure was imposed. Three members of the Commission, in fact, dissented and recommended censure rather than removal.

We find it impossible to conclude, on the basis of this record, that petitioner will not respond to a censure. Because there is no evidence that he is unfit to serve as a judge, we also conclude that censure, rather than removal, is the proper remedy. Accordingly, we respectfully dissent.

R.S. Smith, J. (dissenting).

Although I agree in substance with Judge Read’s dissenting opinion, I write separately to present my own point of view on this difficult case.

Most of the accusations against petitioner charge two forms of misconduct: failing to advise defendants of their right to counsel, and setting excessive bail. In reading the Commission’s findings, it is possible to get the impression that petitioner, on repeated occasions, denied counsel to indigent defendants and then took advantage of their unrepresented status to jail them by imposing excessive bail. If I thought this had occurred, I would vote for removal. I am convinced, however, that this impression is incorrect, and that petitioner’s misconduct was somewhat less serious than it appears at first glance.

Petitioner did repeatedly fail to give defendants the information required by Criminal Procedure Law § 170.10 (3) and (4) (a), to the effect that the defendant has the right to counsel, to an adjournment to obtain counsel, to communicate for the purpose of obtaining counsel and to have counsel assigned if he or she cannot afford one. It does not seem, however, that petitioner’s failure to recite the litany caused any defendant to be sent to jail. Conditions in the court in which petitioner sat apparently did not permit instantaneous, or even very rapid, action on behalf of a defendant by assigned counsel. This of course is troubling in itself, but it is not a problem that can be laid at petitioner’s door. I see no indication in the record that any defendant who was remanded for failure to post bail would have avoided incarceration, or would have been released sooner, if he or she had had a court-appointed lawyer. Indeed, a number of the cases in which the Commission found that petitioner set excessive bail are cases in which the petitioner had appointed the Public Defender to represent the defendant, without apparent effect.

In short, the record does not show that, in failing to comply with the requirements of CPL 170.10 (3) and (4) (a), petitioner intended to, or did in fact, make the practical plight of indigent defendants significantly worse. Of course, this does not excuse his noncompliance; the rights of which the defendants should have been advised are very important ones, and petitioner should not have assumed that he was merely omitting an empty ritual. But to err in this way is not the same as deliberately depriving defendants of counsel in order to assure that bail rulings are not challenged.

I have thus concluded that the Commission’s two main charges—the failure to inform defendants of their rights and the setting of high bail—are not parts of a single pattern of misconduct, but separate offenses, quite different in their gravity and their consequences; and I am satisfied that petitioner’s failure to comply with CPL 170.10 would not, by itself, warrant a sanction more severe than censure.

I am much more troubled by petitioner’s practices in setting bail. The Commission has identified more than a few instances of bail levels that are startling on their face: $25,000 on a charge of trespass; $25,000 on charges relating to the improper operation of a bicycle; $20,000 on a charge of possession of marijuana; $25,000 on a charge of loitering and jaywalking—the list goes on. When more closely scrutinized, some of the cases seem less egregious; some of the defendants may have been more serious malefactors—and thus perhaps more likely to abscond—than the relatively petty charges against them suggest. But the record contains at least one real horror story, the Russell case: a young man with no criminal record and strong community ties, arrested for loitering (in what he testified before the Referee, without contradiction, was merely a mixup by police officers), was remanded to jail in lieu of $10,000 bail.

It is possible to infer from this record that petitioner used very high bail, improperly, to give a brief taste of jail to defendants he thought would benefit from it; and also that in so doing he inevitably made occasional misjudgments that caused severe and unjustified hardships. This gives me serious pause. Yet I conclude, essentially for the reasons stated by Judge Read, that it would be a mistake to remove petitioner from the bench solely or primarily because of his bail decisions. Indeed, the Commission conceded at oral argument that it would be hard-pressed to justify removal based on the bail decisions alone. Bail decisions are discretionary, and judges should not be disciplined for exercising their discretion, even where they have repeatedly exercised it poorly. It seems that in every case except the Russell case respondent is able to present an argument (though often not a very convincing one) in favor of his bail decision. Issues like these are better scrutinized on appeal or habeas corpus than in judicial disciplinary proceedings.

I find the Commission’s charges relating to matters other than the right to counsel and bail to be of relatively little moment. The accusation that petitioner “coerced” guilty pleas seems to me redundant of the charge that he set excessive bail. A high level of bail can indeed be a very effective spur to a guilty plea, but I cannot see what other conduct of petitioner in these cases can fairly be called “coercive.” And the remaining acts of which the Commission complains are, as Judge Read points out, simply isolated cases of legal error.

As the majority notes, petitioner’s response to the Commission’s charges was most unfortunate. He might have spared himself much of his present trouble had he reacted to the Commission’s investigation by saying, in substance: “I’m sorry. I made mistakes. I won’t do it again.” He reacted instead with outraged defiance, and with an ill-judged, and wholly unsuccessful, attempt to show that his disciplinary problems stemmed from an unholy alliance among the Commission’s staff, the Commission’s Referee and the American Civil Liberties Union. I thus agree with the majority that petitioner’s lack of contrition may be taken into account here. But it does not, in my view, more than balance the mitigating factors summarized in Judge Read’s opinion—evidence indicating that petitioner has been, in many important respects, quite a good judge.

While both absence of contrition and mitigation are relevant, I do not believe that either should be the decisive factor here, or in most cases involving judicial discipline. The central issue must be whether the petitioner’s conduct was sufficiently bad to warrant his removal from the bench. In this case, I conclude by a narrow margin that it was not, and I therefore dissent from the Court’s decision.

Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur in per curiam opinion; Judge Read dissents in a separate opinion in which Judge Graffeo concurs; Judge R.S. Smith dissents in another opinion.

Determined sanction accepted, without costs, and Henry R Bauer removed from the office of Judge of the Troy City Court, Rensselaer County.

      . We note that petitioner represented in his brief that he set approximately 2,500 bails per year. Given this volume of bail determinations, we further question whether the 26 instances of excessive bail alleged by the Commission so permeate petitioner’s practice as to warrant removal rather than censure.

        . These two cases apparently involve CPL 340.20 (2) (a) which provides that “a plea to an information must be entered orally by the defendant in person unless the court permits entry thereof by counsel upon the filing by him of a written and subscribed statement by the defendant declaring that he waives his right to plead to the information in person and authorizing his attorney to enter a plea on his behalf as set forth in the authorization.” (Emphasis added.) The record does not contain a subscribed statement and thus demonstrates a violation of section 340.20 (2).


author: Rosenblatt, J.

text:
    [818 NE2d 1110, 785 NYS2d 369]
    In the Matter of Catherine G., Individually and as Parent and Guardian of Brittany G. and Others, Infants, Appellant-Respondent, v County of Essex et al., Respondents-Appellants, and Crisis Center of Clinton, Essex, and Franklin Counties, Inc., et al., Respondents.
    Argued September 7, 2004;
    decided October 14, 2004

      POINTS OF COUNSEL

      O’Connell and Aronowitz, Albany (Cornelius D. Murray and April M. Wilson of counsel), for appellant-respondent.
    The Appellate Division erred in denying Melissa leave to file a late notice of claim. (Matter of Kimberly S.M. v Bradford Cent. School, 226 AD2d 85; Ivan John M. v Catholic Home Bur., 182 AD2d 421; Matter of Nathaniel TT., 265 AD2d 611; Matter of Rachel G., 185 AD2d 382; Matter of Angelina AA., 211 AD2d 951; Matter of Christopher O., 211 AD2d 980; Matter of Commissioner of Social Servs. [Kanisha W.], 233 AD2d 325; Matter of Amanda LL., 195 AD2d 708; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353; Matter of Howard v Wyman, 28 NY2d 434.)

      FitzGerald Morris Baker Firth P.C., Glens Falls (John Dutton Aspland of counsel), for County of Essex and others, respondents-appellants.
    I. Respondents-appellants did not violate any statutory duty established by Social Services Law § 413. (Matter of Drozdzal v Rensselaer City School Dist, 277 AD2d 645; People v Carroll, 93 NY2d 564; Matter of Yolanda D., 88 NY2d 790; People v Wong, 81 NY2d 600; People v Myers, 201 AD2d 855; People v Goddard, 206 AD2d 653; Matter of Kimberly SM. v Bradford Cent. School, 226 AD2d 85; Saafir v Metro-North Commuter R.R. Co., 260 AD2d 462; Matter of Ford v Town of Guilderland, 85 AD2d 868; Matter ofMeredithe C. v Carmel Cent. School Dist, 192 AD2d 952.) II. The absence of personal jurisdiction foreclosed the court’s ability to grant leave to file a late notice of claim against the county respondents-appellants. (!Torres v City of New York, 260 AD2d 368, 93 NY2d 815; Matter of Eso v County of Westchester, 141 AD2d 542; Fashion Page v Zurich Ins. Co., 50 NY2d 265; Marine Midland Realty Credit Corp. v Welbilt Corp., 145 AD2d 84; Matter ofKomanoffv Dodd, 114 AD2d 344; Berment v County of Erie, 53 Mise 2d 366; Fill-yow v Westchester County, 33 Mise 2d 501; Raynor v Kirk, 30 Mise 2d 1041; Charm-Tex, Inc. v Sears, Roebuck & Co., 222 AD2d 304, 87 NY2d 810; De Zego v Bruhn, 99 AD2d 823, 63 NY2d 770, 67 NY2d 875.) III. No duty to report extends to unknown cases of abuse and the Legislature did not envision such a duty. (Riley v County of Broome, 95 NY2d 455; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Bluebird Partners v First Fid. Bank, 97 NY2d 456.)

      Law Office of James M. Brooks, Lake Placid (Jenifer R. Briggs and James M. Brooks of counsel), for Lake Placid Central School District and others, respondents-appellants.
    I. The school respondents did not violate any statutory duty established by Social Services Law § 413. (Matter of Kimberly S.M. v Bradford Cent. School, 226 AD2d 85; Matter of Swain v County of Albany, 268 AD2d 747, 94 NY2d 764; Matter of Katz v Town of Bedford, 192 AD2d 707.) II. The Appellate Division properly reversed the order granting leave to file a late notice of claim on behalf of Melissa. (Matter of Doe v Madrid-Waddington Cent. School Dist., 232 AD2d 922; Matter of Donald E. v Gloversville Enlarged School Dist., 191 AD2d 749; Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645; De Jesus v County of Albany, 267 AD2d 649; Matter of Leiblein v Clark, 207 AD2d 348.)
   OPINION OF THE COURT

Rosenblatt, J.

Pursuant to Social Services Law § 422, the Legislature established a statewide central register of child abuse and maltreatment (see L 1973, ch 1039, § 1). Petitioner sought leave under General Municipal Law § 50-e (5) to file late notice of claim against various county and school officials. She maintains they were mandated to do so but failed to report to the central register evidence that her son abused one of her daughters. We conclude that it was an abuse of discretion to permit the late notice of claim because, in the circumstances present here, the claim is patently meritless.

In August 2000, petitioner had four children living in her home: a boy, aged 14; and three girls, Brittany, nine; Melissa, eight; and Marcie, four. The boy is the girls’ half-brother. After discovering that her son may have been inappropriately touching Brittany, petitioner told Brittany’s pediatrician about it. She also called the New York State Central Register of Child Abuse and Maltreatment hotline. The person who answered the call, however, explained to petitioner there was nothing the agency could do, because under these circumstances petitioner’s son was not a “person legally responsible” for her daughter (see, e.g., Social Services Law § 412 [3]).

In September 2000, petitioner raised the problem with school psychologist Dr. Randy Quayle, who referred Brittany to counseling at Crisis Center of Clinton, Essex, and Franklin Counties, Inc. Neither the pediatrician, the school psychologist, nor the crisis center counselor made reports to the state hotline.

An unknown third party called the hotline in January 2001 and reported incidents involving petitioner’s son and Brittany. The hotline accepted this report. As a result, Dr. Laura Sowden, an employee of Essex County Mobile Mental Health, visited the family’s home. After an investigation that included an interview with the boy, Dr. Sowden determined that because the matter involved an isolated incident of touching, no further threat existed. In her view, the matter was not serious enough for criminal prosecution or further intervention and would be best handled by mental health counseling.

Brittany eventually told her mother that the abuse extended beyond inappropriate touching and that her brother was subjecting her and her younger sisters to repeated acts of rape and sodomy. On behalf of herself and her daughters, petitioner sought to sue Essex County and the Lake Placid Central School District, claiming that, as. mandatory reporters, their officials were required to report to the state hotline and thereby could have prevented her son from harming her daughters. Because the deadline for filing the notice of claim had already passed, petitioner attempted a late filing under General Municipal Law § 50-e (5). Supreme Court granted the motion with respect to Brittany and the middle daughter but denied it with respect to petitioner and the youngest daughter. The court ruled that based on petitioner’s September 2000 report, there was no reason to suspect any harm to the four year old.

The Appellate Division modified by allowing only Brittany’s claim because the September 2000 report to school officials involved her alone. We modify and hold that leave to file late notice should have been denied with respect to Brittany’s claim as well. General Municipal Law § 50-e (5) allows a late notice of claim when, in the court’s discretion, it is justified (see generally Siegel, NY Prac § 32, at 34-38 [3d ed 1999]). Leave is not appropriate for a patently meritless claim (see also Matter of Katz v Town of Bedford, 192 AD2d 707, 708 [2d Dept 1993]).

For purposes of reporting to the statewide register, Social Services Law § 412 (1) defines an abused child as one so defined under the Family Court Act. Section 1012 (e) of the Family Court Act defines “[ajbused child” as a child harmed by a “parent or other person legally responsible for his care.” It uses the same “parent or other person legally responsible for his care” in the definition of “[n]eglected child.” (§ 1012 [f] [i].) Since the boy was obviously not a parent or guardian, the only question is whether he was a “person legally responsible for [Brittany’s] care.” Under the circumstances of this case, he was not.

Section 1012 (g) of the Family Court Act states that a “ ‘[plerson legally responsible’ includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time.” The plain meaning of these terms excludes petitioner’s son. We recognize that the very next sentence provides that “Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.” The proof, however, rules out petitioner’s son as a “custodian” of his half-sisters, as petitioner made it clear that she did not leave the girls in his charge.

We decline petitioner’s invitation to interpret the statute so broadly as to include her son. If we did, custodianship would, for the purposes of this statute, extend to virtually anyone, even a 10-year-old sibling. According to one commentator, the Legislature intended the custodial category to permit child protective petitions against parents’ paramours (see Besharov, Practice Commentaries, McKinney’s Cons Law of NY, Book 29A, Family Ct Act § 1012, at 373 [1999 ed]). While the classification could properly extend to adult members of a household and, under unusual circumstances, perhaps a minor sibling, we do not believe there was a legislative intent uniformly to include minor siblings within the statute’s scope. Moreover, the purpose behind the child abuse provisions of Family Court Act § 1012 is set forth in section 1011, in which the lawmakers declared that article 10 is “designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child.” Plainly, the law contemplates intervention in relationships between children and their parents (or guardians or custodians). Although in certain instances a sibling can be a guardian or custodian, this is not one of them.

Our conclusion is supported by the Social Services Law’s definition of the “[s]ubject of the report” as including “any parent of, guardian of, custodian of or other person eighteen years of age or older legally responsible for [a child]” (Social Services Law § 412 [4]). Accordingly, a 14-year-old boy could not be the subject of a report even if he were “legally responsible” for purposes of the statute. Moreover, it would make no sense to require mandatory reporters to furnish information to the state hotline if the reporters know the abuser cannot be the subject of a report.

Ordinarily, the State would not need to intervene when a minor is abusing a sibling. Parents would usually be the ones to take action. Petitioner never suggested that she was so bereft of control that she was unable to stop her 14-year-old boy from harming his siblings. The record reveals a mother who, as the person in charge of the household, appeared to be taking responsible measures to protect her daughters and obviate the need for governmental intervention. If there were evidence to the contrary, the officials involved would have been obligated to report her as a person who “allows to be committed an offense against [a] child” (Family Ct Act § 1012 [e] [iii]).

As the facts demonstrate, neither the mandatory reporters nor the state hotline itself considered a parent’s report about her child’s misconduct to fall within the reach of the reporting statutes. From his training and experience, Dr. Quayle knew the state hotline would not ordinarily accept reports about a 14 year old inappropriately touching his sister. Dr. Quayle’s assessment was correct: on the two occasions petitioner called the hotline, the case worker told her that the registry lacked authority over the matter. Under the circumstances, there is no reason to suppose a report from Dr. Quayle to the state hotline would have changed anything.

Indeed, when the state hotline actually took a report from a third person, the result was a home visit from a psychologist who determined that based on her investigation, the situation did not appear to warrant more drastic action or anything beyond counseling. It is safe to say that an earlier visit would not have prevented any abuse even if had taken place the same day as petitioner’s report to Dr. Quayle.

The Legislature could have required mandatory reporting for each and every instance of abuse by one sibling against another, but chose not to do so. Reaching our conclusion on the facts of this case, we do not suggest any relaxation of statutory obligations of mandatory reporters. When in doubt about whether a case must be reported under Social Services Law § 413, they ought to err on the side of caution and make a report. It is for this reason that Social Services Law § 419 protects those who report in good faith by giving them immunity from liability from what may prove to have been an improvident report.

Because petitioner’s claims were patently without merit, the motion court should have denied leave to file a late notice of claim.

Accordingly, the Appellate Division order should be modified, with costs to respondents-appellants, by denying the application to file a late notice of claim on behalf of Brittany and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order modified, etc.

       The hotline confirmed this when petitioner called again in January 2001.