In re the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Frank Vaccaro

On September 26, 1977 the following opinion of the Court on the Judiciary was handed down:

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

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.

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 submit

ted 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:

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

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.

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.

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.