In re Cerbone — 61 N.Y.2d 93

Majority

p. 93

In the Matter of Vincent T. Cerbone, a Justice of the Mount Kisco Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.

Argued December 13, 1983;

decided January 17, 1984

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POINTS OF COUNSEL

B. Anthony Morosco for petitioner.

I. The allegations in the formal written complaint have not been sustained by a quantum of evidence. II. The commission utilized the incorrect standard of proof. (Addington v Texas, 441 US 418 ; Woodby v Immigration Serv., 385 US 276 ; Chaunt v United States, 364 US 350 ; Schneiderman v United States, 320 US 118 ; Santosky v Kramer, 455 US 745 ; Ross v Food Specialities, 6 NY2d 336 ; Amend v Hurley, 293 NY 587 ; Porter v Commercial Cas. Ins. Co., 292 NY 176 ; Commissioner of Public Welfare v Ryan, 288 App Div 607 ; Matter of Findlay, 253 NY 1 .) III. The complaint lacks specificity. IV. The proceeding before the commission constitutes double jeopardy. (Benton v Maryland, 395 US 784 ; United States v Furlong, 5 Wheat [18 US] 184; Green v United States, 355 US 184 ; Matter of Barnes v Tofany, 27 NY2d 74 ; Helvering v Mitchell, 303 US 391 ; One Lot Emerald Cut Stones v United States, 409 US 232 ; Coffey v United States, 116 US 436 ; United States v La Franca, 282 US 568 ; Ex parte Wall, 107 US 265 .) V. Judge Cerbone’s conduct was justified. (Matter of Fuhrer v Hynes, 72 AD2d 813 .) VI. In any event, the sanction of removal is excessive. (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465 .)

Gerald Stern and Alan W. Friedberg for respondent.

I. Petitioner’s misconduct was clearly established and warrants his removal from office. (Matter of Steinberg, 51 NY2d 74 ; Matter of Kane, 50 NY2d 360 ; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465 ; Matter of Waltemade, 37 NY2d [a]; Matter of Shilling, 51 NY2d 397 ; Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279 .) II. Petitioner’s arguments are without merit. (Matter of Vaccaro, 42 NY2d [a]; Matter of Richter, 42 NY2d [aa]; Matter of MacDowell, 57 AD2d 169 ; Matter of Filipowicz, 54 AD2d 348 ; Matter of Herrmann, 175 App Div 310 ; Matter of Farrell, 237 App Div 678 ; Matter of Mogel, 18 AD2d 203 ; Matter of Feola, 37 AD2d 789 ; Matter of Gun

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derson, 75 AD2d 706 ; Matter of Martin v Ambach, 104 Misc 2d 938 , 85 AD2d 869 .)

OPINION OF THE COURT

This is a review of a determination that petitioner, a Town Court Justice in the Town of Mount Kisco, engaged in such misconduct that he should be removed from office. The members of this court agree that petitioner should no longer be allowed to serve in a judicial position.

In the early evening of October 25, 1981, petitioner entered a Mount Kisco tavern for a meeting with the business’s owner, who was one of petitioner’s legal clients. While he was in the bar, petitioner had a confrontation with some of the other patrons, primarily several black men. A heated exchange occurred, during which petitioner admittedly used abusive and profane language. Petitioner loudly proclaimed that he was a judge and announced what he would do if any of the black patrons appeared before him in court. The evidence, which includes testimony by a number of witnesses, establishes that petitioner embellished his threatening remarks with racial epithets. The record also shows that petitioner either struck or pushed one of the other customers. This incident did not end until after the police twice came to the tavern and, on the second occasion, petitioner left with his brother. There is no evidence or claim that petitioner was intoxicated at the time.

Petitioner proffers two grounds for justifying his conduct. First, he contends that he saw a drug transaction occur among the black men outside the bar and that he believed it necessary to remain inside so as to thwart any sales on the premises, which activity would have jeopardized his client’s liquor license. Even were this to be accepted as true, petitioner’s explanation does not excuse his behavior. Certainly, the same end could have been served by petitioner’s quietly remaining in the bar without swearing, yelling, or using racial slurs.

Petitioner’s other “justification” is that he felt that he could not leave because to do so would create the impression that judges can be intimidated. The judiciary has

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progressed beyond the stage where it is necessary to prove its fortitude by physical or verbal confrontation. Moreover, respect for the judiciary is better fostered by temperate conduct, not by hot-headed reactions to goading remarks in a bar.

Petitioner has also challenged the standard of proof — preponderance of the evidence — employed in judicial disciplinary proceedings (22 NYCRR 7000.6 [i] [1]), urging that the appropriate standard is clear and convincing evidence. It is unnecessary to determine whether the higher standard should be applied for we conclude in any event, as did the referee who initially heard this matter, that the charges are supported by clear and convincing evidence (see Matter of Steinberg, 51 NY2d 74 , 82, n 3).

Petitioner’s other arguments have been considered and are found to be without merit. Petitioner’s demonstration has rendered him unfit to serve the public trust as a judge.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Vincent T. Cerbone is removed from the office of Justice of the Mount Kisco Town Court.

Cases cited

Addington v. Texas 441 US 418 SCOTUS 1979-04-30 p. 94
Woodby v. Immigration & Naturalization Service 385 US 276 SCOTUS 1966-12-12 p. 94
Chaunt v. United States 364 US 350 SCOTUS 1960-11-14 p. 94
Schneiderman v. United States 320 US 118 SCOTUS 1943-06-21 p. 94
Santosky v. Kramer 455 US 745 SCOTUS 1982-03-24 p. 94
Ross v. Food Specialties, Inc. 6 NY2d 336 N.Y. 1959-07-08 p. 94
Amend v. Hurley 293 NY 587 N.Y. 1944-12-30 p. 94
Porter v. Commercial Casualty Insurance Co. 292 NY 176 N.Y. 1944-03-02 p. 94
In re the Estate of Findlay 253 NY 1 N.Y. 1930-02-11 p. 94
Benton v. Maryland 395 US 784 SCOTUS 1969-06-23 p. 94
Green v. United States 355 US 184 SCOTUS 1957-12-16 p. 94
Barnes v. Tofany 27 NY2d 74 N.Y. 1970-07-01 p. 94
Helvering v. Mitchell 303 US 391 SCOTUS 1938-03-07 p. 94
One Lot Emerald Cut Stones & One Ring v. United States 409 US 232 SCOTUS 1972-12-11 p. 94
Coffey v. United States 116 US 436 SCOTUS 1886-01-18 p. 94
United States v. La Franca 282 US 568 SCOTUS 1931-02-24 p. 94
Ex parte Wall 107 US 265 SCOTUS p. 94
Kuehnel v. State Commision on Judicial Conduct 49 NY2d 465 N.Y. 1980-03-18 p. 94
In re Steinberg 51 NY2d 74 N.Y. 1980-07-01 at 82 p. 94, p. 96
In re Kane 50 NY2d 360 N.Y. 1980-05-29 p. 94
In re Shilling 51 NY2d 397 N.Y. 1980-11-25 p. 94
Aldrich v. State Commission 58 NY2d 279 N.Y. 1983-03-24 p. 94
In re MacDowell 57 AD2d 169 N.Y. App. Div. 1977-04-25 p. 94
In re Filipowicz 54 AD2d 348 N.Y. App. Div. 1976-11-22 p. 94
In re Mogel 18 AD2d 203 N.Y. App. Div. 1963-03-26 p. 94
Martin v. Ambach 104 Misc 2d 938 N.Y. Sup. Ct. 1980-06-04 p. 95