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In re Fabrizio

65 N.Y. 275 Court N.Y. Decision date 1985-06-13 English

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In the Matter of Ronald L. Fabrizio, a Justice of the New Windsor Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
Argued May 28, 1985;
decided June 13, 1985
POINTS OF COUNSEL
John J. Hayden for petitioner.
I. Petitioner was deprived of due process of law when respondent made a removal determination based on a standard which was unconstitutional. (In re Gault, 387 US 1 ; Matter of Storar, 52 NY2d 363 ; Addington v Texas, 441 US 418 ; Ross v Food Specialties, 6 NY2d 336 ; Amend v Hurley, 293 NY 587 ; Porter v Commercial Cas. Ins. Co., 292 NY 176 ; Santosky v Kramer, 455 US 745 ; Woodby v Immigration Serv., 385 US 276 .) II. The number of charges against Judge Fabrizio — eight in all — should not be used as the basis to determine the sanction to be imposed by the court, and Judge Fabrizio should be given a censure, the same sanction which was imposed upon other members of the Orange County judicial system. (Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465 ; Matter of Bolte, 97 App Div 551 ; Matter of Owen, 47 NY2d [jjj]; Matter of Byrne, 47 NY2d [jjj]; Matter of Lahey, 45 NY2d [y].) III. The layman Judge should not be removed as the misconduct either deemed proven by this court, or admitted by the Judge, was not truly egregious. (Matter of Steinberg, 51
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NY2d 74 ; Matter of Owen, NY2d [jjj]; Friedman v State of New York, 24 NY2d 528 .) IVj. Petitioner should not be subjected to any discipline — whether by way of admonishment, censure or suspension — because his testimony before the Commission differed from the testimony of the administrator’s witnesses before the Commission. V. The finding that petitioner used racial epithets while acting in his official capacity was not proven by clear and convincing evidence, accordingly that charge of judicial misconduct should not be sustained by the Court of Appeals. VI. Assuming arguendo that racial epithets were used out of court and out of the presence of minority defendants, nevertheless the sanction of removal should not be applied. (Matter of Cerbone, 61 NY2d 93 .) VII. The remaining charges were not proven by clear and convincing evidence or by a fair preponderance of the evidence, and accordingly, the court should not accept the determination of the Commission.
Alan W. Friedberg, Gerald Stern and Jean M. Savanyu for respondent.
I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (People v Davis, 43 NY2d 17 ; Matter of Byrne, 47 NY2d [b]; Matter of Kuehnel v State Commn. on Judicial Conduct, 45 NY2d [y]; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32 ; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523 ; Matter of Reedy, 64 NY2d 299 ; Matter of Jones, 47 NY2d [mmm]; Matter of Filipowicz, 54 AD2d 348 ; Matter of Agresta, 64 NY2d 327 .) II. The standard of proof employed by the Commission is in accord with constitutional standards. (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 Capoccia, 59 NY2d 549 ; Steadman v SEC, 450 US 91 ; Walters v McLucas, 597 F2d 1230 , 444 US 932 ; Alsbury v United States Postal Serv., 530 F2d 852 , 429 US 828 ; Polcover v Secretary of Treasury, 477 F2d 1223 , 414 US 1001 ; Santosky v Kramer, 455 US 745 .)

OPINION OF THE COURT

The credible testimony establishes that petitioner, in the relatively short period that he has served as a Town Justice, engaged in numerous instances of egregious misconduct, including the seeking of special consideration for two defendants in other courts, using racial slurs, altering transcripts, advising bis court reporter to change stenographic notes that had been subpoenaed by the Commission on Judicial Conduct, and sitting

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on a small claims casé in which the defendant was his dentist for 10 years without disclosing the relationship or offering to disqualify himself. In addition, petitioner attempted to impede the Commission’s investigative efforts throughout by falsifying evidence and intimidating witnesses.

Petitioner’s actions violated numerous sections of the Rules Governing Judicial Conduct (22 NYCRR 100.1,100.2,100.3 [a], [c]), the Code of Judicial Conduct (Canons 1,2,3 [A], [C]) and the Special Rules Concerning Court Decorum promulgated by the Appellate Division, Second Department (22 NYCRR 700.5 [a], [e]). Contrary to petitioner’s assertion, the fact that he is a nonlawyer is not a factor in mitigation. The Code of Judicial Conduct applies to “[a]nyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions” (Compliance With Code of Judicial Conduct, McKinney’s Cons Laws of NY, Book 29, Appendix, p 539) and the Rules Governing Judicial Conduct should be similarly construed to further the objective of maintaining the “independent and honorable judiciary” which is “indispensible to justice in our society” (22 NYCRR 100.1).

In short, petitioner has clearly abused the power of his office in a manner that has brought disrepute to the judiciary and damaged public confidence in the integrity of his court. This breach of public trust calls for the sanction of removal from office (see, Matter of McGee v State Commn. on Judicial Conduct, 59 NY2d 870 ).

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

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Titone and Boomer[1] concur in Per Curiam opinion; Judge Alexander taking no part.

Determined sanction accepted, without costs, and Ronald L. Fabrizio is removed from his office of Justice of the New Windsor Town Court, Orange County.

* Designated pursuant to NY Constitution, article VI, § 2.

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