In re Mazzei

should not have been formally charged under the Code of Professional Responsibility, in the exercise of our de novo review powers we disregard that technical defect and accept the determined sanction.

Petitioner’s mother, Carmela Mazzei, lived in petitioner’s home for several years until her death in April 1989. Around that time, petitioner received at his home a "pre-approved” application for a Chemical Bank Visa Gold card, with a $5,000 credit limit, addressed to Mrs. Mazzei. After Mrs. Mazzei died, petitioner completed the application in his mother’s name, simulated her signature, and requested an "authorized user’s” card for her son. Chemical received the application after expiration of the offer, and no credit card was issued at that time.

Later in 1989 Chemical sent to Carmela Mazzei a second preapproved Visa credit card application. Petitioner again filled out the form, forged his deceased mother’s signature, and requested an authorized user’s card for himself. As completed by petitioner, this application, like the previous one, contained a number of additional misstatements: (i) Mrs. Mazzei’s year of birth was listed as 1909 when in fact she would have been 10 years older; (ii) the stated income included Social Security payments when in fact they had terminated; (iii) Mrs. Mazzei’s employment was listed as "Retired” when in fact she was dead.

On December 4, Chemical opened a Visa credit card account in Mrs. Mazzei’s name and issued two cards: one for her, and another, bearing petitioner’s name, as an authorized user of the account. Petitioner placed his mother’s card in a desk drawer and signed the back of his own card.

Petitioner first used his card a week later at an Atlantic City casino, obtaining $2,000 from a cash machine. Petitioner’s attempts to obtain another $2,000 that evening were thwarted when Chemical’s computer, and then a supervisor in the bank’s fraud prevention department, froze the account pending verification of the user.

Petitioner called the bank on several occasions to inquire about the account, stating that Mrs. Mazzei wanted to use her card, but that she should not be contacted, to avoid upsetting her. Chemical’s investigation revealed that Mrs. Mazzei’s Social Security number had been used in connection with a claim for death benefits, and when confronted with that fact, petitioner suggested that his mother mistakenly supplied his

upon the highest level of judicial honesty and integrity. A Judge’s conduct that departs from this high standard erodes the public confidence in our justice system so vital to its effective functioning.

We have often said that removal, the ultimate sanction, should not be imposed for misconduct that amounts simply to poor judgment or even extremely poor judgment, but should be reserved for truly egregious circumstances (see, e.g., Matter of Kiley, 74 NY2d 364 , 369-370; Matter of Cunningham, 57 NY2d 270 , 275; Matter of Shilling, 51 NY2d 397 , 403). Judges, however, are held to higher standards of conduct than the public at large (Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279 , 283; see, Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462 , 468-469) and thus what might be acceptable behavior when measured against societal norms could constitute "truly egregious” conduct in the present context. Such fine distinctions are unnecessary here, however, because under any standard, petitioner’s conduct compels a sanction of removal.

Falsification of documents is inimical to the character required of a Judge (see, Matter of Reeves, 63 NY2d 105 , 110). Here, petitioner completed and submitted two fraudulent credit card applications, deceiving the bank into believing that the applicant was Carmela Mazzei, and that she was alive (compare, Matter of Bailey, 67 NY2d 61 , 62-63, supra). Petitioner aggravated that misconduct by actually using the fraudulently-obtained card to procure $2,000, and making further misrepresentations to bank personnel investigating the case (see, Matter of Levine, 74 NY2d 294 , 297).

That petitioner’s conduct was not directly related to his judicial office is immaterial in these circumstances (see, 22 NYCRR 100.2 [a] ["A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; emphasis added]; Matter of Bailey, 67 NY2d, at 62-63 [false statements to obtain hunting license]). Nor does petitioner’s alleged motivation of deceiving his wife — not the bank — mitigate the objective conduct.

Petitioner also contends that the complaint erroneously charged a violation of DR 1-102 (A) (4) of the lawyer’s Code of Professional Responsibility. We agree that it is improper for the Commission, which has no power to discipline attorneys, to formally charge a violation of the Code (compare, Matter of

Lenney, 71 NY2d 456 , 459). While of course a Judge admitted to the Bar "shall not * * * [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation” (DR 1-102 [A] [4]), the proscription against such conduct is perforce included in the more generally-worded judicial code of conduct (see, 22 NYCRR 100.1, 100.2 [a]). The potential prejudice in formally charging violations of the lawyer’s ethical code in judicial disciplinary proceedings is that determinations by the Commission (or this Court on review) might erroneously be perceived as binding in subsequent proceedings to discipline the Judge as a lawyer. Inasmuch as we have de novo review power in this proceeding, however, it is unnecessary to remit to the Commission to correct the technical error (see, Matter of Gelfand, 70 NY2d 211 , 216-217). It is undisputed that petitioner violated the Code of Judicial Conduct, and we conclude that removal is the appropriate sanction.

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Smith concur in Per Curiam opinion; Judge Bellacosa taking no part.

Determined sanction accepted, without costs, and Rudolph L. Mazzei is deemed removed from the office of Judge of the County Court, Suffolk County.