Majority
OPINION OF THE COURT
By formal written complaint, the State Commission on Judicial Conduct brought two misconduct charges against petitioner Jean Marshall, Justice of the Cuyler Town Court, Cortland County. In charge one, the Commission alleged that petitioner had engaged in improper ex parte communications with the defendants in several building code violation cases and then dismissed the cases in advance of the adjourned dates without providing the prosecutor notice or an opportunity to be heard. Charge two alleged that, during the investigation, petitioner testified falsely at a Commission proceeding and altered her court calendar to conceal the deception. In her .answer, petitioner essentially admitted to the conduct alleged in charge one but did not respond to the accusations of false testimony and record alteration.
Neither the Commission nor this Court is bound to accept the Referee’s findings (see Matter of Reeves, 63 NY2d 105 [1984]; 22 NYCRR 7000.6 [f] [1] [iii]). In judicial misconduct cases, this Court has the authority to review findings of fact as well as to determine the appropriate sanction (NY Const, art VI, § 22 [d]; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349 , 353 [1984]).
The record demonstrates that, on December 29, 2003, petitioner engaged in improper ex parte conversations with three defendants concerning the merits of their cases and told them that they did not have to appear in court that evening, as had been scheduled. Hours later, at the court session, petitioner told the town’s attorney and the code enforcement officer that the cases would be adjourned to January 26, 2004, and she wrote that date in her court calendar. Prior to the adjourned date, however, on January 13, 2004, petitioner issued a letter order dismissing the cases sua sponte without providing the town’s attorney or code enforcement officer an opportunity to be heard.
When later questioned by the Commission, petitioner repeatedly testified falsely that she had not adjourned the cases. She also used white-out to conceal the adjourned date originally written in her court calendar. We are not persuaded by petitioner’s claim that this was merely a routine alteration intended only to update the status of the cases and therefore conclude that both charges should be sustained.
Petitioner’s actions violated the high standards of integrity and conduct required of the Judiciary. Although “the use of a Judge’s lack of candor’ as an aggravating circumstance should be approached cautiously to minimize the risk that the investigative process itself will be used to generate more serious sanctions,” removal is appropriate “where the Judge who was to be sanctioned gave patently false explanations to the Commission despite contrary objective proof’ (Matter of Kiley, 14: NY2d 364, 371, 370 [1989]). That is precisely what happened here.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.
Determined sanction accepted, etc.
Cases cited
- Poster v. Poster 4 AD3d 145 p. 742
- Slater v. Links at North Hills 262 AD2d 299 p. 742
- Loughran v. Cruickshank 8 AD3d 799 p. 742
- Bellnier v. Bellnier 158 AD2d 947 p. 742
- Quinn v. State Commission on Judicial Conduct 54 NY2d 386 p. 742
- In re Reeves 63 NY2d 105 p. 742, p. 743
- In re Kiley 74 NY2d 364 p. 742
- In re Blackburne 7 NY3d 213 p. 742
- In re Steinberg 51 NY2d 74 p. 742
- Spector v. State Commission on Judicial Conduct 47 NY2d 462 p. 742
- In re Mogil 88 NY2d 749 p. 742
- In re Feinberg 5 NY3d 206 p. 742
- In re Sims 61 NY2d 349 at 353 p. 742, p. 743
- In re Going 97 NY2d 121 p. 742
- In re Collazo 91 NY2d 251 p. 742
- In re Myers 67 NY2d 550 p. 742
- In re Gelfand 70 NY2d 211 p. 742
- In re Intemann 73 NY2d 580 p. 742