Duckman, Matter of

• Decision Date: 07 July 1998
• Citation: 699 N.E.2d 872,677 N.Y.S.2d 248,92 N.Y.2d 141
• Parties: , 699 N.E.2d 872, 1998 N.Y. Slip Op. 6627 In the Matter of Hon. Lorin M. DUCKMAN, a Judge of the Criminal Court of the City of New York, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 248

677 N.Y.S.2d 248

92 N.Y.2d 141, 699 N.E.2d 872, 1998

N.Y. Slip Op. 6627

In the Matter of Hon. Lorin M. DUCKMAN, a Judge of the

Criminal Court of the City of New York, Kings

County, Petitioner.

State Commission on Judicial Conduct, Respondent.

Court of Appeals of New York.

July 7, 1998.

Ronald G. Russo and Richard W. Levitt, New York City, for petitioner.

Gerald Stern, Robert H. Tembeckjian and Jean M. Savanyu, New York City, for respondent.

Russell M. Gioiella and Thomas H. Burt, New York City, for New York Criminal Bar Association, amicus curiae.

Scott H. Greenfield, New York City, for New York State Association of Criminal Defense Lawyers, amicus curiae.

OPINION OF THE COURT

PER CURIAM.

The State Commission on Judicial Conduct has determined that petitioner, since April 1991 a Judge of the Criminal Court of the City of New York (Bronx County, 1991-1994; Kings County, 1994-1996), engaged in various acts of misconduct demonstrating a pattern of injudicious behavior that renders him unfit to continue in office. Given petitioner's acknowledgment before us of many of the alleged acts of wrongdoing, the central issue on his appeal to this Court is one of appropriate sanction: should he be removed from office or censured? Like the Commission, we conclude that removal is the appropriate sanction.

I.

In a Formal Written Complaint dated June 5, 1996, the Commission charged that petitioner had willfully disregarded the law, displayed intemperate demeanor, abused the power of his office and exhibited bias against the prosecution. With 363 specifications, the Complaint made two formal charges. Charge I asserted that between October 1991 and February 1996 petitioner

"in the exercise of his judicial duties, willfully disregarded provisions of law that resulted in the improper dismissal of criminal charges, delivered ad hominem criticisms and injudicious lectures to assistant district attorneys that unfairly attributed to them improper and harsh values and judgments in their role as prosecutors and made intemperate, derisive and otherwise inappropriate comments to assistant district attorneys. * * * [B]y reason of the foregoing, [petitioner] abused the power of his office, displayed evident bias against the prosecution, and acted in a manner inconsistent with and prejudicial to the fair and proper administration of justice."

Charge II alleged that between May 1992 and December 1995, petitioner engaged in certain specific acts of "intemperate and injudicious conduct." Petitioner denied all wrongdoing.

On November 6, 1996, Matthew J. Jasen, appointed by the Commission as Referee, commenced hearings that continued over a period of 20 days. The evidence included the testimony of 67 witnesses (29 for petitioner, 38 for the Commission), consuming more than 4,000 transcript pages, and 200 exhibits. In addition, the record before us includes a "Book of Letters," 112 letters largely from practitioners who appeared before petitioner--both as prosecutors and as defense counsel--attesting to his personal and professional qualities.

On May 28, 1997, the Referee filed his Report, a 157-page document summarizing in detail the evidence with respect to each alleged act of misconduct, annotated to the record (for the most part transcripts of court proceedings conducted by petitioner, and petitioner's own testimony).

In his "Findings of Fact" the Referee found that petitioner had committed all but one of the acts of misconduct charged (he sustained all but five specifications; two were withdrawn by the Commission). As "Conclusions of Law" the Referee determined that petitioner had violated the State Constitution, as well as specified provisions of the Code and Rules of Judicial Conduct. He further rejected the notion that it is common practice for Judges of the Criminal Court to engage in the misconduct found, and even if it were, each Judge individually "must abide by the ethical standards required of judges in the unified court system, and neither calendar congestion nor a judge's frustration excuses or mitigates the pattern of misconduct reflected in these findings of fact and conclusions of law." Finally, the Referee concluded that petitioner's "expressed belief in the propriety of his undisputed conduct, as set forth in the findings as to Charge [II], demonstrates a failure to recognize that such conduct was improper, and a failure to appreciate the proper roles of a Judge and a prosecutor in the criminal justice system."

Commission counsel then moved to confirm the Report and for a determination that petitioner be removed from office. Petitioner opposed the motion.

Petitioner waived confidentiality and on September 11, 1997, the Commission heard oral argument in a public session, at which both petitioner and his counsel appeared. Thereafter, the Commission considered the record of the proceeding and made findings of fact, concluding that petitioner violated several provisions of Canons 1, 2A and 3 of the Code of Judicial Conduct as well as the Rules Governing Judicial Conduct. Charges I and II were sustained insofar as they were consistent with the Commission's findings (several additional specifications of the Commission's complaint were not sustained), petitioner's misconduct was deemed established, and the Commission held that petitioner should be removed from office. A 50-page Appendix to the Commission's Determination describes each of the specifications of misconduct found by the Commission.

All 11 members agreed that petitioner had engaged in serious misconduct by his knowing disregard of the law and by his intemperate, disparaging name-calling of young prosecutors and insensitive remarks. The Commission, however, issued five separate opinions, and it split seven-to-four on the issue of sanction. While the seven members agreed unanimously on the wrongdoing warranting removal, three would have gone further in their findings--two members underscoring petitioner's "consistent and outrageous disregard of the law," and a third underscoring "the gravity of the misconduct found with respect to Charge II" and the fact that petitioner "repeatedly made inappropriate comments concerning gender and race which are antithetical to the role of a judge." Of the four Commission members who voted for censure rather than removal, one expressed the view that "a jurist who has sat on over 50,000 cases should not be removed for misconduct in only 19 cases." The other three, while agreeing that petitioner had committed serious judicial misconduct, asserted that, given all of the facts and circumstances, the appropriate sanction was censure.

After careful review of the evidence, we conclude that the Commission's determination sustaining the charges is supported by a preponderance of the evidence and that the sanction of removal is warranted (N.Y. Const., art. VI, § 22; Judiciary Law § 44).

II.

In our view, the credible evidence--indicating wrongdoing both in connection with case dispositions and in court proceedings generally--was sufficient to support the Commission's findings of misconduct. Given the voluminous record, as well as the extensive factual digests already set forth both in the Commission's Determination and in the Referee's Report, ¹ we will not particularize all of the individual incidents but instead will more broadly indicate the categories of misconduct into which they fall.

Misconduct in Connection with Case Dispositions: Largely consisting of transcripts of court proceedings before petitioner, the evidence establishes that petitioner willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal (ACDs). Cases were dismissed without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor. What is significant for present purposes is both that petitioner dismissed these cases in knowing disregard of requirements of the law (see, e.g., CPL 140.45, 170.30, 170.35, 170.40, 170.45, 170.55, 210.45), and the abusive, intemperate behavior he manifested in dismissing those cases, at times not permitting the attorney to make a record of an objection either to the disposition or in response to the accusations.

In the overwhelming number of these cases it is clear that petitioner dismissed accusatory instruments for facial insufficiency because the prosecutor refused to agree to petitioner's requests for an ACD or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted. Petitioner explained to the Commission that "there were times where [he] did things in the interests of justice, using the guise of facial insufficiency" to dispose of a case when he "thought it was right to do it." In his words:

"Sometimes in an effort to do justice, I used the vehicle of dismissals for facial insufficiency without making defense attorneys put their motions in writing, without giving the people an opportunity to amend or redraft, and sometimes without giving the people an opportunity to be heard fully."

Illustratively, in one case where defendant was charged with menacing in the third degree for pointing what appeared to be a gun at children, at arraignment petitioner told the prosecutor "it's an ACD or it's dismissed." Petitioner refused to allow the prosecutor to present his argument as to why the accusatory instrument was in fact facially sufficient, denied his request that the dismissal motion be in writing and, after warning him not to "just come up with some nonsense and tell me you want the opportunity to redraft," petitioner denied the prosecutor's request to rewrite the accusatory instrument. Petitioner also cautioned the prosecutor that he should "ACD and maintain...