In re Jung
| Decision Date | 28 October 2008 |
| Docket Number | No. 150,150 |
| Citation | 11 N.Y.3d 365,899 N.E.2d 925 |
| Parties | In the Matter of David F. JUNG, a Judge of the Family Court, Fulton County, Petitioner. State Commission on Judicial Conduct, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Petitioner, a Judge of the Family Court, Fulton County, commenced this proceeding to review a determination of the State Commission on Judicial Conduct that sustained five charges of misconduct against him and imposed the sanction of removal from judicial office. Upon our plenary review of the record, we accept the determined sanction.
After serving as a law guardian for more than a decade, in 1989 petitioner was elected to the Fulton County Family Court and in 1992 he was appointed to serve as an Acting Supreme Court Justice. In 2005, petitioner presided over a series of Family Court cases that form the basis of the Commission's findings. By formal complaint dated December 6, 2006, the Commission served him with five charges. Charges I, II and III alleged violations of litigants' right to be heard and of sections 100.1, 100.2(A) and 100.3(B)(1) and (6) of the Rules Governing Judicial Conduct (22 NYCRR). Charges I, IV and V alleged violations of litigants' right to counsel and violations of the same sections.*
On April 19, 2007, petitioner, his counsel and Commission counsel entered into a stipulation of facts. A hearing was held on April 26, 2007, and the Referee accepted the stipulation into evidence. Petitioner testified, called two witnesses to testify on his behalf, and submitted additional affidavits attesting to his character. On September 7, 2007, the Referee sustained all five charges based on petitioner's violation of litigants' rights when he entered defaults and sentenced them, in absentia, to jail. The Commission unanimously sustained all charges, concluding that petitioner violated the cited sections of the Rules Governing Judicial Conduct, and imposed the sanction of removal, noting that as a consequence of petitioner's disregard of fundamental rights, five litigants were sentenced to significant terms of incarceration and at least three served several months in jail on the unlawful sentences he imposed.
Charge I alleged that while presiding over the case of Matter of Wendy Lynn Hohenforst v. Thomas DeMagistris, petitioner violated the defendant's due process rights, including the right to be heard and the right to counsel, when he summarily held DeMagistris in default on two family offense petitions and sentenced him in absentia to two consecutive 180-day terms of incarceration notwithstanding that defendant was being held in a courthouse holding cell throughout the proceeding.
Outside of the courtroom prior to a family offense proceeding before petitioner, DeMagistris verbally assaulted counsel for his children's mother, Hohenforst, and was placed in a Family Court holding cell. Petitioner thereafter convened a proceeding in the courtroom and placed on the record a description of the incident, stating that DeMagistris was not in the courtroom because he had been placed under arrest for "criminal behavior" and had thus waived his right to appear. Subsequently, petitioner dismissed counsel for both parties upon their own motions without inquiry as to whether DeMagistris had notice of his counsel's request. Upon excusing counsel for the mother, petitioner asked if she wanted an adjournment, which she declined. Following an inquest, petitioner granted the relief she requested, including divesting DeMagistris of custody of his children, dismissed defendant's cross motion for failure to prosecute, and sentenced defendant to a year of incarceration. Petitioner directed that DeMagistris be served with the orders if he was still in the holding cell.
DeMagistris was released by Supreme Court's grant of a writ of habeas corpus (see Matter of Hohenforst v. DeMagistris, 44 A.D.3d 1114, 844 N.Y.S.2d 450 [3d Dept. 2007]).
Charge II alleged that in Matter of Fulton County Department of Social Services v. Angelic Constantino, petitioner violated Constantino's due process rights when he failed to order her produced in court although he knew she was incarcerated in a correctional facility outside the county, summarily found her in default, sentenced her in absentia to six months' incarceration, and revoked her custodial rights.
At the time, petitioner's long-standing policy was that "incarcerated litigants had to request of the court to be produced by the court." After unsuccessful attempts to contact petitioner's court, Constantino, incarcerated in another county, failed to appear for an April 11, 2005 hearing before petitioner on a custody petition and an allegation that she had violated an order of protection. Although petitioner knew that the Fulton County Department of Social Services had served Ms. Constantino with the petition in Schenectady County jail, and acknowledged having been told by counsel for the father's parents that Constantino was in jail, petitioner denied that he had actual knowledge that she was in jail, as he considered counsel's statement hearsay. He later maintained that if Constantino "has a normal IQ and she didn't know to ask [for an order to produce] ... it's her responsibility to find out." He stated, further, that although the summons did not alert her to his policy, she was obligated to find out by "word of mouth." On April 12, 2005, Constantino called the court from jail and asked why she had not been produced. Court staff informed her of petitioner's policy and advised her to put her concerns in writing, which she did with the assistance of attorney in a letter dated April 15, 2005. Her attorney was told that as "no request was received from Angelic Constantino and the court was in receipt of an affidavit of service," the matter had proceeded upon default.
Constantino was released by Supreme Court's grant of a writ of habeas corpus, affirmed by the Appellate Division (see People ex rel. Constantino v. Lorey, 28 A.D.3d 1041, 815 N.Y.S.2d 292 [3d Dept. 2006]).
Charge III alleged that in Matter of Julie A. Dacre v. Dennis A. DaCorsi, Jr., petitioner violated DaCorsi's due process rights when, knowing that DaCorsi was incarcerated and unable to appear, he found him in default and sentenced him to nine months in jail.
DaCorsi was due to appear before petitioner on a custody petition on April 28, 2005. According to petitioner's docket sheet, DaCorsi's sister called on April 27, 2005 and informed the court that her brother had been arrested but was due to appear in Family Court the following day. A clerk told her that either the sheriff or DaCorsi himself would have to contact the court and ask that he be produced. Petitioner was informed (although the actual date is in dispute) that someone claiming to be DaCorsi's sister had called, but testified that he had "no idea if it was his sister" and if it was that she "could have gone over to the jail with a piece of paper to sign and she could have delivered it to the court and I would have produced him." Petitioner explained that, in any event, he did not consider the sister's call a request to produce.
Petitioner held DaCorsi in default, and after an inquest DaCorsi lost custody of his children and was sentenced in absentia to consecutive terms of 90 days' and 180 days' incarceration. On June 16, 2006, petitioner granted DaCorsi's motion to vacate the default judgment and for petitioner's disqualification.
Charge IV maintained that in Matter of Dale A. Rulison v. Nickie L. Smith, petitioner violated Smith's right to counsel when he denied her request for assigned counsel as late, summarily affirmed a magistrate's order that found her in default when she failed to appear for a hearing on a child support matter, and sentenced her to 90 days in jail.
It was petitioner's policy that a litigant seeking assigned counsel in a family offense proceeding had to apply for a public defender within two weeks of initial appearance, regardless of the date of the hearing. On January 12, 2005, Smith appeared before a support magistrate to answer charges that she had violated an order of support. She requested counsel and was given an application for the public defender, and the matter was adjourned until April 27, 2005. On February 8, 2005, Smith submitted an application for representation by a public defender in the child support matter. Petitioner said the application was late and on February 14, 2005 denied it as untimely. On February 14, 2005, Smith also submitted an application for representation in a custody and visitation matter. Petitioner approved that application on February 18, 2005.
On April 27, 2005, Smith failed to appear for the support hearing and the magistrate declared her in default and recommended that she be held in contempt. On May 18, 2005, Smith appeared before petitioner for a confirmation proceeding. Petitioner later explained that the confirmation hearing was When Smith attempted to defend herself against the petition, petitioner said "I didn't see any objections filed here," confirmed the magistrate's determination and sentenced Smith to jail. Smith said she had sought representation from the public defender and never heard anything; petitioner responded "you'll have to take it up with the Public Defender's Office." Petitioner testified that he did not see, upon reviewing her file, that Smith had been...
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... ... The husband adds that his need for a protective order is amplified because he has a right to counsel as a result of a potential finding of contempt for failure to pay according to the judgment and prior court orders. Matter of Jung, 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 (2008). The seizure of his retainer funds from his attorney defeats that right, he argues. In response, the wife suggests that there is no statutory or decisional authority supporting this claim. Both sides acknowledge that there is no ... ...
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In the Matter of Giovanni S. (anonymous).Admin. For Children's Serv.
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M.M. v. T.M.
... ... The husband adds that his need for a protective order is amplified because he has a right to counsel as a result of a potential finding of contempt for failure to pay according to the judgment and prior court orders. Matter of Jung, 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 (2008). The seizure of his retainer funds from his attorney defeats that right, he argues. In response, the wife suggests that there is no statutory or decisional authority supporting this claim. Both sides acknowledge that there is no ... ...
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