Kiley, Matter of
| Decision Date | 24 October 1989 |
| Citation | 546 N.E.2d 916,547 N.Y.S.2d 623,74 N.Y.2d 364 |
| Parties | , 546 N.E.2d 916 In the Matter of Edward J. KILEY, a Judge of the District Court of Suffolk County, Petitioner. State Commission on Judicial Conduct, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
In this proceeding we are called upon to review a determination of the State Commission on Judicial Conduct removing from office the petitioner, a Judge of the Suffolk County District Court, for certain acts of judicial misconduct. After having reviewed all of the evidence before the Commission, we conclude that censure, rather than removal, is the appropriate sanction.
On May 10, 1988, the Commission served a complaint upon petitioner containing four charges of misconduct. The charges alleged that in October and November 1987, petitioner interceded on behalf of the defendants in two criminal proceedings, lent and appeared to lend the prestige of his judicial office to advance their private interests, and failed to disqualify himself from one of the proceedings. Petitioner was specifically charged with having initiated several ex parte communications with the prosecutors, in People v. Matthew Begg, and with the Judge and prosecutor in People v. John Hopkins Jr., for the purpose of seeking lenient treatment for the defendants (charges 1 & 3). Petitioner was also charged with giving testimony which was lacking in candor in 15 specified instances during the Commission's investigation (charges 2 & 4). In its determination dated April 3, 1989, the Commission sustained charges 1 and 3 in toto, charge 2 in part, and dismissed charge 4 concluding that petitioner violated sections 100.1, 100.2, 100.3(a)(1), 100.3(a)(4), 100.3(c)(1) and 100.3(c)(1)(i) of the Rules Governing Judicial Conduct (22 NYCRR), and Canons 1, 2, 3 A(1), 3 A(4), 3 C(1) and 3 C(1)(a) of the Code of Judicial Conduct. We now review the determination upon petitioner's request (Judiciary Law § 44[7], [9].
Petitioner received a call from John Hopkins Sr., a close family friend, who informed petitioner that Hopkins' son, John Jr., had been arrested for armed robbery. Petitioner had known the Hopkins family for approximately 12 years and was aware that the family had recently suffered a series of tragedies. Specifically, the overdose death of one son, and the death, during childbirth, of another son's paramour, leaving the senior Hopkins to care for a two year old, and a pair of infant twins, one of whom was born severely brain damaged. Petitioner informed Hopkins that he would be in the courthouse when Hopkins Jr. would be arraigned.
Prior to arraignment, petitioner approached the Assistant District Attorney (A.D.A.) who was handling the case, and told him that he had represented the defendant in the past and that the defendant had a good record of appearing in court as scheduled. Petitioner also informed the A.D.A. of the recent tragedies that had befallen the defendant's family. Petitioner then stopped at the chambers of the Judge assigned to the case, and informed the Judge of the same facts and circumstances.
Petitioner, a former New York City police officer, attended a reunion of officers from his former precinct. At the reunion, one of petitioner's friends told petitioner that the son of another retired officer named Begg had a "problem" of unspecified nature in the Suffolk County courts. Petitioner subsequently discovered that the Begg case, which involved criminal trespass, had been assigned to him.
When People v. Begg appeared on petitioner's docket sheet, petitioner summoned the A.D.A. into his chambers, and inquired as to why he was not offering to dispose of this minor trespass case with an adjournment in contemplation of dismissal (ACOD). The A.D.A. explained that an ACOD disposition would contravene his office's policy because there had been repeated problems with youths on the property in question. Petitioner then summoned the A.D.A.'s supervisor, disclosed to both prosecutors that he would like an ACOD in this case because the defendant's father was a police officer with whom petitioner had once worked, and stated that an ACOD would be "appreciated." When the supervisor informed petitioner that the ACOD would not be possible, petitioner responded that that was okay. The three then returned to the courtroom. Even though the case was scheduled for trial before another Judge, petitioner did not disqualify himself from the case, nor disclose on the record that he had had a conversation with a friend concerning the case.
Initially we note that we are empowered to "review the commission's findings of fact and conclusions of law" as well as to "impose a less or more severe sanction" than imposed by the Commission (N.Y. Const., art. VI, § 22[d]; Matter of Spector, 47 N.Y.2d 462, 418 N.Y.S.2d 565, 392 N.E.2d 552). Upon full factual review of the evidence adduced before the Referee (N.Y. Const., art. VI, § 22[d]; Judiciary Law § 44[9], we find the allegations contained in charges 1 and 3 sustained by the evidence. We also agree that charge 4 should be dismissed in toto. We conclude, however, that charge 2 should also be dismissed in toto since the evidence adduced by the Commission fails to sustain a lack of candor charge.
Petitioner acted improperly in both the Hopkins and Begg cases because he lent and appeared to lend the prestige of his office to advance the respective defendant's private interests. Although petitioner was initially charged with 10 specified instances of lack of candor surrounding his discussions with both the A.D.A. and the arraigning Judge in the Hopkins case, the Commission sustained only a part of one specification of that charge finding petitioner to be "evasive and less than forthcoming" in failing to admit that one of the motivations underlying his discussions with the Judge and prosecutor was to have a relatively low bail imposed on Hopkins. We disagree with this conclusion.
Importantly, neither the Commission nor the Referee made any finding that petitioner discussed the amount of bail with either the A.D.A. or the arraigning Judge. In addition, there is no other independent, objective evidence indicating that petitioner's statement of his intentions was false. There exists merely a disagreement concerning petitioner's intent or purpose--whether petitioner's goal was simply to provide information or to cast favor on defendant as a bail risk. While the fact that petitioner discussed background information with the arraigning Judge and the A.D.A. resulted in the objective appearance that he intended to influence the bail disposition, we cannot conclude, solely on the basis of the fact that the discussions occurred, that petitioner dissembled at the hearing when he refused to admit that his subjective intention was to influence the bail disposition (but see, Matter of Gelfand, 70 N.Y.2d 211, 215, 518 N.Y.S.2d 950, 512 N.E.2d 533 []; Matter of McGee, Commn. on Jud. Conduct, Apr. 12, 1984 [petitioner's claim that he intended only to ascertain amount of bail rather than recommend low bail or release belied by objective proof where both arraigning Judge and prosecutor testified otherwise].
Finally, we agree with the Referee's finding, adopted by the Commission, that the remaining nine instances of alleged lack of candor in charge 2, and the five alleged instances in charge 4, are nothing more than a mere lack of recall on the part of petitioner. Thus charge 4 was rightly dismissed. In addition, we note that minor discrepancies in factual testimony, which may result from an honest difference in recollection, do not necessarily constitute a lack of candor.
Although we find that the record does support a finding of misconduct, we cannot agree with the Commission's conclusion that petitioner's misconduct warrants the sanction of removal. We have repeatedly noted that removal is the ultimate sanction and should be imposed only in the event...
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