Matter of Mulroy
| Decision Date | 06 April 2000 |
| Citation | 94 N.Y.2d 652,731 N.E.2d 120,709 N.Y.S.2d 464 |
| Parties | In the Matter of J. KEVIN MULROY, a Judge of the Onondaga County Court, Petitioner. STATE COMMISSION ON JUDICIAL CONDUCT, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Emil M. Rossi, Syracuse, and J. Scott Porter for petitioner.
Gerald Stern, New York City, and John J. Postel for respondent.
Mackenzie, Smith, Lewis, Michell & Hughes, L. L. P., Syracuse (Dennis R. Baldwin of counsel), for County Judges Association of the State of New York, amicus curiae. Hancock & Estabrook, L. L. P., Syracuse (Stewart F. Hancock, Jr., of counsel), for Onondaga County Bar Association Assigned Counsel Program, Inc., amicus curiae.
Frederick O'Rourke, Syracuse, and Kate Rosenthal for Syracuse Association of Defense Lawyers, amicus curiae.
Petitioner, a Judge of the County Court, Onondaga County, asks us to review a determination of the State Commission on Judicial Conduct, sustaining four of seven charges of misconduct and removing him from office (see, NY Const, art VI, § 22; Judiciary Law § 44). The Commission concluded that petitioner failed to maintain the "high standards of conduct" necessary to uphold the integrity of the judiciary (22 NYCRR 100.1; see, Code of Judicial Conduct Canon 1); acted in a manner inconsistent with "the integrity and impartiality of the judiciary" (22 NYCRR 100.2 [A]; see, Code of Judicial Conduct Canon 2 [A]); used his position to advance his own private interests (22 NYCRR 100.2 [C]; see, Code of Judicial Conduct Canon 2 [B]); failed to act in a "dignified and courteous" manner (22 NYCRR 100.3 [B] [3]; see, Code of Judicial Conduct Canon 3 [A] [3]); engaged in conduct manifesting a bias based upon race, gender, age and national origin (22 NYCRR 100.3 [B] [4]; see, Code of Judicial Conduct Canon 1); and initiated an ex parte communication with an attorney for the purpose of resolving a pending case (22 NYCRR 100.3 [B] [6]; see, Code of Judicial Conduct Canon 3 [A] [4]).
After a three-day evidentiary hearing, the Referee found against petitioner on six of the seven charges. The Referee determined that petitioner, while attempting to influence a disposition, made derogatory racial remarks about a crime victim (charge I); displayed intemperate behavior and pressed a prosecutor to offer a plea for petitioner's own personal convenience (charge II); used vulgar language to characterize a criminal defendant's statements at sentencing (charge III); made disparaging remarks about Italian-Americans (charge IV); failed to disclose his relationship with a witness appearing before him (charge VI); and testified at a proceeding with reckless disregard for the truth (charge VII).
A majority of the Commission sustained the Referee's findings with respect to charges I, II, IV and VII, dismissed the remaining charges and determined that petitioner should be removed. While all nine members present sustained charges I and IV, they divided on the remaining charges and on the issue of sanction. Three members found the evidence insufficient to support charge II and three members found the evidence insufficient to support charge VII. Two members voted for censure rather than removal. Although petitioner admits some wrongdoing, he contends that the Commission failed to sustain its burden of proof on certain charges, and that the sanction of removal is excessive in light of his "12-year unblemished" record. Having reviewed the record de novo, we conclude that the Commissioner's determination is supported by a preponderance of the evidence, and that the sanction of removal is appropriate.
With respect to charge I, the evidence establishes that petitioner made derogatory racial remarks about a crime victim in an attempt to induce a plea offer. While attending a charity event, petitioner initiated a conversation with a prosecutor concerning a pending, four-defendant murder case. During that conversation, he urged the prosecutor to "be reasonable" in offering pleas to two of the defendants, and that he should not worry about "giving away" the case because no one cared, since the 67-year-old murder victim was "just some old nigger bitch." These words, as well as the context in which they were uttered, are indefensible. Petitioner's racially charged assessment of the case not only devalued the victim's life but also cast doubt on the integrity and impartiality of the judiciary and, by itself, puts into question petitioner's fitness to hold judicial office (Matter of Assini, 94 NY2d 26, 29-30).
Although petitioner admits the impropriety of his remarks, he asserts that they were private, isolated statements that were not intended to influence a disposition. He claims that the prosecutor was frustrated because another Judge had suppressed the confession of one of the defendants, and that he was concerned about having to offer a plea to a codefendant in exchange for his cooperation. In an apparent attempt to alleviate the prosecutor's concerns, petitioner asked him whether, in offering a plea, the District Attorney's office might be perceived as not caring about the victim. The Referee, however, having had the opportunity to assess petitioner's responses firsthand, rejected his rationalized version of the remarks and we, like the Commission, uphold that determination (see also, Matter of Schiff, 83 NY2d 689, 692-693
; Matter of Esworthy, 77 NY2d 280, 282; Matter of Agresta, 64 NY2d 327, 330; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465, 468-469).
Moreover, petitioner's disparaging remarks were not isolated. In 1996, petitioner was at a charity dinner when the Oneida County District Attorney, an Italian-American, greeted him and asked him how his reelection campaign was progressing. When petitioner complained about having to run against an opponent, the District Attorney replied, "some of us have to run for office and others get it handed to them on a silver platter." Petitioner retorted, "You know how you Italian types are with your Mafia connections." Two people seated at petitioner's table witnessed the exchange. One, also an Italian-American, testified that she was offended by petitioner's remarks, while the other, a fellow Judge, admonished petitioner. Petitioner not only concedes the impropriety of his comments but also admits to having made similar ethnically charged comments to his...
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