Pfingst, Matter of

• Decision Date: 29 December 1973
• Citation: 409 N.Y.S.2d 986
• Parties: In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Joseph P. PFINGST, Justice of the Supreme Court, Tenth Judicial District.
• Court: New York Court on the Judiciary

Page 986

409 N.Y.S.2d 986

In the Matter of the Proceedings Pursuant to Section 22 of

Article VI of the Constitution of the State of New York in

Relation to Joseph P. PFINGST, Justice of the Supreme Court,

Tenth Judicial District.

Court on the Judiciary.

Dec. 29, 1973.

Order on Motion for Reconsideration Feb. 20, 1974.

Before FULD, P. J., and BURKE, MARKEWICH, SHAPIRO, STALEY and MOULE, JJ.

OPINION ON REMOVAL

PER CURIAM.

Judge Joseph P. Pfingst (hereafter referred to as the respondent) was elected in 1968 to serve as a Justice of the Supreme Court for the Tenth Judicial District for a term of 14 years. In 1972, he was convicted in the United States District Court for the Eastern District of New York on charges that in 1966, while he was a practicing lawyer, he fraudulently transferred and concealed corporate assets in contemplation of bankruptcy (U.S.Code, tit. 18, § 152). The crimes charged against him, and of which he was adjudged guilty, are felonies under Federal law, and he was sentenced on each of three counts of a ten-count indictment to imprisonment of a term of three years. ¹ The judgment of conviction was affirmed by the United States Court of Appeals for the Second Circuit (477 F.2d 177) and a petition for a writ of certiorari was denied by the Supreme Court (412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400). ² Thereafter, on July 3, 1973, the respondent moved for a new trial on the ground that he had discovered information relating to the alleged suppression of evidence by the Government. That motion was denied after a six day hearing and the denial was affirmed by the Second Circuit on December 17, 1973.

Charges of misconduct, based on his conviction, were filed against the respondent in this Court on the Judiciary in May of 1973 and, by order, dated May 7, the court, having made a preliminary finding that the charges stated facts sufficient, if true, to justify his removal, suspended the respondent without pay. In his answer to the charges, the respondent admits that he was convicted of the crimes above referred to and that he was sentenced to imprisonment but denies, on a number of grounds, that such conviction constitutes cause for his removal from office. More specifically, the respondent's answer contains a number of denials and 12 defenses the net effect of which is that he is entitled to relitigate the issue of his guilt that was resolved by his conviction. We find that position untenable. Significantly, the respondent concedes that he has no evidence to offer not available to him upon the trial in the Federal court, nor has he claimed that the witnesses against him had committed perjury or had recanted their testimony (cf. Matter of Keogh, 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163).

The power to remove a Justice of the Supreme Court is vested in the Court on the Judiciary by section 22 of article VI of this State's Constitution; paragraph a of that section provides, insofar as pertinent, that "Any * * * justice of the supreme court * * * may be removed for cause * * * after due notice and a hearing by a court on the judiciary." " Cause," it has previously been held, "is an inclusive, not a narrowly limited term." (Matter of Osterman, 13 N.Y.2d (a), (p), cert. den. 376 U.S. 914, 84 S.Ct. 660, 11 L.Ed.2d 611; see, also, Friedman v. State of New York, 24 N.Y.2d 528, 539-540, 301 N.Y.S.2d 484, 493-494, 249 N.E.2d 369, 376; Matter of Friedman, 12 N.Y.2d (a), (e), app. dsmd. 375 U.S. 10, 84 S.Ct. 70, 11 L.Ed.2d 40; Matter of Sarisohn, 26 A.D.2d 388, 389-390, 275 N.Y.S.2d 355, 357, mot. for lv. to app. den. 19 N.Y.2d 689, 278 N.Y.S.2d 878, 225 N.E.2d 566, cert. den. 393 U.S. 1116, 89 S.Ct. 991, 22 L.Ed.2d 121; Matter of Kane v. Rudich, 256 App.Div. 586, 587, 10 N.Y.S.2d 929, 930; Matter of Newman v. Strobel, 236 App.Div. 371, 259 N.Y.S. 402; cf. State v. Redman, 183 Ind. 332, 339-340, 109 N.E. 184; Ann., 42 ALR 3d 691, 712-719.) It is, of course, " 'impossible to enumerate in any statute all the possible grounds and circumstances justifying the removal of a judicial officer.' " (Friedman v. State of New York, 24 N.Y.2d 528, 539, 301 N.Y.S.2d 484, 493, 249 N.E.2d 369, 376, Supra.) The purpose of the constitutional provision authorizing such removal is, quite obviously, to protect the integrity of judicial office and to assure that result the term "cause" has been deemed to encompass not only corruption and wrongdoing while in office but conduct affecting general character and fitness for office as well as acts which justify a finding that the Judge's retention of office is "inconsistent" with the fair, proper and wholesome administration of justice. (Matter of Droege, 129 App.Div. 866, 882, 114 N.Y.S. 375, 386, app dsmd. 197 N.Y. 44, 90 N.E. 340; Friedman v. State of New York, 24 N.Y.2d 528, 540, 301 N.Y.S.2d 484, 494, 249 N.E.2d 369, 376, Supra; Matter of Osterman, 13 N.Y.2d (a), (p), cert. den. 376 U.S. 914, 84 S.Ct. 660, 11 L.Ed.2d 611, Supra; Matter of Kane v. Rudich, 256 App.Div. 586, 587, 10 N.Y.S.2d 929, 930, Supra.)

It matters not that the misconduct charge occurred prior to the Judge's ascension to the Bench. (See Matter of Sarisohn, 26 A.D.2d 388, 389, 275 N.Y.S.2d 355, 357, mot. for lv. to app. den. 19 N.Y.2d 689, 278 N.Y.S.2d 878, 225 N.E.2d 566, cert. den. 393 U.S. 1116, 89 S.Ct. 991, 22 L.Ed.2d 121, Supra; See also, Friedman v. State of New York, 24 N.Y.2d 528, 539, 301 N.Y.S.2d 484, 493, 249 N.E.2d 369, 376, Supra; State v. Redman, 183 Ind. 332, 339-340, 109 N.E. 184; Ann., 42 A.L.R.3d 691, 712-719, Supra.) "A judicial officer is nonetheless unfit to hold office and the interests of the public are nonetheless injuriously affected," the court wrote in the Sarisohn case (26 A.D.2d, at p. 389, 275 N.Y.S.2d at p. 358), "even though the misdeeds which portray his unfitness occurred prior to assuming such office." ³

In the case before us, the crimes of which respondent was convicted constitute "cause" under section 22 of article VI of the Constitution even though they were committed before the respondent had become a Judge. Not only did they involve moral turpitude (Ann., 52 A.L.R.2d 1314) but, as noted above, they constituted serious felonies under Federal law, each punishable by imprisonment for a term of three years. The fact that the respondent had been elected to his office does not impair or affect this court's power to remove him. It would be amazing doctrine to permit a Judge to remain on the Bench and decide cases following his conviction for serious crimes, punishable by imprisonment for three years, for which he was actually sentenced to prison. (See State v. Redman, 183 Ind. 332, 340-341, 109 N.E. 184, Supra.) In short, to allow a Judge convicted of a crime involving moral turpitude to continue in office would foster public distrust of the whole judicial process.

We also find without merit the respondent's attacks upon the validity of his conviction (First, Second, Third, Fourth, Fifth, Sixth, Seventh Defenses). The general rule in disbarment proceedings is that a conviction is at least "prima facie" evidence of guilt (Matter of Keogh, 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163, Supra; Matter of Donegan, 282 N.Y. 285, 293, 26 N.E.2d 260, 263; see, also, State v. Twitchell, 59 Wash.2d 419, 367 P.2d 985,...