Richter, Matter of

• Decision Date: 31 October 1977
• Citation: 409 N.Y.S.2d 1013
• 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 Hubert RICHTER, a Judge of the City Court of Kingston, Third Judicial Department.
• Court: New York Court on the Judiciary

Page 1013

409 N.Y.S.2d 1013

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 Hubert RICHTER, a Judge of the City Court of Kingston, Third Judicial Department.

New York Court on the Judiciary.

Oct. 31, 1977.

Before MARKEWICH, P. J., and SUOZZI, MOLLEN, MOULE and CARDAMONE, JJ.

PER CURIAM.

Respondent, a Judge of the City Court of Kingston, has pending against him four separate charges, divided into specifications, of judicial misconduct in violation of established standards. We have had the benefit of the Referee's meticulous report of 68 pages, containing his findings and the reasons therefor, and have heard argument by counsel for both sides. Except where specifically stated to the contrary, we confirm the Referee's findings as well as his procedural rulings.

Charge I

THE MALANIOS CONFRONTATION

Malanios and two codefendants had pleaded guilty to a class A misdemeanor before respondent to cover a charge of attempted escape from the Ulster County Jail. All three were second felony offenders, awaiting sentence in County Court for separate felony convictions. The reduced plea before respondent was designed to expedite swift transfer to State prison, to which it was expected they would be committed by the County Judge. Though sentence by respondent was set for the day following the felony sentence, the warden, desiring quick riddance of these troublesome guests, dispatched them instead on the very same day to respondent's court for immediate sentence. This occurred on a Thursday which respondent, being a part-time Judge, usually devoted to his private office practice. On Thursday his judicial seat was taken as usual by a substitute Judge. The latter, unable to impose sentence for respondent, directed return of the prisoners to the county jail. The warden called respondent on the telephone, communicating his desire to get the prisoners on their way to Dannemora, and asked him to impose sentence forthwith; respondent agreed, and they were sent, handcuffed, to respondent's law office, without notice of any kind, either to their assigned counsel or to the District Attorney.

Malanios' codefendants were each given jail sentences of one year, to run concurrently with those imposed in County Court.

Malanios was sentenced to the same term, but to be served consecutively to the felony sentence. He complained vociferously and abusively, claiming a prior agreement for the treatment accorded the others. Respondent himself testified that his reaction was to come out from behind his desk and seat himself on the edge, folding his arms, and that he said, "Court is over now, it's Nick and Rick, and any way I can oblige you, I will be happy to do." Malanios responded with continued profane and obscene abuse, whereupon respondent directed his removal, following him to the door "a foot or two foot away from him", and admonished him to be quiet. Apparently the incident ended thus.

Later that day, respondent was called on the phone by Malanios' lawyer and his error in proceeding in the absence of counsel called to his attention. He stated that it had slipped his mind and he forthwith arranged to vacate the sentence, which he followed by resentence in proper fashion, to a more lenient term.

The charge specifications will now be taken up. It is charged (specification (a)) that respondent was intemperate, injudicious and abusive and exceeded his authority by conducting the sentencing in the absence of counsel and without giving notice that it was to be held earlier than scheduled. This is literally true. It is hornbook law that, as respondent acknowledged, error was committed which would have been reviewable on appeal had it gone uncorrected. The prisoners' testimony that they had warned respondent of the absence of counsel is not worthy of belief, and, when all the surrounding circumstances are taken into account, it is obvious that respondent's error was one of sheer inadvertence. (See Charge II below.) In terms of prejudice to anyone, the error was harmless. No inference of willful misconduct may be drawn as to this specification, and we agree with the Referee in not sustaining this charge.

Specification (b) charges injudicious conduct in that respondent carried on the sentencing in a private law office. Again, this is literally true. City Court facilities in Kingston were not exactly commodious. Respondent's regular courtroom, occupied that day by his substitute, was the City Council Chamber. The evidence before the Referee is that use of facilities other than a courtroom for court proceedings in rural and semirural areas of the State is not uncommon. We know of no prohibition in law thereof, as long as the facility used is open to the public and otherwise lends itself to the purpose. The court had no choice in these circumstances but to use the office for the described purpose. The community is responsible for providing court facilities, and not respondent. We agree with the Referee in not sustaining the charge.

Specification (c) charges failure to keep a proper record of the proceeding. We are not told wherein this was judicial misconduct. The evidence was to the effect that no provision is made in this type of court for a qualified court reporter to attend at sentences. It is not shown that, in this court not of record, respondent failed to keep his own written record. Again, if respondent should have had a reporter record the sentence, the community should have provided such a service, and it did not. The Referee did not sustain the charge, and we agree.

The next two specifications, (d) and (e), must be read together: they allege that respondent engaged in an angry physical confrontation with Malanios, expressing his intention and willingness to engage in a fight with him. Actually, there was no physical contact between them in the two aspects of confrontation, one at the desk, and the other at the door. The first was calm, and, had it not been followed by the scene at the door, might be deemed injudicious only in that it was silly. In words, it was a challenge, but Malanios was obviously not in a position to pick up the gauntlet. But the provocation an explanation, not an excuse continued, and, as respondent acknowledged, he became angry, and continued the verbal conflict. Nevertheless Charge III

respondent's conduct was unseemly, injudicious, and intemperate, and we confirm the Referee's report, sustaining this charge to the extent we indicate, i. e., engaging in an angry verbal exchange of words with a defendant and leaving the Bench to continue it in the immediate presence of the prisoner.

THE SCHISKIE CONFRONTATION

This charge, in two specifications, is reminiscent of the Malanios matter. In specifications (a) and (b), respondent is charged with having been intemperate, injudicious and abusive and having acted in excess of authority by leaving the Bench, approaching a defendant, angrily demanding an apology from him, and striking him. Schiskie was on the floor in the custody of three officers. Schiskie, a longtime offender, had been arraigned before respondent on several charges involving appropriation of a truck loaded with television sets. When bail was set at $10,000, after respondent at first forgot to do so, the defendant called respondent several unprintable names. Respondent directed the officers to bring defendant closer to the Bench, whereupon, as respondent testified, defendant "violently objected, kicked, fought them, and prevented it * * * continued to scuffle and * * * was knocked to the floor." Respondent said that "after sometime" while Schiskie was still struggling and "was in serious danger * * * of being hurt", he "went over to Schiskie" bending "over at the waist", and said to him "Is this what you want? Why don't you apologize?" Continuing, he said that defendant attempted three times to spit at him, which was when he "gave him the motion with the back of the left hand", not intending to hit him but "to show * * * contempt for him." Respondent's description of Schiskie's conduct was completely corroborated by a disinterested witness, waiting for disposition of his traffic infraction. (possibly irrelevant but interesting is the fact that the corroborating witness was later convicted and fined by respondent.) The request for apology met with another stream of Schiskie's obscenities. When defendant fell to the floor, continued the witness, respondent left the Bench, stood over him and attempted to restore order, "trying to reason with him", while the defendant tried to swing at him. Schiskie alone said respondent struck him; the witness waiting for disposition of his case said that respondent did no more than block Schiskie's swing; respondent himself indicated that whatever contact there was derived from his contemptuous gesture of dismissal. He described it at one time as that of a king dismissing a subject. Schiskie alone said that respondent kicked him. The evidence against the specification which charged striking its overwhelming, and that specification is not sustained either by the Referee or by us. However, to the extent that respondent "left the bench and * * * demanded an apology from the defendant who was on the floor in * * * custody", we disagree with the Referee and sustain that specification. We refrain deliberately from characterizing the manner in which this was done as "angrily", but we consider it injudicious and an impropriety for a Judge to leave the Bench in the circumstances described and to make himself a participant in the action. If the officers present were doing their duty and apparently they were it was not for respondent to become involved by his immediate presence at the scene. If there was risk of injury to defendant, the court could have controlled matters by directions from the Bench. Neither here, nor in the Malanios situation was it appropriate for respondent to leave the...