Vaccaro, Matter of
| Decision Date | 26 September 1977 |
| Citation | 409 N.Y.S.2d 1009 |
| 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 Frank VACCARO, Justice of the Supreme Court, Second District. |
| Court | New York Court on the Judiciary |
Before MARKEWICH, P. J., and MOULE, CARDAMONE, KANE and MAIN, JJ.
On May 11, 1976 a proceeding against respondent, a Justice of the Supreme Court Fourteen acts of judicial misconduct, contained in 11 charges, were alleged by the State Commission on Judicial Conduct against respondent. The Referee sustained four of the charges: Charge VIII(a) (the acceptance of a weekend stay at Kutsher's County Club for respondent and his wife paid by the law firm of respondent's long-time close personal friend); Charge VII (registering under the name and address of a partner of that same law firm without that person's permission, thereby concealing respondent's identity); Charge X (failing to disqualify himself from cases in which his law secretary's law partner appeared in respondent's court on behalf of one of the parties); and Charge XI (failing to disqualify himself from presiding over a nonjury Small Claims trial in which his close friend was a party defendant).
in the Second Judicial District, was commenced by order of the Court on the Judiciary. Subsequently, a new Court on the Judiciary was appointed to conform to section 22 of article VI of the New York Constitution. The matter was referred to a Referee to conduct a hearing and make findings with respect to the charges against respondent. A hearing was held before the Referee from March 7 through March 29, 1977.
Based upon an examination of both the transcript of testimony and Referee's report, we confirm the Referee's findings which were established by a fair preponderance of the credible evidence. As to the charges reported as not sustained, we agree with the Referee that the evidence presented on each was insufficient. Furthermore, we confirm the Referee's procedural rulings and find that respondent was accorded due process throughout. The affirmative defenses are without merit and are dismissed. The interim procedural rulings of the Referee are confirmed. The sole question remaining for our consideration is the sanction to be imposed.
In order to determine the appropriate sanction, it is necessary to examine briefly the confirmed charges. In connection with Charge VIII(a) we note that respondent exercised poor judgment and engaged in injudicious conduct. Although there is no evidence that respondent gave either his long-time friend, Gerald Garson, or his law firm special favor or treatment in any matter before him, despite the long-standing intimate and personal social relationship with his long-time friend, the Referee found that it was injudicious of respondent to spend a weekend with his wife at a hotel as a guest of a law firm because such is beyond the permissible ordinary social hospitality permitted by the Code of Judicial Conduct (. With respect to Charge VII, it is clear that respondent signed Louis Goldberg's name when registering at Kutsher's at the behest of one of Goldberg's partners. The Referee found, however, that although respondent may not have intended to conceal his identity, he did create the objective impression on the records of the hotel that he was Louis Goldberg which was both injudicious and in violation of the Canons of Judicial Ethics (Canons 1, 4, 13).
Charge X related to conferences or settlements in cases where Robert G. Stern, a law partner of respondent's law secretary, appeared before respondent. The Referee found that respondent participated in only a handful of such cases over a three-year period while he was assigned as one part of a "troika" which handled thousands of cases. It must be observed that the settlement procedures described were carried on virtually publicly and mostly by the same groups of lawyers for both sides, long accustomed to dealing with each other in a mass effort to dispose of great numbers of calendar clogging cases in what might be characterized as a settlement mill. In the circumstances there could have been no opportunity, even assuming such a desire, for anything untoward to have taken place. Nevertheless, it was an exercise of poor judgment for respondent to have presided in these cases. In view of the large number of cases presented daily to respondent, the Referee found respondent's conduct here "excusable". Nevertheless, the Referee did find a technical violation of the Canons Finally, on Charge XI, although it was a judicial impropriety and a violation of the Canons of Judicial Ethics for respondent to sit on a case where his long-time friend appeared as a party defendant in a nonjury Small Claims Part, the case involved only a $106.81 claim and there were no allegations or evidence that the defendant received any preferential treatment or that injustice was perpetrated. However, the improper act did, as we have said, convey the impression of impropriety, and it is the primary basis for the sanction we impose.
even though no injustice of any kind was shown to have occurred.
We find no evidence in this record of corruption, general neglect of duty, acts violative of law inspired by self-interest, oppressive and arbitrary conduct, reckless disregard of litigants' rights or any finding that respondent's future retention of office is inconsistent with the fair and proper administration of justice in this State (Friedman v. State of New York, 24 N.Y.2d 528, 540, 301 N.Y.S.2d 484, 249 N.E.2d 369). Nor is there evidence of a "repeated and unrelenting display of unjudicial temperament" (Matter of Waltemade, 37 N.Y.2d (a), (hhh)). Thus, we conclude that there is insufficient evidence to indicate that respondent lacks the ability or fitness to perform the duties imposed upon him as a Supreme Court Justice. Accordingly, removal is unwarranted.
Nevertheless, with respect to the charges sustained and confirmed, respondent's conduct was injudicious and improper and, as such, constituted a serious transgression of the Code of Judicial Conduct and the Canons of Judicial Ethics. High standards of conduct must be observed by judicial officers so that the integrity and independence of the judiciary will be preserved. A Judge's official conduct should be free from the appearance of impropriety in his personal behavior on the Bench and his conduct in everyday life should be beyond reproach. He may engage in social and recreational activities so long as these do not detract from the dignity of his office or interfere with the performance of his judicial duties. Furthermore,...
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Schultz, Matter of
... ... State Commission might constitute cause for dismissal of charges pending before a Court on the Judiciary ... We find no basis for dismissing charges which are alleged to have occurred prior to the establishment of the State Commission (see, Matter of Vaccaro, 42 N.Y.2d (a), 409 N.Y.S.2d 1009; Matter of Richter, 42 N.Y.2d (aa), 409 N.Y.S.2d 1013 (Court on the Judiciary, 1977)) ... Respondent's motion to dismiss Charges II, IV and V based on the effective date of the Code of Judicial Conduct rests upon the mistaken premise that the ... ...