Matter of Duckman

699 N.E.2d 872, 92 N.Y.2d 141, 677 N.Y.S.2d 248, 1998 N.Y. LEXIS 1831

• Court: New York Court of Appeals
• Decided: July 7, 1998
• Status: Published

Opinions

OPINION OF THE COURT

Per Curiam.

The State Commission on Judicial Conduct has determined that petitioner, since April 1991 a Judge of the Criminal Court of the City of New York (Bronx County, 1991-1994; Kings County, 1994-1996), engaged in various acts of misconduct demonstrating a pattern of injudicious behavior that renders him unfit to continue in office. Given petitioner’s acknowledgment before us of many of the alleged acts of wrongdoing, the central issue on his appeal to this Court is one of appropriate sanction: should he be removed from office or censured? Like the Commission, we conclude that removal is the appropriate sanction.

I.

In a Formal Written Complaint dated June 5,1996, the Commission charged that petitioner had willfully disregarded the law, displayed intemperate demeanor, abused the power of his office and exhibited bias against the prosecution. With 363 specifications, the Complaint made two formal charges. Charge I asserted that between October 1991 and February 1996 petitioner

“in the exercise of his judicial duties, willfully disregarded provisions of law that resulted in the improper dismissal of criminal charges, delivered ad hominem criticisms and injudicious lectures to assistant district attorneys that unfairly attributed to them improper and harsh values and judgments in their role as prosecutors and made intemperate, derisive and otherwise inappropriate comments to assistant district attorneys. * * * [B]y reason of the foregoing, [petitioner] abused the power of his office, displayed evident bias against the prosecution, and acted in a manner inconsistent with and prejudicial to the fair and proper administration of justice.”

Charge II alleged that between May 1992 and December 1995, petitioner engaged in certain specific acts of “intemperate and injudicious conduct.” Petitioner denied all wrongdoing.

On November 6, 1996, Matthew J. Jasen, appointed by the Commission as Referee, commenced hearings that continued over a period of 20 days. The evidence included the testimony of 67 witnesses (29 for petitioner, 38 for the Commission), consuming more than 4,000 transcript pages, and 200 exhibits. In addition, the record before us includes a “Book of Letters,” 112 letters largely from practitioners who appeared before petitioner — both as prosecutors and as defense counsel — attesting to his personal and professional qualities.

On May 28, 1997, the Referee filed his Report, a 157-page document summarizing in detail the evidence with respect to each alleged act of misconduct, annotated to the record (for the most part transcripts of court proceedings conducted by petitioner, and petitioner’s own testimony).

In his “Findings of Fact” the Referee found that petitioner had committed all but one of the acts of misconduct charged (he sustained all but five specifications; two were withdrawn by the Commission). As “Conclusions of Law” the Referee determined that petitioner had violated the State Constitution, as well as specified provisions of the Code and Rules of Judicial Conduct. He further rejected the notion that it is common practice for Judges of the Criminal Court to engage in the misconduct found, and even if it were, each Judge individually “must abide by the ethical standards required of judges in the unified court system, and neither calendar congestion nor a judge’s frustration excuses or mitigates the pattern of misconduct reflected in these findings of fact and conclusions of law.” Finally, the Referee concluded that petitioner’s “expressed belief in the propriety of his undisputed conduct, as set forth in the findings as to' Charge [II], demonstrates a failure to recognize that such conduct was improper, and a failure to appreciate the proper roles of a Judge and a prosecutor in the criminal justice system.”

Commission counsel then moved to confirm the Report and for a determination that petitioner be removed from office. Petitioner opposed the motion.

Petitioner waived confidentiality and on September 11, 1997, the Commission heard oral argument in a public session, at which both petitioner and his counsel appeared. Thereafter, the Commission considered the record of the proceeding and made findings of fact, concluding that petitioner violated several provisions of Canons 1, 2A and 3 of the Code of Judicial Conduct as well as the Rules Governing Judicial Conduct. Charges I and II were sustained insofar as they were consistent with the Commission’s findings (several additional specifications of the Commission’s complaint were not sustained), petitioner’s misconduct was deemed established, and the Commission held that petitioner should be removed from office. A 50-page Appendix to the Commission’s Determination describes each of the specifications of misconduct found by the Commission.

All 11 members agreed that petitioner had engaged in serious misconduct by his knowing disregard of the law and by his intemperate, disparaging name-calling of young prosecutors and insensitive remarks. The Commission, however, issued five separate opinions, and it split seven-to-four on the issue of sanction. While the seven members agreed unanimously on the wrongdoing warranting removal, three would have gone further in their findings — two members underscoring petitioner’s “consistent and outrageous disregard of the law,” and a third underscoring “the gravity of the misconduct found with respect to Charge II” and the fact that petitioner “repeatedly made inappropriate comments concerning gender and race which are antithetical to the role of a judge.” Of the four Commission members who voted for censure rather than removal, one expressed the view that “a jurist who has sat on over 50,000 cases should not be removed for misconduct in only 19 cases.” The other three, while agreeing that petitioner had committed serious judicial misconduct, asserted that, given all of the facts and circumstances, the appropriate sanction was censure.

After careful review of the evidence, we conclude that the Commission’s determination sustaining the charges is supported by a preponderance of the evidence and that the sanction of removal is warranted (NY Const, art VI, § 22; Judiciary Law § 44).

II.

In our view, the credible evidence — indicating wrongdoing both in connection with case dispositions and in court proceedings generally — was sufficient to support the Commission’s findings of misconduct. Given the voluminous record, as well as the extensive factual digests already set forth both in the Commission’s Determination and in the Referee’s Report,¹ we will not particularize all of the individual incidents but instead will more broadly indicate the categories of misconduct into which they fall.

Misconduct in Connection with Case Dispositions: Largely consisting of transcripts of court proceedings before petitioner, the evidence establishes that petitioner willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal (ACDs). Cases were dismissed without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor. What is significant for present purposes is both that petitioner dismissed these cases in knowing disregard of requirements of the law (see, e.g., CPL 140.45, 170.30, 170.35, 170.40, 170.45, 170.55, 210.45), and the abusive, intemperate behavior he manifested in dismissing those cases, at times not permitting the attorney to make a record of an objection either to the disposition or in response to the accusations.

In the overwhelming number of these cases it is clear that petitioner dismissed accusatory instruments for facial insufficiency because the prosecutor refused to agree to petitioner’s requests for an ACD or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted. Petitioner explained to the Commission that “there were times where [he] did things in the interests of justice, using the guise of facial insufficiency” to dispose of a case when he “thought it was right to do it.” In his words:

“Sometimes in an effort to do justice, I used the vehicle of dismissals for facial insufficiency without making defense attorneys put their motions in writing, without giving the people an opportunity to amend or redraft, and sometimes without giving the people an opportunity to be heard fully.”

Illustratively, in one case where defendant was charged with menacing in the third degree for pointing what appeared to be a gun at children, at arraignment petitioner told the prosecutor “it’s an ACD or it’s dismissed.” Petitioner refused to allow the prosecutor to present his argument as to why the accusatory instrument was in fact facially sufficient, denied his request that the dismissal motion be in writing and, after warning him not to “just come up with some nonsense and. tell me you want the opportunity to redraft,” petitioner denied the prosecutor’s request to rewrite the accusatory instrument. Petitioner also cautioned the prosecutor that he should “ACD and maintain the peace.” When the prosecutor refused, petitioner dismissed the charge on concededly improper grounds. The prosecutor’s reply, “Over the People’s objection,” evoked the following diatribe:

“the court: Please don’t say that. It’s not over your objection. My objection is that you can’t stand here and act like a lawyer. How are you going to proceed in this case? It’s not over your objection. You are supposed to come into court — don’t smile, put that down and look at me — I said to look at me, Mr. Petrillo. I am going to tell you what offends me. I tell you fifty times, it’s not over your objection, you are given an opportunity to be heard. When you can’t make out the charges, the charges are dismissed. These are people’s lives. Based on that nonsense, you had a person go to jail. What am I supposed to say to you, about the lack of respect that I have for you prosecuting a person, when you don’t have a case? You don’t have an objection. You are just mouthing some words that somebody told you, for no reason, and insulting me, and I am insulted and I don’t want to hear it again.

“me. petrillo: I did not intend to insult—

“the court: Did I ask you to talk; did I? You told me it was over your objection, and I am telling you what my objection is and I speak last. He does it all the time, and you do it all the time and lawyérs don’t do that. They stand up here and do what they are supposed to do. You can’t come up here, with a facially insufficient complaint, and say ‘we are moving to dismiss or we are ACD’ing it.’ It’s too bad we don’t have more who do. The case is over. I am not listening to you. Move away. Next case. Don’t do it again. If you smile, you are going to find out what power I really have. Do you understand that? Do you understand that; yes or no?

“mr. petrillo: Yes, I do.”

A transcript from another case reflects a similar colloquy between petitioner and two prosecutors:

“the court: You want to ACD? Dismiss or ACD. That is your choice.

“mr. sack: Judge I am not prepared to do either right now.

“the court: You have a reason for that? Is there something I said — that was wrong?

“mr. sack: Judge, I am reviewing the write-up.

“the court: I think I gave you five minutes to look at it and — Ms. Rice, you have a problem? Stand up. I didn’t ask you to talk.

“ms. rice: Do I have a problem, your Honor?

“the court: I didn’t ask you to talk. Then leave the courtroom and solve your problem.

“ms. rice: You want me to leave now?

“the court: Don’t you shirk and give me weird looks, okay.

“ms. rice: I apologize, your Honor, if I gave—

“the court: Here we go again. You want to dismiss or ACD the cases, Mr. Sack?

“mr. sack: Judge, I see that a count is not charged. I therefore, with the Court’s permission, move to add that to the Complaint at this time—

“the court: Your application is denied. You charged him with this. ACD or dismiss. If you want to rearrest him or go, go to their houses and charge them with the Administrative Code violation. Are you ready to do it?

“me. sack: With all due respect, your Honor, the factual allegations in the complaint do make out—

“the court: Didn’t I just dismiss your application? You want me to — you want to say it five more times? When I ask you and I rule that is it. Go on to the next point.

“me. sack: My next point, Judge, is to ask for bail.

“the court: Charges dismissed. Good day.”

Apart from knowingly disregarding procedural requirements of the law to reach his desired result, petitioner on his own dismissed a drunk driving prosecution, over the prosecutor’s objection, where he thought a conviction would be unlikely,² and assumed facts where his own life experience suggested police misconduct. Court transcripts, for example, show petitioner in one case surmising that “defendant had taken a beating for causing two police officers to chase him for three blocks.” There having been no prior mention of a beating in the transcript, during the hearing before the Referee petitioner explained that his belief was based on the fact that defendant “looked rather disheveled.”

Again, in another proceeding, petitioner speculated on the record: “Somebody in a car with a gun, police officer goes to the car and they don’t move — the cops then try to do something to get them out * * * [w]hat they did to get them out of the car, whether they were abused, grabbed, hit, berated.” And in yet another, where defendant was charged with obstructing governmental administration and disorderly conduct based on allegations that he had interfered with his brother’s arrest, court transcripts indicate that petitioner insisted that the prosecutor agree to an ACD. When the prosecutor refused, petitioner asked defense counsel for a motion and dismissed the charges. In response to questioning before the Commission, petitioner admitted that he did not give proper notice before dismissing the charges, but it was his opinion that defendant only pushed the officer to protect his brother from injury. He knew his view was the correct one because he had “talkfed] to a lot of people” and had heard from defense counsel “what was going on here.” Petitioner explained: “I read things into cases and I’m not wrong about these things.”

In yet another matter, the accusatory instrument charged defendant with assault in the third degree and harassment based on allegations that defendant “struck [the victim] with closed fist in the face, causing swelling and bruising to the face and to suffer substantial pain and to be alarmed.” Petitioner argued that the prosecutor did not allege facts to make out an assault and described the alleged punch in the face as a “push”: a “push is not an assault * * * It’s harassment.” After defendant pleaded guilty to harassment, petitioner asked defense counsel whether he wanted to move to dismiss the assault charge. Although the prosecutor argued that the victim “received swelling and bruising to the face” and suffered pain, petitioner rejected the prosecutor’s argument as a “conclusion,” and dismissed the misdemeanor assault for facial insufficiency.

In addition, petitioner knowingly disregarded statutory requirements in dismissing charges in the interest of justice, and twice imposed an ACD without the consent of prosecutors, berating them in the process. For example, the dismissal in the interest of justice involved a charge of theft of services for allegedly entering the New York City subway, in the Bronx, without paying a fare; defendant at the time had a similar charge pending against him in New York County, and four prior class A misdemeanor convictions. When the prosecutor refused petitioner’s request for a plea to disorderly conduct, with time served, petitioner lectured her about the need for jobs and health care, said she was not “doing justice” and was being “unreasonable” and dismissed the case, in knowing disregard of the requirements of a written motion for such relief and reasons for such dismissal set forth on the record (see, CPL 210.45, 170.40, 170.45).

Misconduct in Court Proceedings Generally: The 16 cited instances of knowing disregard of the law are not the only credible evidence supporting the charges. Well beyond those proceedings, the Commission documented instances of petitioner’s inappropriate behavior in his dealings with persons appearing before him, demonstrating impatience and intolerance, even at times ordering prosecutors who disagreed with him out of the courtroom.

Petitioner, for example, subjected prosecutors to harsh, personal criticisms when they would not accept his view as to the “worth” of a case. Petitioner admitted to the Commission that he chastised prosecutors for their bail recommendations because he did not want to be criticized for setting low bail. As one prosecutor reported in testimony before the Referee, after his bail recommendation petitioner accused him of “making him look bad in front of the audience.” Petitioner asked another prosecutor if her bail recommendations were the “result of [her] middle-class background”; another was criticized as “too lofty” to appear in his court; another as having “no guts.” Petitioner’s lectures about the unfair actions of “your society” or “your government” at times elicited laughter or applause in the courtroom.

Petitioner conceded that on several occasions he made derisive remarks in open court referring to prosecutors’ allegiance to their office policies, calling them “good little soldiers,” “good little soldier boys,” “mannequins” and “puppets,” or commenting that they were “earning another stripe on the arm” or “notch on the belt” every time they put someone in jail. In open court, he called them nicknames, such as “Princess” or “Princess Nancy,” “Mr. Nuisance,” and “Marshal Dillon” or “the Marshal.” As lawyers testified, they felt belittled, degraded and demeaned by petitioner’s open-court sarcasm and ridicule.³

In the case of one prosecutor who is visually impaired, petitioner heatedly accused him of having broken his lectern by leaning on it. Petitioner, who was admittedly “distraught,” “upset,” “shocked” and “dismayed” by the damage to the lectern, told the prosecutor that he would “teach” him “how to properly stand up in court.” Petitioner concedes that his law clerk “calmed [him] down” by assuring him that the lectern could be fixed. A year later, when petitioner ran into the prosecutor after business hours at a restaurant bar near the courthouse, he said in a manner that was “not kidding” or “jovial” — “he’s the one who broke my lectern.”

Petitioner told one female prosecutor that she was “too sexy” to wear flat shoes and that she had “nice legs” (petitioner denied the first comment but acknowledged the second); he admittedly told another that she looked better in shorter skirts. In a case involving two African-American women, court transcripts reveal that petitioner, attempting to explain to a prosecutor why his disposition of the case — an ACD — was appropriate, stated: “At the risk of sounding racist and sexist, [the case] is really just two women, and you know sometimes certain things are just cultural.” While petitioner strongly denies any racist pr sexist bias, he admits making “isolated statements” which he characterizes as “aberrational in character,” reflecting a familiarity not appropriate to his position.⁴

Incidents such as these, plainly inappropriate behavior for any Judge, are multiplied throughout the evidence and persuade us that the charges have been sustained.

III.

Having concluded from the proven facts that petitioner willfully disregarded the law, abused the power of his office and engaged in injudicious behavior, we reach the crux of the present appeal: whether removal or public censure is appropriate (see, NY Const, art VI, § 22 [d]). We agree with the Commission that petitioner should be removed.

“[T]he purpose of judicial disciplinary proceedings is ‘not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents’ ” (Matter of Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [III]). The actual levels of discipline to be imposed by the Court for judicial misconduct are, in the end, “institutional and collective judgment calls” (Matter of Roberts, 91 NY2d 93, 97). They rest on our assessment of the individual facts of each case, as measured against the Code and Rules of Judicial Conduct and the prior precedents of this Court. Not surprisingly, in the intensely fact-specific inquiry before us the parties differ in their view of the more analogous precedent. Petitioner urges us to look to Matter of LaBelle (79 NY2d 350), where the Court concluded that the Commission had overstated both the number and the nature of petitioner’s transgressions regarding commitments without bail and then rejected the determined sanction of removal in favor of censure. The Commission, in contrast, considers more pertinent Matter of Sardino v State Commn. on Judicial Conduct (58 NY2d 286, 292), where the Court upheld a determination that the individual under review had “ ‘so distorted his role as a judge as to render him unfit to remain in judicial office’.”

While finding no four-square precedent — each judicial misconduct appeal truly stands on its own facts — we note that several of petitioner’s arguments are analogous to arguments made by the Judge, and ultimately rejected by this Court, in Sardino (see also, Matter of Reeves, 63 NY2d at 110-111, supra). We underscore, however, that this case is neither Sardino nor LaBelle.

Like petitioner here, Judge Sardino argued that he in fact felt no bias, nor was he motivated by animosity or self-interest. As this Court observed, however, the perception of impartiality is as important as actual impartiality: Judges must conduct themselves “in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property” (Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d at 290-291, supra; see also, Code of Judicial Conduct Canon 2 [A]; 22 NYCRR 100.2 [a “judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities”]; 22 NYCRR 100.2 [A] [a “judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”]).

Similarly, petitioner in Sardino argued unsuccessfully that the number of abuses — 62 over a two-year period — should not be viewed in isolation from his seven-year career on the Bench. As the Court noted, the number of abuses was not insignificant and, if viewed in the context of Sardino’s entire career, would at best “establish that his behavior was erratic, which itself is inconsistent with a Judge’s role” (58 NY2d at 291, supra). Here, too, petitioner urges that we credit his otherwise unblemished performance in a high-stress, high-volume court. The Court, however, has resisted any numerical yardstick for determining unfitness (see, Matter of Hamel, 88 NY2d 317; Matter of Esworthy, 77 NY2d 280; Matter of VonderHeide, 72 NY2d 658; Matter of Sims, 61 NY2d 349). Rather, it must be the nature of the proven wrongdoing as well as the numbers that determine the appropriate sanction.

Moreover, in Sardino, as we do here, the Court questioned the veracity of the argument that many other Judges engaged in similar misconduct and concluded that, in any event, such evidence would be irrelevant. “Each Judge is personally obligated to act in accordance with the law and the standards of judicial conduct. If a Judge disregards or fails to meet these obligations the fact that others may be similarly derelict can provide no defense” (Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d at 291, supra; see also, Code of Judicial Conduct Canons 1, 3 [A] [1]; 22 NYCRR 100.1 [a “judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved”]; 22 NYCRR 100.3 [B] [1]). Nor are Judges, in the interest of alleviating regrettable court congestion — or indeed, even in the interest of empathy for defendants — free to ignore the law in order to weed out cases they personally feel are unworthy of prosecution or clogging the system.

Petitioner’s contention that his harsh treatment of young prosecutors was simply a consequence of his efforts to educate them to be more just is similarly unavailing. As the Commission noted: “[t] caching need not involve angry screaming and humiliating invective and is not effective when the lesson is that a judge may abandon the law and abuse judicial authority.”

Of significant concern as well — and particularly relevant to the question of appropriate sanction — is petitioner’s refusal, throughout the Commission’s initial investigation and the proceeding before the Referee, to acknowledge the impropriety of his behavior in wrongfully dismissing cases (see, Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279, 283; Matter of Sims, 61 NY2d 349, 356; Matter of Shilling, 51 NY2d 397). As petitioner made clear in his testimony, he believes dispositions made in contravention of CPL requirements are permissible if they serve his definition of justice or conserve court resources by removing unworthy cases from an overburdened calendar. Testifying before the Referee, petitioner explained: “I think about what cases should be in this system and which cases shouldn’t be in the system, and I think judges get to make that decision, and * * * if somebody comes and brings it to your attention and complains or asks you to do something, you can do something about it.”

When petitioner was questioned before the Commission and the Referee about his handling of a number of cases, he was reluctant to acknowledge that the CPL required him to allow prosecutors to amend facially insufficient accusatory instruments. Even more troubling, however, are the numerous instances when petitioner testified that he had not abided by the CPL’s amendment and notice requirements in disposing of a case, but still maintained that he had not been wrong in doing so. For example, petitioner explained before the Referee that although he “may have been wrong in reaching the decision [to dismiss in People v Shaw],” he believed that he “still did the right thing.” Similarly, when petitioner was questioned during the hearing about People v Zhao — a case which he later acknowledged he “shduld not have dismissed” — petitioner refused to admit that he had not acted in accordance with the law in disposing of the matter. Instead, petitioner insisted that his “legal ruling was correct.” In People v Samuels, although he admitted to dismissing the charges “for the wrong reason,” petitioner again refused to acknowledge before the Referee that he had not handled the matter in accordance with the law.⁵

Additionally, with regard to several instances of clearly intemperate behavior, petitioner refused to admit that his comments were inappropriate. For example, petitioner testified during the hearing that he does not consider his asking a prosecutor whether he got his law license “on the back of an orange juice carton” to have been insulting. Moreover, despite considerable evidence to the contrary, petitioner maintained that his courtroom “was always run with courtesy.”

In making the difficult choice between censure — returning petitioner to the Bench — and removal, we find these examples particularly pertinent when combined with the numerous instances when Bureau Chiefs or Chief Assistant District Attorneys of Bronx and Kings Counties spoke with petitioner about his loss of temper and demeaning treatment of prosecutors who appeared before him. Petitioner sometimes acknowledged the inappropriateness of what he had done and said he would try to calm down, yet the misconduct continued. This evidence — not mentioned by the Commission’s dissenters — suggests that the confirmed findings of improper conduct are not isolated, acontextual, subjective instances, and it supports the inference that petitioner lacks the insight and self-control to make fundamental changes in his attitude or judicial temperament.⁶

The foregoing leads us to conclude that the Commission has not, as in LaBelle, overstated the seriousness of petitioner’s wrongdoing. Rather, the substantial record of petitioner’s intentional disregard of the requirements of the law in order to achieve a personal sense of justice in particular cases before him, coupled with the substantial record of improper courtroom conduct and unresponsiveness to concerns flagged for him, persuade us that removal is the appropriate sanction.

Finally, we note several weighty concerns voiced by petitioner, by the dissenters and by amici relating to the origin of the Commission’s investigation. The investigation was triggered not by appeals or complaints of wronged litigants or lawyers, but by a firestorm of public criticism generated by a separate tragedy, as to which, in the end, petitioner’s rulings were found to be a proper exercise of judicial discretion, not a basis for discipline. As petitioner points out, but for that tragedy — as to which he has been fully exonerated — likely no charges would have been lodged against him. There is, moreover, the deeply troubling suggestion — not established on this record — that prosecutors kept a “dossier” on petitioner, microscopically tracking him.

These concerns, which we share, center on a threat to the independence of the judiciary, a cornerstone of our democracy, posed by unwarranted criticism or the targeting of Judges. Judges must remain free to render unpopular decisions that they believe are required by law. Valid and vital though these concerns surely are, the difficult issue that confronts us in this matter is how to sanction the serious misconduct — now fully documented before us — that the firestorm has exposed. Plainly, wrongdoing in connection with initiating an investigation could not insulate an unfit Judge; any such wrongdoing must be otherwise redressed. We are satisfied that in this particular case removal, rather than censure, does not imperil the independence of the judiciary. Indeed, on the merits of this case, the judiciary, the Bar, and the public are better served when an established course of misconduct is appropriately redressed and an unfit incumbent is removed from the Bench.⁷

Accordingly, the determined sanction of removal should be accepted, without costs.

1 . While petitioner attacks the Referee’s Report as insufficient because it does not make explicit credibility findings, we note that the facts supporting the determination were largely established by documentary evidence, such as court transcripts of proceedings (which required no credibility determination) and petitioner’s own testimony.

2 . Defendant had slurred speech, red eyes and a blood alcohol content of .08%. Petitioner admitted before the Referee that he knew that a .07% blood alcohol content constitutes prima facie evidence of driving while impaired (see, Vehicle and Traffic Law § 1195), but maintained that “it’s not illegal to drink and drive.” Explaining further, petitioner testified that there needs to be a “reasonable relationship between the drinking and the driving to show that the alcohol * * * somehow affected the individual’s ability to operate the motor vehicle. * * * Absent some proof that the drinking affected the driving you can’t get a conviction.” Petitioner therefore dismissed the case.

3 . The former Chief of the Bronx Criminal Courts Bureau, Chief Assistant District Attorney in the Bronx, First Deputy Bureau Chief of the Criminal Courts Bureau in the Bronx and Bureau Chief of the Criminal Court in Brooklyn all testified that, based on complaints by others and, in some cases, direct observation, they repeatedly spoke with petitioner about the need to moderate his courtroom behavior. Petitioner acknowledges conversations with them, and admits to knowing that prosecutors from time to time ordered transcripts after his outbursts. Petitioner denies, however, having prior notice of the alleged wrongdoing. If in fact none of these indicators was sufficiently pointed to reach petitioner, that would underscore the problem that typified his misconduct.

4 . While these comments may not be indicative of a racist or sexist bias harbored by petitioner, they are highly inappropriate and completely antithetical to the role of a Judge. Indeed, even isolated instances of such inappropriate behavior cast doubt on a Judge’s ability to be impartial and fair-minded.

5 . Samuels provides another example of petitioner’s contradictory positions when testifying about his misconduct during the proceedings leading up to this appeal. When questioned about Samuels during the Commission’s initial investigation, petitioner defended his actions in dismissing the case and was reluctant to admit that his intemperate treatment of prosecutors in that matter was inappropriate. During the hearing before the Referee, petitioner testified that his conduct was “a terrible example of [his] judicial demeanor and behavior” and that he was “embarrassed that [he] was the judge that sat on [the] case.” Petitioner also testified that he “dismissed the charges for the wrong reason” and “didn’t handle [the case] properly.” In his Post-Hearing Memorandum, which was submitted to the Referee, petitioner stated that he had “properly dismissed the complaint” and had acted “within the proper ambit of his powers and duties.” In his brief to this Court, petitioner referred to Samuels as “an example of a dismissal, with its attendant conduct, which [petitioner] agrees was terribly mishandled by him.”

6 . Plainly the objective here is not to require contrition, bended knee or forfeiture of spine in return for the privilege of continued service as a member of the judiciary (see, Bellacosa, J., dissenting opn, at 169), but rather to attempt to assess petitioner’s fitness based on his prior conduct.

7 . This matter does not involve “second-guessing” the adjudicative work of Judges, nor does it open a new avenue for Commission intrusion into that work (see, Bellacosa, J., dissenting opn, at 164, 168). Matter of Greenfield (76 NY2d 293) involved a different issue — the time limits within which Judges should dispose of pending matters, an issue properly left in the first instance for the Judges themselves and secondarily for court administrators. Here the issue is not whether petitioner’s decisions were right or wrong on the merits, but rather repeated, knowing disregard of the law to reach a result and courtroom conduct proscribed by the rules governing judicial behavior.