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Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. However, preambles are not controlling of a statute or rule's terms but are simply a useful aid for interpreting them when there is ambiguity cf.
Moreover, our holding is not inconsistent with the preamble because the Rules themselves do not subject judges to criminal sanctions. Here, a breach of the Rules supplies proof that an official duty has been violated. It is the "receiving reward" aspect of defendant's conduct that gives rise to the criminal prosecution, not just the existence or violation of the Rules.
The mandatory nature of the Rules and their constitutional source ameliorate the concerns we expressed in La Carrubba. The Rules provide a fundamental objective standard of how judges must conduct themselves. This addresses the concern that a prosecutor could use an advisory, aspirational code of ethics to help prove an element of a crime. It further diminishes any concern that a defendant would not have proper notice of the conduct prohibited, as the Rules and the Penal Law are clear as to their applicability.
A second key difference is that in La Carrubba we were concerned with "the permissibility of the enforcement of the provisions of the Code of Judicial Conduct by resort to criminal prosecution" La Carrubba, 46 NY2d at In essence, the Penal Law was being used as a vehicle to pursue claims of "ethical impropriet[ies]" which, contrary to the intent of the Legislature, effectively did nothing more than permit the prosecutor to "take charge of proceedings to enforce the Code of Judicial Conduct" La Carrubba, 46 NY2d at In the present case, the criminal prosecution rests not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules.
We thus reject defendant's argument that La Carrubba is controlling here. The People's use of the Rules of Judicial Conduct to establish the duty element before the grand jury in this case did not render the proof insufficient or the indictment defective.
Accordingly, the order of the Appellate Division should be modified by reinstating six counts charging defendant with receiving reward for official misconduct in the second degree and, as so modified, affirmed. Smith, J. The primary issue here is whether the Rules of Judicial Conduct may be used as criminal statutes to prosecute a judge. I agree with the trial court and the Appellate Division that the Rules are not criminal statutes.
Thus, the evidence before the grand jury was legally insufficient to sustain 8 of the 11 charges in the consolidated indictments Nos. The People assert that there was an ongoing improper attorney-judge relationship between Paul Siminovsky and defendant over a period of three years, including lunches, drinks, money and cigars in exchange for ex parte advice on cases pending before the judge, client referrals, and favorable treatment in the courtroom. From approximately October 1, to March 4, , defendant had ex parte conversations with attorney Siminovsky about the Avraham Levi case, a divorce case pending before him.
The conversations involved advice about how to proceed in the case, statements concerning how defendant would rule on the distribution of property between the parties, and suggestions about what questions Siminovsky should ask the witnesses. On March 4, , defendant accepted two boxes of cigars from Siminovsky for giving him advice in the Levi case. Also from January 1, through March 12, , defendant accepted lunches, beverages and cigars from Siminovsky in exchange for "assigning law guardianships, and giving ex parte advice to Siminovsky concerning cases that were pending before defendant.
In February , during the Avraham Levi divorce case, the Kings County District Attorney began a video and audio surveillance of the judge's robing room. During that surveillance, defendant and Siminovsky discussed the following: subpoenaing an expert witness, the fact that the defendant was not going to order the sale of the house, that Levi would get exclusive use of the home and that Levi would win the case, even though he did not deserve it.
In early , the District Attorney's office arrested Siminovsky who agreed to cooperate with the prosecutor. On March 4, , Siminovsky gave defendant two cigars which had been purchased by the District Attorney's office. Unbeknownst to Siminovsky, the District Attorney continued to conduct video and audio surveillance of defendant's robing room. Defendant placed the money in his pocket.
However, shortly thereafter, he called Siminovsky on his cell phone and asked him to return. After conferring with the District Attorney, Siminovsky returned to defendant's chambers. Defendant tried to return part of the money. Instead of the money, defendant asked that Siminovsky write a check for Robin Garson's defendant's wife judicial campaign which had experienced a shortfall. Defendant was arrested on March 12, Indictment No.
By indictment No. On December 15, , defendant moved to dismiss the indictments as based upon legally insufficient evidence. Defendant argued that judicial rules of conduct cannot serve as predicates for criminal charges. Accordingly, evidence presented to the grand jury that the defendant violated the Rules of the Chief Administrator is legally insufficient to establish that he violated a duty he had as a public servant within the meaning of the Penal Law.
The grand jury evidence, therefore, fails to establish an essential element of each of the counts charging the crime of receiving reward for official misconduct in the second degree.
Two were dismissed as based upon legally insufficient evidence and one was sustained as based on defendant's acceptance of a box of cigars "as compensation" for ex parte advice on the Avraham Levi divorce case pending before him.
His acceptance of the box of cigars was in violation of his duty not to accept compensation for engaging in authorized or unauthorized conduct. Supreme Court concluded, "The case will therefore proceed to trial on the top count of bribe receiving in the third degree, on one count of official misconduct, and on one count of receiving unlawful gratuities.
On April 25, , the Appellate Division, Second Department affirmed, writing: "The court properly dismissed counts one through six of indictment No. What is legislative and what [is] administrative is not always easy to define, but the difficulty is not apparent here" see Darweger v Staats, NY , []. The clearest reading of 22 NYCRR part is that it consists of rules governing judicial conduct, not criminal statutes passed by the Legislature, the only body in this state that can make conduct criminal.
The preamble of the Rules of Judicial Conduct makes clear that they were not intended to be criminal statutes: "The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The rules are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
They are not designed or intended as a basis for civil liability or criminal prosecution" emphasis supplied. There is nothing in the preamble to suggest that criminal prosecution can result from any violation of the Rules. Further, the preamble explicitly states that criminal prosecution should not result from the Rules.
Consequently, defendant was not on notice that the rules of conduct could result in criminal prosecution. Notice, of course, is an essential requirement prior to prosecution see La Carrubba, 46 NY2d at , supra. The prosecution has charged the defendant twice for the same crime. Defendant allegedly accepted the cigars for giving ex parte advice in the Levi case.
The advice and the compensation were, however, all one offense. The People cannot charge official misconduct once for the advice and a second time for the compensation because the offense was receiving compensation for giving advice. The prosecutor charged the grand jury as though the Rules of Judicial Conduct were criminal statutes. On May 20, , the prosecutor charged the grand jury on the rules that govern judicial conduct, not on the criminal law, reciting, verbatim, two provisions of the Rules of Judicial Conduct.
They were the following:. Concerning indictment No. Pursuant to CPL Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when a the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and b competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.
Legally sufficient evidence is defined under CPL The Rules of Judicial Conduct were not meant to serve as elements of criminal statutes or as criminal statutes. The Rules of Judicial Conduct are rules of ethics and not criminal statutes or predicates for criminal statutes. There has been no legislative enactment allowing for their use in criminal prosecution and the Rules have not been subjected to any standards of proof.
Further, the burden of proof for violations under the judicial rules of conduct is "preponderance of the evidence" whereas, for felonies, it is beyond a reasonable doubt see Matter of Collazo [State Commn. Conduct], 91 NY2d , [].
In Matter of Stern v Morgenthau 62 NY2d , [] , this Court determined that the grand jury's purpose and investigations would not be thwarted if the prosecutor is not allowed to have access to "confidential records of the State Commission on Judicial Conduct" which developed as part of the Commission's investigation into misconduct by two judges.
Specifically, this Court held that the grand jury and the Commission "serve quite different purposes" see id. The Court illuminated the difference with the following words: "The Grand Jury is drawn from the population at large and charged with the duty of investigating and preferring charges against those suspected of criminal conduct while the Commission is composed of members appointed for fixed terms as defined in the Constitution and charged with the duty of investigating misconduct in the judicial branch of government and imposing discipline if misconduct is found.
Thus, while the two bodies serve similar functions, they are separate and independent. One is responsible for investigating crime; the other for disciplining Judges. The difference addressed in Stern between the grand jury and the Commission on Judicial Conduct is relevant to the case at bar.
In order to prosecute defendant under the consolidated indictment, the People must show that defendant violated duties as a public servant defined in the Penal Law and separate and apart from the rules that govern judicial conduct. The indictment repeatedly makes reference to "being a public servant. The People argue that the Rules put judges on notice that if they engage in "official misconduct," they will be held accountable for their actions through criminal prosecution.
Further, failure to prosecute judges for engaging in illegitimate actions will have a negative effect on the public's confidence in the judiciary. According to appellant, defendant failed not only in his duty as a public servant but also in not complying with both the judicial rules of conduct and the criminal statutes. Defendant argues, "Simply put, that a judge has a duty to comply with the Rules does not mean that compliance with those Rules is enforceable under the Penal Law.
District Attorney Hynes told a press conference yesterday that the ruling "makes it crystal clear that this kind of conduct is not going to be acceptable," according to his spokesman. White, Mr. Garson's lawyer, said that while yesterday's decision adds a slew of felony charges for his client to defend, the factual assertions underlying those felonies would have been admissible anyway when the trial begins June White said.
The defense attorney also questioned the wisdom of the Court's ruling and the impact it may have on judicial-prosecutorial relations, particularly in the smaller communities.
Siminovsky, who was disbarred, has pleaded guilty to a misdemeanor of giving unlawful gratuities to a judge and awaits sentencing. Critiques of the Judiciary. Send a Message to Congress! When Judge Gerald P. Garson was confronted with evidence of his improper conduct with a lawyer to predetermine the outcome of cases that were brought before him, his attorney successfully argued at trial that he had merely violated the Rules of Judicial Conduct, for which there was no criminal penalty.
However, in an important precedent-setting decision, the New York State Court of Appeals overturned the lower court's judgment and held that Judge Garson could be criminally prosecuted for actions that grew from those violations. The media should be credited for bringing the judge's corrupt behavior to the attention of the public as it was a major part of the story, "Chamber of Secrets," that was hosted on the CBS program 48 Hours on February 19, by Lesley Stahl and on June 2, by Charlie Rose.
The final chapter, when completed, should put judges on notice that the public will not tolerate the corrupting practices that unconditional immunity encourages. Investigations by the media are crucial to the exposure of judicial corruption. Perverse Result At oral argument on Feb.
Hynes said. Reprinted in accordance with the "fair use" provision of Title 17 U. Top Endnotes Jury selection for Judge Garson's trial is scheduled to begin September 6, unless the case is further delayed because of illness. A compendium of articles leading to Judge Garson's indictment which also describes a complex web of corruption in Brooklyn can be found on the Web site of Citizens for Judicial Accountability.
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