In re Blackburne

OPINION OF THE COURT Per Curiam. In June 2004, petitioner was presiding over the Queens Treatment Court, a specialized court in which nonviolent felons with a history of addiction can avoid incarceration by undergoing drug treatment. During the course of their treatment regimen, defendants must appear frequently before the court for supervision and monitoring. Among the cases on petitioner’s June 10 calendar was that of defendant Derek Sterling, who was then receiving court-mandated treatment at a residential drug treatment program. — 216 — At approximately 10:00 a.m., Detective Leonard Devlin appeared at the Queens Treatment Court for the purpose of arresting defendant Sterling, whom the detective — as a result of a police investigation — believed had committed a serious robbery and assault. Upon his arrival, Devlin spoke to a court officer, Sergeant Richard Peterson, and explained that he wanted to question Sterling in connection with a robbery. As he later testified, Peterson understood from this that the detective intended to take the defendant into custody. Petitioner was not present in the courtroom during this exchange. Because Sterling’s case still needed to be called on the Treatment Court calendar, Detective Devlin went out into the hallway to await the conclusion of court proceedings. Meanwhile, Peterson went to see petitioner in her chambers, and told her that a detective had arrived to question Sterling in connection with a robbery. Petitioner appears to have mistakenly believed that such questioning would not involve taking the defendant into custody. Petitioner instructed the sergeant to notify Sterling’s attorney to appear, and to advise the detective not to question the defendant in counsel’s absence.1 Because Sterling’s assigned counsel was unavailable, court personnel arranged for another attorney, Warren Silverman, to appear in Sterling’s behalf. Silverman arrived while the court was in session, although Sterling’s case had not yet been called. Upon speaking with the detective, Silverman learned that the defendant was to be arrested, not merely questioned. Silverman reentered the courtroom and spoke with petitioner, advising her that the detective intended to arrest the defendant but declined to inform Silverman as to the nature of the charges. Responding that she was going to have Sterling taken out of the courtroom and out of the building through a side entrance, petitioner called Sergeant Peterson to the bench and directed him to take Sterling out through the back stairwell at the end of the calendar call. Inasmuch as the back area consisted of a secure hallway used by judges, jurors and court staff, and its stairwell led out to the judges’ parking lot, Sergeant Peterson was “stunned.” Concerned that he could get in trouble for either following or not following petitioner’s instruction, he — 217 — discussed the matter with another court officer and with Assistant District Attorney Sharon Scott Brooking. After inquiring of Scott Brooking whether following petitioner’s direction might constitute an obstruction of justice, the sergeant approached petitioner again, stated that he was “uneasy” about her directive, and asked her to speak to the prosecutor. At the bench, Scott Brooking advised petitioner that having the defendant taken out through the back would be inappropriate and that, as a matter of policy, defendants should be arrested at court — not at their treatment programs — since they are encouraged to feel safe at the treatment programs. Petitioner responded that she was insulted that the detective, whose actual intention was to make an arrest, had entered the courtroom under the “ruse” of merely questioning Sterling. At no time did petitioner attempt to speak directly to the detective — who remained outside the courtroom — either to confront him with her belief that he had deliberately created a false impression, or to clarify that, in fact, his intent had always been to arrest the defendant, as the sergeant to whom he had spoken had understood. Rather, she presumed from what she took to be conflicting secondhand reports by Peterson and Silverman as to the detective’s intentions that Devlin had actually provided two inconsistent accounts of his true purpose in looking for Sterling. When the defendant’s case was called, petitioner — in open court but outside the presence of the detective — stated: “Mr. Sterling, I don’t know what else is going on. That’s why I asked Mr. Silverman to be here to represent you. I understand that there is a detective on the premises who has some reason to believe that he ought to arrest you. I’m not going into that. That’s not before me at this time. It is my hope that, whatever the issue is, it’s not something that’s going to [a]ffect your ability to continue in this program. I have directed that you be escorted out of the building by Sgt. Peterson because I — and I’m putting this on the record — specifically, I resent the fact that a detective came to this court under the ruse of wanting to ask questions when, in fact, he had it in his head that he wanted to arrest you. If there is a basis for him arresting you, he will have to present that in the form of a warrant. And it may occur at your program. I’m not saying it won’t. But what I am saying to you is that if you go back to — 218 — your program and you do everything you are supposed to do at your program, if they appear with a legitimate warrant for your arrest then you follow that. I’m not trying to keep you from being arrested. I’m trying to keep you from being arrested today in my courtroom based on obvious misrepresentation on the part of the detective.” At the conclusion of the proceeding, Sergeant Peterson approached petitioner, again told her that he felt uneasy, and expressed his concern that her direction amounted to an obstruction of justice. Petitioner interrupted him and, while starting to stand up at the bench, stated that he had been given an instruction and that if he did not take Sterling out through the back exit, she would do so herself. Concluding that he, rather than petitioner, should escort the defendant so as not to compromise petitioner’s safety or the safety of other judges, Peterson replied that he would do it. He then escorted Sterling out the side doorway, through the secure hallway and stairwell, and out the door to the parking lot. When the detective learned that Sterling had left through a back exit, he hurried out the front door to try to locate him, but was unsuccessful. Sterling was arrested the following day at his drug treatment program and charged with robbery and assault. The charges against him were ultimately dismissed. After receiving complaints from various parties, the Commission on Judicial Conduct began an investigation, at the conclusion of which it served petitioner with a formal written complaint containing one charge of judicial misconduct. After a hearing, Honorable Ernst H. Rosenberger, as Referee, determined that petitioner had failed to uphold the integrity and independence of the judiciary by failing to observe high standards of conduct, in violation of section 100.1 of the Rules of Judicial Conduct (22 NYCRR); failed to avoid impropriety and the appearance of impropriety in that she failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of section 100.2 (A) of the Rules of Judicial Conduct; and failed to perform the duties of judicial office impartially and diligently in that she failed to be faithful to the law and to maintain professional competence in it, in violation of section 100.3 (B) (1) of the Rules of Judicial Con — 219 — duct.2 The Referee further concluded that petitioner’s testimony revealed “a person who, while conceding that she has done something wrong, and stating that she would now do things differently, nonetheless seeks to minimize her responsibility.” After hearing oral argument, the Commission determined that petitioner had violated each of the rules cited in the formal written complaint — including that unaddressed by the Referee — and unanimously sustained the charge of judicial misconduct. Eight Commissioners voted for removal, two for censure. Petitioner now requests review by this Court of the Commission’s determination. Discussion Conceding the impropriety of her conduct, petitioner devotes her argument to sanction, asserting that censure, not removal, is the appropriate remedy. Petitioner maintains that her actions, while improper, were motivated by a desire to protect the integrity of the Treatment Court, whose success rests on honesty and forthrightness. In this regard, petitioner testified that she believed at the time that had she permitted Detective Devlin to arrest the defendant, it would have appeared as if the court were complicit in the detective’s “ruse,” which would in turn have undermined the trust between the Treatment Court and its participants that is essential to the court’s effectiveness. The Commission found, however, that petitioner acted out of anger and annoyance at the detective, who had, she believed, insulted her. In any event, petitioner contends that a judge ought not to be removed from office for a single act of bad judgment, unless the misconduct involved venality, breach of trust, moral turpitude or personal gain. In pressing such a rule, petitioner catalogs each of our prior cases involving single acts of misconduct, noting that in one case there was venality; in another, corruption; and so forth. From this she concludes that only those fact patterns that have previously been the subject of disciplinary proceedings can justify removal. But we have never implied that removal is limited to those categories of cases that have formerly come before us. Judicial misconduct cases are, by their very — 220 — nature, sui generis. That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequence of her actions. Although petitioner maintains that removal here would be unprecedented, in Matter of Gibbons (98 NY2d 448 [2002]) we removed a judge who, after signing a search warrant authorizing the search of a company’s premises for environmental violations, notified the company’s attorney of the impending search. There, as here, the judge “jeopardized the very legal system he was duty-bound to protect and administer” (98 NY2d at 450). Under those circumstances, we determined that removal was the proper sanction despite the Referee’s finding that Judge Gibbons’s single act of misconduct may have been motivated not out of any desire to impede the lawful execution of the search warrant, but rather simply out of anger at the company’s alleged behavior.3 In any event, we reject petitioner’s argument that she should not be removed because removal would be unprecedented. Petitioner’s conduct was unprecedented. We know of no instance in which a judge has facilitated the escape of an accused violent felon. Nor can petitioner’s misconduct be properly deemed to have consisted of only a single, unconsidered act. Petitioner acted out of anger and pique that she had, she mistakenly thought, been lied to. Even assuming that her initial mistake was reasonable — although Sergeant Peterson well understood that a detective who showed up in court looking to “question” a defendant in connection with a pending charge meant to take that defendant into custody, rather than question him in the courthouse— petitioner made no effort to clarify the situation. Rather than attempting to speak directly to the detective, she jumped immediately to an erroneous conclusion based on what she took to be two different accounts, from two different people, of what the detective had indicated. Moreover, petitioner was given at least two chances to reconsider her position, having been specifically advised by both — 221 — the sergeant and the prosecutor that her direction was, to say the least, problematic. But instead of availing herself of these opportunities, petitioner worsened her misconduct by refusing to take seriously Sergeant Peterson’s concern that he would be committing an obstruction of justice if he followed her directive. Nor was Peterson the only person endangered by petitioner’s intransigence. Unconcerned that she might be putting her court officer at risk of legal jeopardy, petitioner’s rash and reckless decision to release onto the street a suspected violent felon potentially posed a danger to the public. That the defendant returned peacefully to his drug treatment program, and in the end turned out not to have committed the crime of which he was then suspected, in no way redounds to petitioner’s credit. Things might easily have turned out otherwise. In impeding the legitimate operation of law enforcement by helping a wanted robbery suspect to avoid arrest, petitioner placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court. Although “removal is not normally to be imposed for poor judgment, even extremely poor judgment” (Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349, 356 [1984]),4 petitioner’s dangerous actions exceeded all measure of acceptable judicial conduct. By interposing herself between the defendant and the detective, petitioner abandoned her role as neutral arbiter, and instead became an adversary of the police. This is completely incompatible with the proper role of an impartial judge.5 Accordingly, the determined sanction should be accepted, without costs, and petitioner removed from the office of Justice of the Supreme Court, Queens County. Footnotes [1] Police may, of course, lawfully interrogate a suspect in counsel’s absence despite the suspect’s representation on a pending, unrelated matter (see People v Bing, 76 NY2d 331 [1990]). Although a court is not required to provide an attorney under these circumstances, neither is it forbidden from doing so if in its judgment the interests of justice will be better served. [2] At the hearing before the Referee, the formal written complaint was amended to add an additional allegation — that petitioner lent the prestige of judicial office to advance the private interests of the judge or others, in violation of Rules of Judicial Conduct (22 NYCRR) § 100.2 (C). The Referee drew no conclusion of law with respect to this rule. [3] Petitioner also relies on Matter of Mills (2005 Ann Report of NY Commn on Jud Conduct 185 [Dec. 6, 2004]), where the Commission merely censured a judge who unlawfully incarcerated an acquitted, unrepresented defendant in solitary confinement for four days, during which time the judge altered his contempt order to cover up the illegal basis for the punishment. However, we need not determine whether Mills was wrongly decided, since it is enough simply to note that the Commission’s determination in Mills was never appealed to or reviewed by this Court. [4] Notably, the judge in Sims was herself removed. [5] In light of our determination, we need not decide whether the Commission’s conclusion that petitioner violated section 100.2 (C) of the Rules of Judicial Conduct was proper.