The People &c.,
2006 NY Int. 37
We are asked to decide whether evidence presented to a
grand jury that a judge accepted a benefit for violation of his
duty as a public servant, as defined by the Rules Governing
Judicial Conduct (22 NYCRR Part 100), is legally sufficient to
support six counts of receiving reward for official misconduct in
Defendant was a Justice of the Supreme Court of the
State of New York who at the time of these events was assigned to
a matrimonial part in Kings County. After investigation, the
People presented evidence to the grand jury that, from October
2001 through March 2003, defendant engaged in a course of conduct
where on numerous occasions he violated his duty as a public
servant for which he received benefits of cash and other
gratuities. The People presented evidence that defendant and
Paul Siminovsky, an attorney who regularly appeared before him,
developed a relationship in 2000 wherein Siminovsky would buy
defendant meals and give him gifts expecting and receiving
This relationship blossomed to
the extent that by 2003, according to the testimony before the
grand jury, Siminovsky was buying defendant lunch three to four
times a week and drinks in the evening between three and five
times a week.
In the first count under consideration here, the grand jury heard evidence that defendant conducted improper ex parte conversations about the "Levi case" with Siminovsky, for which defendant received a box of cigars as a reward. Specifically, Siminovsky represented Avraham Levi in a divorce proceeding which was pending before defendant (itself allegedly a circumvention of the random assignment system, facilitated by another Siminovsky client and defendant's court clerk). The grand jury heard that while the Levi case was before defendant, the Kings County District Attorney's Office began to monitor defendant's robing room by video and audio surveillance. Among the ex parte conversations captured was one where defendant is heard saying that Siminovsky would prevail in the Levi case even though he did not deserve it. Defendant also instructed Siminovsky to subpoena an expert witness who was unwilling to appear before the court and instructed him what questions to ask of the expert. Defendant told Siminovsky that he would not order the sale of the marital residence and that Mr. Levi would be entitled to its exclusive use.
Grand jury testimony revealed that shortly thereafter,
Siminovsky was arrested and entered into a cooperation agreement
The other five counts of receiving reward for official
misconduct in the second degree allege that defendant accepted
monies for referring clients, in his official capacity, to
Siminovsky. The first of these referrals allegedly occurred in
late 2001. Evidence before the grand jury showed that defendant
told Siminovsky that defendant's wife, Robin Garson, referred a
client to Siminovsky and that he should compensate her in
Grand jury testimony showed that defendant, for a second time, referred a friend to Siminovsky with the direction that Siminovsky "would take care of Robin." In this instance, the individual knew defendant was a judge. They were seen together at a Brooklyn Bar Association function and were personal acquaintances. After Siminovsky was retained by this client, he wrote a check to Robin Garson for either $1,000 or $1,500.
In a third instance, the People assert that defendant referred an employee of a restaurant he frequented to Siminovsky. The employee knew that defendant was a judge and he believed that the referral helped his case. He commented "[b]ecause I lived in Staten Island, what were the chances of Judge Garson getting the case?" Testimony also indicated that Siminovsky paid defendant $1,000 or $1,500 in cash for the referral by slipping it into his hand during a handshake in defendant's robing room.
In the fourth referral, as alleged by the People,
evidence before the grand jury showed that defendant informed
Siminovsky that another attorney would be calling him with a
In the fifth and sixth referrals as alleged, defendant, according to grand jury testimony, accepted a lump sum payment as a reward for two referrals. Both clients retained Siminovsky as their counsel and likewise are alleged to have known that defendant was a judge from professional and personal relationships with him. Siminovsky paid defendant $1,000 for the referrals. At the time of the payment, March 10, 2003, Siminovsky was cooperating with the District Attorney's office. On that day, while wearing a recording device but unaware of the video surveillance, Siminovsky handed defendant $1,000 in marked bills in defendant's robing room. As he handed the money to defendant, Siminovsky stated the money was for the referrals of "Aiello" and "Caputo" as well as a third person who did not retain him as counsel.
Evidence before the grand jury showed that shortly
after defendant placed the money in his pocket, Siminovsky said
"[m]ake sure it doesn't fall out of your pocket," to which
defendant replied "[i]t's not going to fall out for at least an
Two indictments were filed and later consolidated.
Penal Law § 200.25 provides that a "public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant." The first count of the indictment states:
"The defendant, on or about March 4, 2003, in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a box of cigars, from another person, namely Paul Siminovsky, for having violated his duty as a public servant."
To support the first count, the People submit that defendant violated his duty as a public servant by failing to comply with 22 NYCRR 100.3 (B)(6), which provides in part that "[a] judge shall not initiate, permit or consider ex parte communications." The People asserted that defendant violated this rule when he engaged in numerous ex parte communications with Siminovsky concerning the Levi case -- advising Siminovsky what witnesses to call, what arguments to make and how defendant intended to rule on key issues in the case. This violation of the rule in conjunction with his acceptance of a benefit -- the cigars -- is sufficient, the People contend, to satisfy the elements of Penal Law § 200.25.
The remaining five counts of Penal Law § 200.25 charge
"The defendant, on or about [five different dates], in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a sum of United States currency, from another person, namely Paul Siminovsky, for having violated his duty as a public servant."
In support of these charges, the People turn to 22 NYCRR 100.2 (C), which provides in part that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." The People contend that this section prohibits defendant, a judge, from making referrals by lending the prestige of his judicial office to advance his own interests or those of another, here, Siminovsky. The grand jury could have inferred based on the evidence presented that defendant made the referrals to help Siminovsky's practice and, in turn, to gain monetary benefits in the form of "referral fees." Thus, the People maintain that defendant lent the prestige of his judicial office to Siminovsky in order to benefit Siminovsky and himself in violation of Rule 100.2. The People argue that this dereliction of duty when coupled with the acceptance of benefits -- payments -- is sufficient to establish every element of Penal Law § 200.25 in each of the five instances.
Supreme Court granted defendant's motion to dismiss the
"Where the language of a statute is clear and
unambiguous, courts must give effect to its plain meaning"
( Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of
the Town of Huntington, , 97 NY2d 86, 91 ). In addition,
legislative history can be useful to aid in interpreting
statutory language ( see Riley v County of Broome, , 95 NY2d 455,
A "public servant" is "(a) any public officer or employee of the state or of any political subdivisions thereof or of any governmental instrumentality within the state or (b) any person exercising the functions of any such public officer or employee. The term public servant includes a person who has been elected or designated to become a public servant (Penal Law § 10.00 ).
Thus, "public servant" has been defined "broadly enough to include not only every category of government or public officer, but every employee of such officer or agency" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 200 [internal quotations omitted]). "Benefit" is also broadly defined to encompass "any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire of consent of the beneficiary" (Penal Law § 10.00 ). The plain language of Penal Law § 200.25 is consistently broad in that it embraces any variation of reward for benefit, whether one "solicits, accepts or agrees" to such reward.
In enacting Penal Law § 200.25, the Legislature has
specifically defined the terms "public servant" and "benefit" and
The Legislature's comprehensive approach finds its
roots in the legislative history. Article 200 of the Penal Law
sets forth various crimes addressing bribery and bribe receiving,
all of which involve a benefit or reward for a future act by a
public servant. Prior to the enactment of Penal Law § 200.25,
there was a void in the law that allowed for prosecution of
bribery-like offenses where a benefit was given in contemplation
of an act in the future ( see Penal Law §§ 200.00 and 200.10), but
did not allow for prosecution when an improper act occurred and a
benefit was later bestowed upon the public official for that act.
Defendant urges us to interpret the statute to create a new void -- the immunization of judges from criminal prosecution when they receive an illicit benefit after violating a Rule Governing Judicial Conduct. Specifically, defendant claims that the term "violated his duty" lacks express legislative definition and cannot be proved by evidence that defendant violated his duty under the Rules. This claim lacks merit.
For an indictment to survive a motion to dismiss on
sufficiency grounds, the evidence presented to the grand jury
must set forth prima facie proof of the crimes charged ( see
People v Bello, , 92 NY2d 523, 525-526 ; CPL 70.10). Here,
the evidence submitted before the grand jury satisfies this
requirement to the extent that defendant is a public servant and
that he accepted a benefit. Assuming for a moment that defendant
was in violation of his duties as a public servant, it was also
The People set forth evidence that defendant offered ex parte advice to Siminovsky, an attorney appearing in a case pending before him. The evidence further showed that the advice conveyed was substantive in nature in that defendant informed Siminovsky that his client would prevail even though the client did not deserve to win. It was reasonable for the grand jury to find that defendant violated his explicit duty not to "initiate, permit, or consider ex parte communications ... concerning a pending proceeding" (22 NYCRR 100.3 ).
The same is true as to defendant's referral of cases to
Siminovsky. The evidence presented to the grand jury supports an
inference that defendant, in referring potential clients to
Siminovsky, was lending the prestige of his judicial office for
the sake of advancing private interests -- both his own and
Siminovsky's. The grand jury could rationally have found that
defendant meant for the clients to be influenced by his judicial
position when they selected the lawyer he recommended, and also
that defendant expected to be compensated by Siminovsky for the
referrals. We do not imply that a judge, acting in a purely
We are further governed by the principle that "we must interpret a statute so as to avoid an 'unreasonable or absurd' application of the law" ( People v Santi, 3 NY3d 234, 244 2004] quoting Williams v Williams, , 23 NY2d 592, 599 ; see also People v Kramer, , 92 NY2d 529, 539-540  [a court may consider whether one reading of the statute "might produce absurd and fundamentally unfair results"]; NY State Assn. of Criminal Defense Lawyers v Kaye, , 96 NY2d 512, 519  ["courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives"]). "The law binds all men equally, the Judges no less than the judged" ( Stern v Morgenthau, , 62 NY2d 331, 339 ; see also In re Mason, , 100 NY2d 56, 60  [stating "Judges must be held to a higher standard of conduct than the public at large"]).
To hold otherwise, as urged by the dissent, would lead
to the incongruous result of insulating judges from criminal
liability under Penal Law § 200.25 because they have a formal
body of rules governing their conduct while subjecting other
public servants -- whose duties are not defined in either Penal Law § 200.25 or any express code of conduct comparable to the
A comparison to prosecutions under Penal Law § 200.35 further exposes the flaw in the dissent's position. Under that statute, a judge who accepts a benefit for authorized conduct can be prosecuted for receiving unlawful gratuities. However, if the conduct was unauthorized, as it is alleged here, defendant would be immunized from prosecution under the rationale set forth by the dissent since the People relied on the Rules Governing Judicial Conduct to establish the violations. We see no justification for such a perverse result -- not in the plain language of the statute, not in the legislative history, and not in our precedents.
Thus we conclude that the People may rely on the Rules Governing Judicial Conduct to prove the element of a judge's "duty as a public servant" within the meaning of Penal Law § 200.25. The Rules are a compendium of regulations that insures the integrity of the judiciary and the resultant confidence and impartiality that must repose in the justice system. Any other construction runs afoul of these goals. We hold the evidence presented to the grand jury is legally sufficient, in accordance with CPL 70.10, and supports every element of counts one through six of the indictment charging defendant with violating his duties as a public servant and then accepting benefits in exchange for those violations.
In support of his position that the Rules cannot supply that necessary element, defendant, like the dissent, views our holding in People v La Carrubba (46 2 658 ) as a bar to prosecuting judges who violate an explicit code of conduct. In La Carrubba, a judge was charged with official misconduct under Penal Law § 195.00 (2) for improperly dismissing, for failure to prosecute, a Simplified Traffic Information issued to a personal friend. In that prosecution, the People relied on Canons 2 and 3 of the Code of Judicial Conduct in support of the charges.
Unlike the Rules Governing Judicial Conduct in effect
today that have been promulgated pursuant to the State
Here, there are two significant distinctions from La
Carrubba. First, the Rules Governing Judicial Conduct do not
present the same notice and enforcement concerns that we faced
with the Code of Judicial Conduct in La Carrubba. Whereas the
Code encouraged judges to act with utmost ethical forethought --
it was framed in suggestive terms and applicable only as adopted
by the Appellate Divisions -- the Rules Governing Judicial
Conduct are rooted in a constitutional amendment of article VI,
After this constitutional amendment was adopted, the
Legislature enacted Judiciary Law § 212 (2) (b), which directs
the Chief Administrator of the Courts to "[p]romulgate rules of
conduct for judges and justices of the unified court system with
the approval of the court of appeals, in accordance with the
provisions of section twenty of article six of the constitution."
Pursuant to the Constitution and the statute, the Chief
Administrator of the Courts promulgated the Rules Governing
Judicial Conduct which were then approved by the Court of
Appeals. These rules, including 22 NYCRR 100.2 and 100.3,
affirmatively state that a judge "shall" comply with the rules of
conduct and set out a basic standard of compliance ( see also 22
NYCRR § 100 Preamble ["The text of the rules is intended to
govern conduct of judges ... and to be binding upon them ... The
rules are intended  to state basic standards which should
govern their conduct and to provide guidance to assist them in
establishing and maintaining high standards of judicial and
The dissent relies on the preamble of the Rules which
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 662). There, the District Attorney was prosecuting the judge for refraining from performing duties inherent to the nature of her office -- the duties to avoid the appearance of impropriety and to act impartially. 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 664).
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.
Thus, a public servant who violates a tangible duty and further
"solicits, accepts or agrees to accept" a benefit for the breach,
is subject to prosecution under Penal Law § 200.25.
judge as a public servant violated ethical duties alone --
without accepting a benefit for the violation -- and had the
action not otherwise been prohibited by the Penal Law, the public
We thus reject defendant's argument that La Carrubba is controlling here. The People's use of the Rules Governing Judicial Conduct to establish the duty element before the grand jury in this case did not render the proof insufficient or the indictment defective.
The People's remaining claim as it relates to the dismissal of the charge of official misconduct in violation of Penal Law § 195.00 (2) is meritless.
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.
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 eight of the eleven charges in the consolidated indictments (3515/03 and 5332/03).
The People assert that there was an ongoing improper attorney-judge relationship between 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, 2002 to March 4, 2003,
defendant had ex parte conversations with attorney Paul
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
On March 4, 2003, defendant accepted two boxes of
cigars from Siminovsky for giving him advice in the Levi case.
According to the People, defendant violated Judiciary Law § 18
when he accepted the cigars. The People claim that the defendant
also accepted money for referring clients to Siminovsky on five
separate dates, including October 9, 2001; October 31, 2001;
September 5, 2002; November 15, 2002 and March 10, 2003. Client
Also from January 1, 2002 through March 12, 2003, 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, 2003, 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 2003, the district attorney's office arrested
Siminovsky who agreed to cooperate with the prosecutor. On March
4, 2003, Siminovsky gave defendant two cigars which had been
On March 10, 2003, Siminovsky, wearing a recording
device, handed defendant ten $100 bills which had been given to
him by the Kings County District Attorney. Defendant placed the
money in his pocket. However, shortly thereafter, he called
Siminovsky on his cellphone and asked him to return. After
conferring with the district attorney, Siminovsky returned to
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. In the end, defendant kept the $1000, and Siminovsky agreed to write a check. Defendant was arrested on March 12, 2003. At the time of arrest, defendant had the $1000 in his pockets.
Indictment number 3515/03 charged defendant with one
count of receiving reward for official misconduct in the second
degree (Penal Law § 200.25)
for accepting a box of cigars, five
counts of receiving award for official misconduct (Penal Law §
200.25) for referral fees, one count of official misconduct
Indictment number 5332/03 charged defendant with one count of bribe receiving in the third degree (Penal Law § 200.10) for agreeing to provide favorable treatment to Siminovsky. For accepting the cigars concerning the advice on the Levi case, defendant was charged with two counts of official misconduct (Penal Law § 195.00,). By indictment number 5332/03, defendant was also charged with a third count of official misconduct (P.L. § 195.00, which superseded the count of official misconduct in indictment number 3515/03.
On September 9, 2003, Supreme Court, Kings County
On December 15, 2003, 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. Also, defendant argued that receiving the box of cigars was not compensation within Judiciary Law § 18.
On April 29, 2004, Supreme Court, Kings County, dismissed five counts of official misconduct (Penal Law § 200.25) in the second degree finding:
in any prosecution for receiving reward for official misconduct, the evidence must identify a duty the defendant has as a public servant, and must establish that he or she violated that duty and thereafter solicited, accepted or agreed to accept a benefit for having done so. . . .
In sum, although the Chief Administrator of the Courts has properly promulgated enforceable ethical standards, I hold that he has not discharged, nor has he attempted to discharge, the legislative responsibility of defining elements of crimes. 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.
In reference to official misconduct (P.L. § 195.00), there were three charges. 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.
On the charge of receiving unlawful gratuities, the motion court wrote:
A review of the testimony and exhibits presented to the grand jury reveals that the evidence was legally sufficient to support the count charging the defendant with the class A misdemeanor of receiving unlawful gratuities in that he allegedly accepted benefits from an attorney for having engaged in official conduct as a judge which he was authorized to perform, and for which he was not entitled to any special or additional compensation (Penal Law § 148;
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, 2005, the Appellate Division, Second Department affirmed, writing:
The court properly dismissed counts one through six of indictment No. 3515/03, charging the defendant with receiving reward for official misconduct in the second degree. An indictment in
which the defendant's duty as a public servant, an essential element of the crime of receiving reward for official misconduct (Penal Law § 200.25) is defined solely by reference to the Rules of Judicial Conduct, specifically 22 NYCRR 100.2(C) and 100.3(B)(6), is insufficient ( see People v La Carrubba, , 46 NY2d 658, 665 ).
The court also properly dismissed count three of the indictment No. 5332/03 charging the defendant with official misconduct (Penal Law § 195.00) as multiplicitous, since there is no fact to be proven under that count that is not also required to be proven under count two of the same indictment (citations omitted).
On June 25, 2005, the Court of Appeals granted leave to appeal to the People. The People seek to reinstate six counts of receiving reward for official misconduct (Penal Law § 200.25) and one count of official misconduct as defined by Penal Law § 195.00.
The New York State Constitution, the Rules of Judicial Conduct and the Penal Law do not authorize a prosecutor to charge a judge with crimes by alleging violations of the Rules of Judicial Conduct. Constitution and Preamble to Rules of Judicial Conduct
Article III, Section 1 of the New York State
Constitution states, The legislative power of this state shall
be vested in the senate and assembly.
The legislative power cannot be passed on to others. What is legislative and what [is] administrative is not always easy to define, but the difficulty is not apparent here ( see Darweger v Staats, 267 NY 290, 305 ). Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses ( see id. at 306). The clearest reading of 22 NYCRR Part 100 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 make 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.
The rules are designed to provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies. They are not designed or intended as a basis for civil or criminal prosecution (emphasis supplied).
The sections of the Rules on Judicial Conduct used in
the criminal prosecution of this defendant are 22 NYCRR 100.2(c)
and 100.3 (B)(6). There is nothing in the preamble to suggest
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. Thus, only one count of official misconduct is warranted based upon Judiciary Law § 18 where the judge did receive compensation for giving his advice in an action pending before him. Grand Jury Charges and Legally Sufficient Evidence
The prosecutor charged the grand jury as though the Rules of Judicial Conduct were criminal statutes. On May 20, 2003, 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:
22 NYCRR 100.2 is headed:
"A Judge should avoid impropriety and the appearance of impropriety in all of the judge's actions.
"A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.
22 NYCRR 100.3, which is headed:
"A Judge Shall Perform the Duties of Judicial
Office Impartially and Diligently
Subsection B( 6):
"A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex-parte
communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except:
"Ex-parte communications that are made for scheduling or administrative purposes that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex-parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex-parte communication and allows an opportunity to respond.
A judge, with consent of the parties, may confer separately with the parties and their lawyers on agreed upon matters.
Concerning indictment number 3515/03, the prosecutor
instructed the grand jury that they could indict the defendant
Pursuant to CPL § 190.65, a grand jury indictment is authorized as follows:
"1. 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 § 70.10(1) as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof . . . ." Three crimes alleged in Indictment number 5332/2003 are authorized because they charge violations of the Penal Law. The Rules on Judicial Conduct were not meant to serve as elements of criminal statutes or as criminal statutes. The charges given to the grand jury by the prosecutor indicate that the People are alleging both violations of the Penal Law and violations of the Rules of Judicial Conduct in prosecuting defendant.
The Rules of Judicial Conduct are rules of ethics and
In Stern v Morgenthau (, 62 NY2d 331, 333-334 1984]), 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
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 asserts that there are no cases which hold that a judge can be criminally liable for failure to comply with the judicial rules of conduct. 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.
There appear to be no statutes and no cases that hold
that a judge can be held criminally liable for failure to comply
with the Rules of Judicial Conduct. There is no question that
the prosecutor has amassed a great deal of damning evidence
One count of bribery third degree (Penal Law 200.10)
for "accepting benefits from Simonovsky upon an agreement or
understanding that defendant would provide Siminovsky with
favorable treatment" is legally sufficient. Second, defendant
allegedly accepted a box of cigars and two loose cigars for
providing advice on the Levi divorce case which was pending
before him. As a result of these actions, the charge that the
judge violated Penal Law § 195.00 by accepting compensation for
giving advice is appropriate ( see La Carrubba, , 46 NY2d 658, 664,
Relying on People v La Carrubba (46 2 658, 664-665
), both the Supreme Court and the Appellate Division found
that the code cannot be used in such a manner. In La Carrubba,
We find nothing in section 195.00 of the Penal Law which suggests that by the device of incorporation by reference a prosecutor may initiate and take charge of proceedings to enforce the Code of Judicial Conduct as such. To accept the proposition advanced by [appellant] District Attorney would be to countenance the institution of criminal proceedings for any alleged violation of the provisions of the code.
We perceive no intention on the part of the
Legislature to cloak the District Attorney
with responsibility for compelling conformity
with the Code of Judicial Conduct. (46 2
In La Carrubba, the issue was enforcement of Penal Law § 195.00 for official misconduct by a judge. This court
determined that judges can be prosecuted for criminal acts but
not on the basis of the judicial rules of conduct which were
never meant to serve as part of the penal code ( see , 46 NY2d 658,
Finally, the majority refers to language in La Carrubba that "the Code of Judicial Conduct that existed in 1974" was "merely 'a compilation of ethical objectives and exhortations' which were 'couched in subjunctive mood,'" adopted by the American Bar Association, then the New York State Bar Association and then "incorporated by reference in the respective rules of the Appellate Divisions." Thus, the Code consisted of rules adopted by the Appellate Divisions. Here, the Rules of Judicial Conduct were promulgated by the Chief Administrator of the Courts and designed to "provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies." The Legislature thus directed the Chief Administrator of the Courts to adopt rules of conduct, not criminal statutes. New York State Constitution, Article VI, § 20(b) and Judiciary Law § 212(2)(b)
The overriding principle that governs in this instance
is whether it was the legislative intent to make criminal
judicial conduct based upon the Rules of Judicial Conduct. The
principle in effect in this case, as has been true in other
cases, is that legislative intent is the great and controlling
New York Constitution article 6 § 20(b) states in part,
Judges and justices of the courts specified in this subdivision
shall also be subject to such rules of conduct as may be
promulgated by the chief administrator of the courts with the
approval of the court of appeals. No evidence is submitted that
indicates any Judge of this Court intended the Rules of Judicial
Conduct to be a portion of any criminal statute without specific
language from the Legislature designating such conduct a crime.
Judiciary Law § 212(2)(b) states that the chief administrator of
the courts shall [p]romulgate rules of conduct for judges and
justices of the unified court system with the approval of the
court of appeals, in accordance with the provisions of section
twenty of article six of the constitution. Again, no evidence
is submitted that any Judge of this Court determined that a vote
for the Rules on Judicial Conduct was a vote for a criminal
statute or part of a criminal statute. Moreover, no evidence is
submitted that the Legislature intended that by referring to the
constitutional provision permitting the chief administrator of
the courts to promulgate rules of judicial conduct, it was also
making such rules, which were to be promulgated in the future,
Defendant was not on notice that violations of the Rules on Judicial Conduct would result in violations of the criminal statute. Therefore, it would be a violation of defendant's due process rights if appellant's arguments were accepted and the prosecution proceeded, with proof of crimes based on rules of judicial conduct.
A statute is unconstitutionally vague when it does not
give fair notice to those to whom (it) is directed that their
behaviors may subject them to criminal prosecution ( see American
Communications Assn. v Douds, 339 US 382, 412 ; People v
Stuart, , 100 NY2d 412, 418 ).
In People v Stuart, this
Court laid out a two part test for determining whether a statute
is void for vagueness. First, a court must determine whether
the statute in question is 'sufficiently definite' 'to give a
person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute' ( see , 100 NY2d 412, 420,
The Rules of Judicial Conduct state specifically, They are not designed or intended as a basis for civil liability or criminal prosecution. The stated purpose of the rules alone renders specific rules vague if used for criminal prosecution. There is nothing in the Rules themselves that remotely suggests criminal prosecution. In fact, the duties at issue are related to rules of conduct for the profession rather than criminal standards of official misconduct. Certainly, defendant was on notice that his conduct would violate sections of the Penal Law. He was also on notice that his conduct violated the Rules of Judicial Conduct which could lead to charges by the Commission on Judicial Conduct.
The words of the motion court that who dismissed the charges on appeal here are entirely relevant:
The Majority Decision
"Section 20 of Article VI of New York's Constitution provides that 'Judges * * * shall * * * be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.' Much like the Code of Judicial Conduct which it parallels, the 'Judicial Conduct' section of the Rules of the Chief Administrator of the Courts (Part 100) is, in large measure, a compilation of ethical standards, goals, and aspirations that are stated in broad and general terms. Thus, for example, the Rules provide that '[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 § 100.1), and that '[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' (22 NYCRR § 100.2[A]), and that '[a] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control'(22 NYCRR § 100.3[B]).
The notion that Rules like these can define an element of a crime is untenable * * * .
In light of both their language and their application, the two Rules at issue here are problematic when employed to define an element of a crime. And, significantly, they were never meant to be used for that purpose.
First, the majority asserts that the preamble of the Rules of Judicial Conduct which state, They are not designed or intended as a basis for civil liability or criminal prosecution, are not controlling and cites McKinney's Statutes § 122 in support of its position. Section 122 does not support the majority and states:
The preamble or preliminary recitals of a statute are no part of the statute and do not control or affect its terms, although they may be considered as an aid to interpretation when the body of the act is not free from ambiguity.
* * * *
" However, a preamble frequently contains recitals which illuminate the purpose and intent of the enactment. In fact, it is said to be the key which opens the mind of the lawmakers as to the mischiefs which are intended to be remedied by the statute, and it may sometimes be considered in determining legislative intent. Accordingly, the language of a preliminary recital may be considered as an aid to interpretation when the body of the act is not free from ambiguity, and a legislative declaration concerning public conditions is entitled to great respect though it is not conclusive.
The underlined portion indicates that a preamble may indicate the intent of the Legislature. While we are not dealing with a statute here, even if § 122 applies, it supports the fact that the Rules of Judicial Conduct are not criminal statutes. It does so by its explicit words.
The majority indicates that since the language of the rules
is mandatory rather than precatory, a person of reasonable
intelligence is on notice of possible criminal prosecution. There is
not a single case that supports the majority's assertion that
defendant was on notice that the Rules of Judicial Conduct would serve
as the basis for a criminal prosecution. As a result, whether the
word shall or may is used does not suffice for purposes of notice
in relation to criminal prosecution ( People v Stuart,
Second, a criminal prosecutor becomes the judge of when and
how a rule of judicial conduct becomes criminal. The majority does
Third, the Commission on Judicial Conduct which is given constitutional authority in article VI, § 22 of the New York State Constitution to investigate and determine whether judicial conduct violates the Rules is now placed in a secondary position. Section 22 states in part:
Does the Commission on Judicial Conduct now wait to see if there is going to be a criminal prosecution before it acts? Conclusion
There shall be a commission on judicial conduct. The commission on judicial conduct shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law; and, in accordance with subdivision d of this section, may determine that a judge or justice be admonished, censured or removed from office for failure to perform his duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the
administration of justice, or that a judge or justice be retired for mental or physical disability preventing the proper performance of his judicial duties.
It is simply incorrect that judges are immune from the criminal law if the Rules of Judicial Conduct do not authorize a criminal action. This defendant, without reference to the Rules of Judicial Conduct, is being prosecuted for bribery in the third degree (Penal Law § 200.10), official misconduct (Penal Law § 195.00 and receiving unlawful gratuities (Penal Law § 200.35).
For the foregoing reasons, I dissent in part and would affirm the dismissal of six counts of receiving unlawful gratuities and one count of official misconduct.
1 Defendant's wife, Civil Court Judge Robin Garson, was in private practice at the time.
2 Siminovsky did not recall whether he gave the check to defendant or to Robin Garson.
3 On May 21, 2003, defendant was charged in Indictment No. 3513/03 with six counts of receiving reward for official misconduct in the second degree (class E felonies), one count each of official misconduct and one count of receiving unlawful gratuities (class A misdemeanors). On August 5, 2003, defendant was charged in Indictment No. 5332/03 with bribe receiving in the third degree (a class D felony) and three counts of official misconduct (one which superseded the official misconduct count of the earlier indictment).
Supreme Court concluded there was legally sufficient evidence to support the charges of receiving unlawful gratuities (Penal Law § 200.35), bribe receiving in the third degree (Penal Law § 200.10) and one count of official misconduct (Penal Law § 195.00 ). A trial on those counts is pending.
4 Counts two through six of Indictment No. 3513/03 allege the dates on which defendant allegedly accepted a fee: October 9, 2001, October 31, 2001, September 5, 2002, November 15, 2002, and March 10, 2003.
"A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation."
6 Article VI, § 20 of the State Constitution was amended in 1977 and was not applicable to defendant in La Carrubba.
7 To the extent that defendant raises a vagueness "as applied" challenge to Penal Law § 200.25, we are not persuaded. The failure to define each term in a criminal statute does not render the statute void for vagueness ( see People v Nelson, , 69 NY2d 302 ). The statute at issue, as applied to these facts, is "sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" ( People v Stuart, , 100 NY2d 412, 420 [citations omitted]).
8 See e.g. United States v Davis, 183 F3d 231, 245 (3d Cir 1999); ReSource NE of Long Island Inc. v Town of Babylon, 80 F Supp 2d 52 (EDNY 2000); and People v Blumenthal, 55 AD2d 13 (1st Dept 1976).
9 Certainly there are violations where the same conduct can form the basis of a criminal prosecution and an administrative proceeding. The burdens of proof are different, as are the penalties that may be imposed, and both can be prosecuted in tandem. Typically, the criminal prosecution goes forward first and the disciplinary proceeding is held in abeyance pending the outcome of the criminal prosecution.
10 22 NYCRR 100.3_ A judge shall perform the duties of judicial office impartially and diligently. (B) Adjudicative responsibilities. (6) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding.
11 Judiciary Law § 18, states: A judge or other Judicial officer shall not demand or receive a fee or other compensation for giving his advice in an action, claim, matter, or motion, or proceeding pending before him, or which he has reason to believe will be brought before him for decision.
Count three of Indictment 5332 charged defendant with the crime of official misconduct in violation of Penal Law § 195.00 committed on March 4, 2003 when defendant "refrained from performing a duty, pertaining to his receipt of a box of cigars from Paul Siminovsky." In responding to a demand in a bill of particulars to identify the duty that defendant refrained from performing, the People alleged, "The defendant refrained from performing the duty that was imposed upon him by Jud. L. § 18 to refuse the box of cigars as compensation for providing advice to Siminovsky about the Levi divorce case and to return such compensation."
12 22 NYCRR 100.2_ A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. (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. (B) A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. (C) A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
13 Penal Law § 200.25 Receiving reward for official misconduct in the second degree. A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.
14 Penal Law § 195.00 Official misconduct A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit: 1. He commits an act relating to his office but constituting an unauthorized exercise of official functions, knowing that such act is unauthorized.
15 Penal Law . 200.35 states, "A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation."
16 Penal Law § 200.10, a class D felony, states, A public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.