Matter of Bauer , 3 N.Y.3d 158 ( 2004 )

OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the Troy City Court, seeks review of a determination of the State Commission on Judicial Conduct. With various members dissenting as to particular specifications, the Commission sustained 39 charges (containing 62 specifications) of misconduct and determined that petitioner should be removed from office (see NY Const, art VI, § 22; Judiciary Law § 44). Upon our plenary review of the record and after considering the evidence and legal arguments raised, we conclude that petitioner’s conduct warrants removal.

By formal disciplinary complaint dated October 4, 2002, the Commission served petitioner with 51 charges, alleging that he often failed to advise defendants of their right to counsel, sentenced defendants in excess of the legal maximum, repeatedly jailed defendants when they could not meet the bail that petitioner set in excessive amounts, coerced defendants into pleading guilty and twice convicted defendants without a trial or guilty plea.

After petitioner submitted a verified answer in which he denied the allegations, the Commission appointed the Honorable Richard D. Simons as Referee to hear and report findings of fact and conclusions of law. Following a hearing conducted from July 28 through August 4, 2003, the Referee sustained all or part of 49 charges.

CPL 170.10 provides that upon arraignment the court must, among other things, inform defendants that they have the right to counsel at that time and at every subsequent stage of the action (see CPL 170.10 [3]). Furthermore, if at arraignment the defendant is unrepresented, CPL 170.10 (3) obligates the court to inform the defendant of the right to an adjournment for the purpose of obtaining counsel (see CPL 170.10 [3] [a]), and of the right to communicate, free of cost, by letter or telephone, for the purpose of obtaining counsel and informing a relative or friend of the charge. In addition, the arraigning court must tell defendants that if they cannot afford an attorney the court will assign one. “[T]he court must . . . itself take such affirmative action as is necessary to effectuate [those rights].” (CPL 170.10 [4] [a].)

Based on the evidence presented, the Referee found, and the record establishes, that in many arraignments the petitioner did not inform defendants of the rights guaranteed in CPL 170.10. The Referee noted that petitioner sometimes “claimed that it was unnecessary because from their prior experiences defendants knew their rights.” Petitioner also contended that, in some cases, he delayed advising defendants of their right to appointed counsel until he was satisfied that the defendants had first sought paid counsel. Finally, petitioner apparently believed the instructions were not necessary when defendants “were not alert enough to understand the advice.” The Referee found those explanations insufficient and that petitioner’s conduct did not fulfill his obligations under the statute either on arraignment or at subsequent court appearances.

We agree. The law does not contemplate judicial assessments as to whether defendants are experienced enough to know their rights without being told, nor does it authorize judges to inform defendants selectively as to their right to assigned representation. Moreover, if a defendant is not alert enough to understand the advice, the judge should not forgo it but must make sure the defendant does understand before proceeding, even—if necessary—briefly deferring the arraignment.

CPL 510.30 sets forth the criteria for setting bail. In fixing the amount necessary to secure a defendant’s return to court, the judge must take into account the defendant’s character, reputation, habits and mental condition, employment, financial resources, family ties, length of residence in the community, prior criminal record and the apparent strength of the charges.

The Referee found, and the record confirms, that on many occasions, petitioner jailed defendants in lieu of bail, without regard for the required standards. In particular, petitioner often set shockingly high bail and, in several cases, remanded defendants to jail for several days for failure to post bail on charges for which imprisonment was not a legally permitted penalty or upon legally insufficient accusatory instruments. The Referee further concluded, and the evidence establishes, that in some instances petitioner held defendants in lieu of bail for periods beyond the maximum sentence for the offense charged or beyond the period required by speedy trial rules. Moreover, petitioner induced some defendants to plead guilty without the advice of counsel and without informing them that they were entitled to counsel—and only after petitioner had jailed them for longer than the allowable maximum sentence. Further, petitioner imposed illegally excessive sentences in four marijuana possession cases, and twice convicted defendants without pleas of guilty or findings of guilt.

The Commission determined that petitioner violated 22 NYCRR 100.1 (requiring high standards of conduct to uphold the integrity of the judiciary); 22 NYCRR 100.2 (A) (mandating judges to respect and comply with the law and to act in a manner that promotes judicial integrity); 22 NYCRR 100.3 (B) (1) (obligating judges to be faithful to the law); 22 NYCRR 100.3 (B) (4) (requiring judges to perform judicial duties without bias or prejudice against or in favor of anyone); and 22 NYCRR 100.3 (B) (6) (obligating judges to accord litigants and lawyers the right to be heard according to law). The Commission concluded that, for a period of two years, petitioner engaged in a pattern of serious misconduct by repeatedly jailing defendants in violation of their rights. The Commission explained:

“[Petitioner] ignored well-established law requiring judges to advise defendants of the right to counsel and to take affirmative action to effectuate that right. In numerous cases he set exorbitant, punitive bail for defendants charged with misdemeanors and violations, even where incarceration was not an authorized sentence. He coerced guilty pleas from incarcerated, unrepresented defendants who, if they refused to accept [petitioner’s] plea offer, faced continued incarceration because of the unreasonably high bail he had set. He imposed illegal sentences in four marijuana cases, and on two separate occasions he convicted an incarcerated defendant in the defendant’s absence by announcing that the case was ‘a plea and time served,’ although the defendants had not pled guilty. [Petitioner’s] failure to recognize the impropriety of his procedures compounds his misconduct and suggests that defendants in his court will continue to be at great risk. Viewed in its totality, [petitioner’s] conduct demonstrates a sustained pattern of indifference to the rights of defendants and establishes that his future retention in office ‘is inconsistent with the fair and proper administration of justice.’ ” (Citation omitted.)

At the Commission and before us, petitioner has consistently maintained that he has done nothing wrong. In his brief to this Court he states that he “believes that his conduct was appropriate under the circumstances,” citing the purported rationale for his conduct in each instance. Petitioner goes so far as to contend that the “findings of fact on which the Respondent Commission bases its proposed sanction are in fact findings of non-fact as they violate or contradict all the testimonial evidence which was adduced at the hearing which is set forth in the transcript of hearing and made a part of this record.” At another point, while protesting the findings, he attacks the motives of the Commission staff and even the Referee.

The charges, however, are fully , borne out by the record. The testimony reveals a pattern of abuse by which petitioner on numerous occasions not only failed to advise defendants of their rights but perverted CPL 170.10 by telling defendants that they must engage their own attorneys—concealing from them that the statute requires the court to assign counsel when warranted and to see to it that the right to counsel is protected (see People v Witenski, 15 NY2d 392 [1965]). Rather than follow the law, petitioner, in a number of instances, engaged in verbal sparring with defendants and evinced an intent to defeat, not advance, the right to assigned counsel.

Instead of recognizing these failures, petitioner asks us to “examine the credentials of the people who investigated this case, prepared this, case, made this case and preferred the charges on behalf of the Commission.” Impugning the integrity of the Commission staff and the Referee, however, does not distract us from the considerable proof against petitioner.

In 26 instances, and without regard to the statutory criteria, petitioner set bails ranging from $10,000 to $50,000 for defendants who were charged with petty crimes or violations. By jailing defendants (in lieu of bail) for offenses that rarely, if at all, carry jail sentences upon conviction, petitioner abrogated his duty and abused his position as a judge. Punishing people by setting exorbitant bail, particularly where the offense does not carry a jail sentence, demonstrates a callousness both to the law and to the rights of criminal defendants. Moreover, when coupled with a failure to advise these defendants of their right to assigned counsel, petitioner’s imposition of punitive bail all but guaranteed that defendants would be coerced into pleading guilty: it was the only way to get out of jail.

We recognize that bail is discretionary and that there may be a wide range in the amounts set by reasonable judges. In reviewing petitioner’s conduct, however, we see not an isolated instance of high or injudicious bail-setting, but a pattern of exorbitant bail so extraordinary that we must characterize it as abusive and coercive in the extreme, particularly when accompanied by petitioner’s withholding from defendants their right to assigned counsel. We disagree with the dissenters’ apparent position that excessive bail can never form the basis for removal. Even when the petitioner set a bail within his lawful discretion, he failed on several occasions to protect defendants’ right to counsel. We provide the following examples to illustrate the nature of the petitioner’s misconduct, but we note that the record reflects many more incidents of excessive bail and denial of counsel.

In one example, a teenaged defendant was charged with a violation. After the teenager spent the weekend in jail in lieu of $500 bail, he appeared before the petitioner without counsel. The petitioner made no offer of counsel to the defendant, and made no statement alerting the defendant to his right to counsel, even though an assistant public defender was in the courtroom at the time. The petitioner, without any appearance by a prosecutor or defense counsel, and without any explanation that the teenager’s release from jail was not conditioned on his pleading guilty, told the defendant “If you plead guilty, I will impose a fine of $30 and sentence you to time served. Is that understood and acceptable?” The Referee and Commission concluded, and we agree, that petitioner coerced the guilty plea by denying the defendant’s right to counsel and by abusing his authority to jail a defendant in lieu of bail.

In another case, without informing the defendant of his right to counsel or determining whether he needed appointed counsel, petitioner set bail at $25,000 for a defendant charged with riding a bicycle at night on a sidewalk and without appropriate lights. The maximum fine for the violations was $100, without the possibility of any incarceration. Nevertheless, the defendant suffered seven days in jail because he could not afford to satisfy the illegally high bail. Petitioner then secured a guilty plea from the defendant without any appearance by defense counsel.

In deciding whether to accept the Commission’s determination that petitioner be removed, we are taking into account that petitioner has received support from a number of sources asserting that he has generally behaved fairly, even admirably. Defense lawyers, including the Public Defender, supported the petitioner before the Commission. Furthermore, in a report conducted several years before the earliest specification here, the Fund for Modern Courts praised the petitioner for his fairness to defendants. Nevertheless, proof that the petitioner can behave appropriately when being monitored does not negate the abundant evidence in the record that he has engaged in grievous misconduct when unmonitored.

From our perspective, it is not surprising that petitioner’s supervising judge only rarely reviewed petitioner’s bail decisions. The right to counsel, in practical respects, remains absolutely fundamental to the protection of a defendant’s other substantive rights (see People v Felder, 47 NY2d 287, 295 [1979]). It is therefore highly unlikely that a defendant without a lawyer would have the practical knowledge necessary to secure judicial review of a bail judgment. Indeed, petitioner’s coercive conduct most likely convinced many defendants that any move to protect their rights would result in more jail time. Contrary to Judge Smith’s implicit suggestion in dissent that the test for denial of the right to counsel involves a determination of prejudice to the defendant, petitioner was not free to withhold counsel from defendants on the assumption that a lawyer would not have made a difference. We are not prepared to relieve judges of their statutory responsibilities, nor can we agree that the presence of a lawyer—particularly at critical stages of the proceedings—in fact would not have mattered. Similarly, the Public Defender’s apparent ignorance of the petitioner’s illegal bail practices is not inconsistent with the Commission’s findings, given that the record shows that the petitioner set excessive bail especially when the defendants lacked representation from the Public Defender or any other assigned counsel. The Public Defender’s praise for the petitioner in cases in which defendants were granted representation does not begin to outweigh the strong evidence that the petitioner improperly denied representation to many defendants, especially given the Public Defender’s inconsequential performance, as noted by Judge Smith in dissent, in representing defendants when petitioner did assign counsel.

In view of the multiple specifications of severe misconduct upheld by the Commission and confirmed by the record, we cannot allow petitioner to remain on the bench. Petitioner’s apparent lack of contrition is telling. In some instances contrition may be insincere, and in others no amount of it will override inexcusable conduct. Here, while petitioner’s conduct was far from uniformly foul, his utter failure to recognize and admit wrongdoing strongly suggests that, if he is allowed to continue on the bench, we may expect more of the same.

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