Case of Judge Garson (case involving false claims of child abuse against parent)

Case of Judge Garson (case involving false claims of child abuse against parent)

see: http://www.nycourts.gov/ctapps/decisions/mar06/28opn06.pdf
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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2 No. 28
The People,
Appellant,
v.
Gerald Garson,
Respondent.
Leonard Joblove and Seth M. Lieberman, for appellant.
Diarmuid White, for respondent.
CIPARICK, J.:
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
the second degree (Penal Law § 200.25). We hold that the
People's reliance on the Rules to support the allegation that
defendant violated his official duties was not improper. The
Rules set forth a constitutionally mandated duty upon the
judiciary and, when combined with the additional factor of
receiving a reward, a violation of that duty may serve as a basis
for prosecution under Penal Law § 200.25. We conclude that the
evidence presented to the grand jury was legally sufficient to
support the six counts of receiving reward for official
misconduct in the second degree. The additional count charging
defendant with official misconduct (Penal Law § 195.00 [2]) was
properly dismissed.
I.
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
preferential treatment in return. 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
with the District Attorney's office. On March 4, 2003, while
wearing a recording device but unaware of the video surveillance,
Siminovsky brought defendant 27 Romeo and Juliet cigars -- a box
and two singles -- at a cost of $272.28. Siminovsky brought them
to the robing room and gave defendant an individual cigar, kept
one for himself, and then placed the box in the top left drawer
of defendant's desk. Siminovsky thanked defendant for helping
him formulate a winning strategy in the Levi case. Shortly
thereafter, Siminovsky again thanked defendant for the "little
pointers" while defendant removed the box of cigars from his desk
and inspected it. Before leaving, Siminovsky stated, "[n]ow
you're just going to tell me what to write in the memo" in
reference to the closing memorandum of law required at the
conclusion of the Levi trial. Defendant responded that
Siminovsky would have to charge extra for the memo and then went
on to substantively detail what the memo should include.
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
return.1 The client is alleged to have known that defendant was
a judge and was seen visiting him in his robing room.
Subsequently, Siminovsky, while in defendant's robing room,
handed defendant $750 in cash as a referral fee for Robin Garson.
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 $1,500.2
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
referral. As a result of the call, Siminovsky once again
obtained a new client. This client knew defendant to be a judge
from having met him at a country club. Siminovsky gave defendant
$500 in cash by placing it in an envelope and putting it in
defendant's desk drawer in his robing room. Siminovsky gave a
fee to defendant but not to the attorney who facilitated the
referral.
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
hour or two. Then it is gone." Siminovsky then left the robing
room, at which point defendant took out the money, counted it,
placed some of it in his pocket and placed the rest in an
envelope in his desk drawer. Several minutes later, defendant
called Siminovsky from his cell phone and left him a message
asking him to return. Siminovsky returned 38 minutes later at
which point defendant handed him the envelope with the money and
suggested that Siminovsky make a check out to Robin Garson's
campaign committee since she was experiencing a shortfall of
$25,000. Siminovsky returned the envelope to defendant and told
him "[d]on't worry about it." Defendant took back the envelope
and reiterated that Siminovsky should write a check out to the
campaign committee. On March 12, 2003, defendant was arrested.
The grand jury heard that at the time he had in his possession
the ten marked $100 bills that Siminovsky had given him on March
10, 2003.
Two indictments were filed and later consolidated.3
As relevant to this appeal, defendant was indicted on six counts
of receiving reward for official misconduct in the second degree
in violation of Penal Law § 200.25.
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
defendant as follows:
"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."4
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
indictment to the extent of dismissing the six counts of
receiving reward for official misconduct on the ground that the
"evidence presented to the grand jury that the defendant violated
the Rules [Governing Judicial Conduct] is legally insufficient to
establish that he violated a duty he had as a public servant
within the meaning of the Penal Law." The essence of the court's
analysis was that the People could not rely on the Rules to
establish that defendant's conduct was in dereliction of his
duties as a judge. Supreme Court further dismissed two of three
counts of official misconduct (Penal Law § 195.00). The court
held that sufficient evidence existed to support one count only:
that defendant received compensation in exchange for advice under
Penal Law § 195.00 (1) in violation of Judiciary Law § 18. The
Appellate Division affirmed. A Judge of this Court granted
leave, and we now modify and reinstate the six counts charging
defendant with receiving reward for official misconduct under
Penal Law § 200.25.
II.
"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 [2001]). In addition,
legislative history can be useful to aid in interpreting
statutory language (see Riley v County of Broome, 95 NY2d 455,
463 [2000]). The receiving reward offense, defined in Penal Law
§ 200.25, is part of Penal Law article 200, which addresses
"Bribery Involving Public Servants and Related Offenses." In
enacting Penal Law article 200, the Legislature intended its
coverage to be comprehensive to help prevent and prosecute abuses
of power in government.
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 [15]).
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 [17]). 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
left for factual resolution whether a public servant has
"violated his duty." The Legislature's decision not to further
define the duty element is understandable given the hundreds of
different types of public officials and employees whose
misconduct was intended to be covered under the statute. The
duty of a Department of Motor Vehicles clerk is not the same as
that of a Health Department inspector or, for that matter, a
Judge. It would therefore have been difficult if not impossible
for the Legislature to construct a definition of "duty" that
would have encompassed all the derelictions of duty it sought to
proscribe. Instead, the Legislature has required that the People
prove the duty violated in each case. Such proof can come in the
form of live testimony from a lay witness or expert, reliance on
an internal or formal body of rules, or other indicia of a
defendant's knowledge of wrongdoing.
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.
Penal Law § 200.25, receiving reward for official misconduct, and
its counterpart Penal Law § 200.20, rewarding official
misconduct, are intended to fill that void (see Commission Staff
Notes to Penal Law § 200.25; see People v Alvino, 71 NY2d 233,
244 [1987] [explaining that reward receiving, a lesser offense of
bribe receiving, "involves accepting a reward for past official
misconduct"]). Judges fall within the broad definition of
"public servant." And even prior to the enactment of Penal Law §
200.25, prosecution of "judicial officers" had been authorized
under the bribery statutory scheme (see former Penal Law § 372).
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 [1998]; 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
reasonable for the grand jury to infer that defendant received
the benefits for having violated his judicial duties. Defendant
urges us to interpret Penal Law § 200.25's element that the
public servant be in violation of his duty, to exempt judges
because they are subject to what he deems the ethically-driven
Rules Governing Judicial Conduct. We reject his contention.
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 [B][6]).
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
private, unofficial capacity, may not refer a friend or
acquaintance to a lawyer when the judge expects no benefit for
doing so (see Advisory Committee on Judicial Ethics Opinion
Letter 93-89); but the grand jury could have concluded that that
is not what happened here.
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 [1969]; see also
People v Kramer, 92 NY2d 529, 539-540 [1998] [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 [2001] ["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 [1984]; see also In
re Mason, 100 NY2d 56, 60 [2003] [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
Rules -- to criminal liability for similar conduct. Such a
result not only effectively immunizes judges but also runs
counter to the legislative objective of deterring public servants
from, and prosecuting them for, abusing their positions (cf.
People v Jaehne, 103 NY 182, 194-195 [1886] ["The crime of
bribery ... impairs public confidence in the integrity of
official administration, a confidence most necessary to be
maintained"]).
A comparison to prosecutions under Penal Law § 200.35
further exposes the flaw in the dissent's position.5 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.
III.
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 NY2d 658 [1979]) 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
Constitution and Judiciary Law § 212 (2) (d), the Code of
Judicial Conduct that existed in 1974 was merely "a compilation
of ethical objectives and exhortations" which were "[c]ouched in
the subjunctive mood" (id. at 663). The Code was promulgated by
the American Bar Association, adopted by the New York State Bar
Association and then subsequently incorporated by reference in
the respective rules of the Appellate Divisions. Canon 2 of the
Code suggests that "A Judge Should Avoid Impropriety and the
Appearance of Impropriety in All his Activities" and Canon 3
likewise evokes the proposition that "A Judge Should Perform the
Duties of His Office Impartially and Diligently." We refused to
permit a prosecution for official misconduct under Penal Law §
195.00 (2) based upon these violations of the ethical Canons
contained within the Code of Judicial Conduct. To hold
otherwise, we said, would permit "a prosecutor [to] take charge
of proceedings to enforce the Code of Judicial Conduct" (id. at
664).
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,
section 20 (b) which states that "[j]udges and justices of the
courts ... 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" (emphasis added).6
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
personal conduct"]).
The dissent relies on the preamble of the Rules which
also states that "[t]hey are not designed or intended as a basis
for civil liability or criminal prosecution" (see dissenting op.
at 11-12). 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. McKinney's Statutes § 122).
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.7
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 § 200.25.8 Had the
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
servant would be subject only to discipline in a proceeding
brought by the Commission on Judicial Conduct. This critical
distinction alleviates many of the concerns we had in La
Carrubba, including the concern that to allow criminal
prosecution of ethical violations under Penal Law § 195.00 (2)
would create an "awkward and often unseemly" landscape where
different groups would likely "jockey for prosecutorial priority
or advantage" (id. at 665).9
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.
People v Garson
No. 28
G. B. Smith, J. (dissenting in part):
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).

FACTS
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
suggestions about what questions Siminovsky should ask the
witnesses. The People claim that these conversations violated 22
NYCRR § 100.3(B)(6).1
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 § 182
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
referrals from a judge to an attorney are alleged to be
violations of 22 NYCRR § 100.2(C).3
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
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.
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'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. 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)4 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
(Penal Law § 195.00[1] pertaining to ex parte advice to Paul
Simonovsky (Penal Law § 195.00[1])5 and one count of receiving
unlawful gratuities (Penal Law § 200.35).6
Indictment number 5332/03 charged defendant with one
count of bribe receiving in the third degree (Penal Law §
200.10)7 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[1],[2]). By indictment number
5332/03, defendant was also charged with a third count of
official misconduct (P.L. § 195.00[1], “which superseded the
count of official misconduct in indictment number 3515/03.”
On September 9, 2003, Supreme Court, Kings County
consolidated Indictment number 3515/2003 with Indictment number
5332/2003 and dismissed as superceded the count of official
misconduct charged in Indictment number 3515/2003.
Motion to Dismiss
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 § 200.35).”
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 [1979]).
“The court also properly dismissed
count three of the indictment No.
5332/03 charging the defendant with
official misconduct (Penal Law §
195.00[2]) 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[2].
DISCUSSION
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 [1935]). “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
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 663, 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. 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.”
Subsection 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.”
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
for violating the Rules of Judicial Conduct if they determined
that defendant had accepted cigars, accepted money, referred
persons to Paul Siminovsky or gave advice.
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
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, 91 NY2d 251, 253 [1998]).
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
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.” However, except for the charge referred to in footnote
2, there is no reference to what duties in the criminal statutes
defendant violated.
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
against the defendant. However, what is at issue is whether or
not Rules of Judicial Conduct (22 NYCRR part 100) can be used as
a predicate for criminal prosecution, not whether or not there is
enough evidence to prosecute the defendant.
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,
supra). Thus, one charge of official misconduct is appropriate.
Third, the evidence was legally sufficient to establish one count
of receiving unlawful gratuities in violation of Penal Law §
200.35 because defendant accepted the cigars for advice
concerning the Levi divorce case and because he accepted money
for determining the case in Levi’s favor. However, the evidence
was legally insufficient to sustain the other six charges
pursuant to Penal Law § 200.35.
People v La Carrubba
Relying on People v La Carrubba (46 NY2d 658, 664-665
[1979]), both the Supreme Court and the Appellate Division found
that the code cannot be used in such a manner. In La Carrubba,
this Court held:
“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 NY2d
658, 664-665, supra)
In La Carrubba, the issue was enforcement of Penal Law
§ 195.00[2] 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,
663, supra). In this case, judges are not put on notice that
misconduct under the Rules of Judicial Conduct could serve as a
basis for criminal prosecution (see id.) Thus, as the Supreme
Court has found, the prosecution in the case at bar is precluded
from imposing criminal penalties under Penal Law § 200.25 based
upon 22 NYCRR 100.2 and 100.3. While the Rules on Judicial
Conduct are meant to include sanctions which can include removal
from the bench, (see Matter of Sims v State Comm. on Jud.
Conduct, 61 NY2d 349, 356 [1984]; Matter of VonderHeide v State
Comm. on Jud. Conduct, 72 NY2d 658, 660-661 [1988]), there is no
indication that the Rules were meant to be used as a predicate
for criminal sanctions (see La Carrubba, 46 NY2d 658, 664-665,
supra; People v Stuart, 100 NY2d 412, 419 [2003]). As a result,
the six charges of receiving reward for official misconduct, as
outlined by the Supreme Court, were properly dismissed.
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
principle” (see Matter of Theroux v Reilly, 1 NY3d 232, 244
[2003]; Matter of Sutka v Conners, 73 NY2d 395, 403 [1989];
Staats, 267 NY 290, 306, supra). There is no evidence that the
Rules of Judicial Conduct were meant as a predicate for criminal
prosecution.
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,
crimes for which a prosecutor could indict.
Vagueness
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 [1950]; People v
Stuart, 100 NY2d 412, 418 [2003]). 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,
supra, quoting People v Nelson, 69 NY2d 302, 307 [1987]).
Second, the statute must be reviewed to determine “whether the
enactment provides officials with clear standards for
enforcement” (see Stuart, 100 NY2d at 420, supra). “As generally
stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement” (citations omitted)(see Kolender v
Lawson, 461 US 352, 357 [1983]).
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:
"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][3]).
“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.”
The Majority Decision
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, supra, [words
not sufficiently definite for purposes of criminal prosecution]).
Second, a criminal prosecutor becomes the judge of when and
how a rule of judicial conduct becomes criminal. The majority does
not define the duties that can lead to criminal prosecution as opposed
to sanctions by the Commission on Judicial Conduct. Does a judge now
risk criminal prosecution when he or she advises a relative or friend
that a particular lawyer is well suited to handle a case? Is a judge
improperly exercising his or her authority when a recommendation is
given to a law school? What if a judge recommends one school over
another? Suppose a judge is on a not-for-profit board of directors
and his or her name inadvertently appears on a notice of a fundraiser,
a matter forbidden by the Rules? Should a judge refrain from all of
these things because he or she lends the prestige of the office and
promotes the interest of the judge or another person in violation of
22 NYCRR §100.2? Which rules subject a judge to criminal prosecution
and which do not?
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:
“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.”
Does the Commission on Judicial Conduct now wait to see if there is
going to be a criminal prosecution before it acts?
Conclusion
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[2] 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.
* * * * * * * * * * * * * * * * * *
Order modified by reinstating six counts charging defendant with
receiving reward for official misconduct in the second degree and, as
so modified, affirmed. Opinion by Judge Ciparick. Chief Judge Kaye
and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur. Judge
G.B. Smith dissents in part and votes to affirm in an opinion.
Decided March 30, 2006

Notes:
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 [1]). 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.
5 Penal Law § 200.35 reads:
"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 [1987]). 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
[2003][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.

1 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.”
2 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[2]
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."
3 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.”
4 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.
5 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.
6 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."
7 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.”