
    STATE OF NEW YORK COURT ON THE JUDICIARY
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Hubert Richter, a Judge of the City Court of Kingston, Third Judicial Department.
    Present: Honorable Arthur Markewich, Presiding Honorable Joseph A. Suozzi Honorable Milton Mollen Honorable Reid S. Moule Honorable Richard J. Cardamons
   On October 31, 1977, the following opinion of the Court on the Judiciary was handed down:

Per Curiam.

Respondent, a Judge of the City Court of Kingston, has pending against him four separate charges, divided into specifications, of judicial misconduct in violation of established standards. We have had the benefit of the Referee’s meticulous report of 68 pages, containing his findings and the reasons therefor, and have heard argument by counsel for both sides. Except where specifically stated to the contrary, we confirm the Referee’s findings as well as his procedural rulings.

Charge I

THE MALANIOS CONFRONTATION

Malanios and two codefendants had pleaded guilty to a class A misdemeanor before respondent to cover a charge of attempted escape from the Ulster County Jail. All three were second felony offenders, awaiting sentence in County Court for separate felony convictions. The reduced plea before respondent was designed to expedite swift transfer to State prison, to which it was expected they would be committed by the County Judge. Though sentence by respondent was set for the day following the felony sentence, the warden, desiring quick riddance of these troublesome guests, dispatched them instead on the very same day to respondent’s court for immediate sentence. This occurred on a Thursday which respondent, being a part-time Judge, usually devoted to his private office practice. On Thursday his judicial seat was taken as usual by a substitute Judge. The latter, unable to impose sentence for respondent, directed return of the prisoners to the county jail. The warden called respondent on the telephone, communicating his desire to get the prisoners on their way to Dannemora, and asked him to impose sentence forthwith; respondent agreed, and they were sent, handcuffed, to respondent’s law office, without notice of any kind, either to their assigned counsel or to the District Attorney.

Malanios’ codefendants were each given jail sentences of one year, to run concurrently with those imposed in County Court. Malanios was sentenced to the same term, but to be served consecutively to the felony sentence. He complained vociferously and abusively, claiming a prior agreement for the treatment accorded the others. Respondent himself testified that his reaction was to come out from behind his desk and seat himself on the edge, folding his arms, and that he said, "Court is over now, it’s Nick and Rick, and any way I can oblige you, I will be happy to do.” Malanios responded with continued profane and obscene abuse, whereupon respondent directed his removal, following him to the door "a foot or two foot away from him”, and admonished him to be quiet. Apparently the incident ended thus.

Later that day, respondent was called on the phone by Malanios’ lawyer and his error in proceeding in the absence of counsel called to his attention. He stated that it had slipped his mind and he forthwith arranged to vacate the sentence, which he followed by resentence in proper fashion, to a more lenient term.

The charge specifications will now be taken up. It is charged (specification [a]) that respondent was intemperate, injudicious and abusive and exceeded his authority by conducting the sentencing in the absence of counsel and without giving notice that it was to be held earlier than scheduled. This is literally true. It is hornbook law that, as respondent acknowledged, error was committed which would have been reviewable on appeal had it gone uncorrected. The prisoners’ testimony that they had warned respondent of the absence of counsel is not worthy of belief, and, when all the surrounding circumstances are taken into account, it is obvious that respondent’s error was one of sheer inadvertence. (See Charge II below.) In terms of prejudice to anyone, the error was harmless. No inference of willful misconduct may be drawn as to this specification, and we agree with the Referee in not sustaining this charge.

Specification (b) charges injudicious conduct in that respondent carried on the sentencing in a private law office. Again, this is literally true. City Court facilities in Kingston were not exactly commodious. Respondent’s regular courtroom, occupied that day by his substitute, was the City Council Chamber. The evidence before the Referee is that use of facilities other than a courtroom for court proceedings in rural and semirural areas of the State is not uncommon. We know of no prohibition in law thereof, as long as the facility used is open to the public and otherwise lends itself to the purpose. The court had no choice in these circumstances but to use the office for the described purpose. The community is responsible for providing court facilities, and not respondent. We agree with the Referee in not sustaining the charge.

Specification (c) charges failure to keep a proper record of the proceeding. We are not told wherein this was judicial misconduct. The evidence was to the effect that no provision is made in this type of court for a qualified court reporter to attend at sentences. It is not shown that, in this court not of record, respondent failed to keep his own written record. Again, if respondent should have had a reporter record the sentence, the community should have provided such a service, and it did not. The Referee did not sustain the charge, and we agree.

The next two specifications, (d) and (e), must be read together: they allege that respondent engaged in an angry physical confrontation with Malanios, expressing his intention and willingness to engage in a fight with him. Actually, there was no physical contact between them in the two aspects of confrontation, one at the desk, and the other at the door. The first was calm, and, had it not been followed by the scene at the door, might be deemed injudicious only in that it was silly. In words, it was a challenge, but Malanios was obviously not in a position to pick up the gauntlet. But the provocation—an explanation, not an excuse—continued, and, as respondent acknowledged, he became angry, and continued the verbal conflict. Nevertheless, respondent’s conduct was unseemly, injudicious, and intemperate, and we confirm the Referee’s report, sustaining this charge to the extent we indicate, i.e., engaging in an angry verbal exchange of words with a defendant and leaving the Bench to continue it in the immediate presence of the prisoner.

Charge III

THE SCHISKIE CONFRONTATION

This charge, in two specifications, is reminiscent of the Malanios matter. In specifications (a) and (b), respondent is charged with having been intemperate, injudicious and abusive and having acted in excess of authority by leaving the Bench, approaching a defendant, angrily demanding an apology from him, and striking him. Schiskie was on the floor in the custody of three officers. Schiskie, a longtime offender, had been arraigned before respondent on several charges involving appropriation of a truck loaded with television sets. When bail was set at $10,000, after respondent at first forgot to do so, the defendant called respondent several unprintable names. Respondent directed the officers to bring defendant closer to the Bench, whereupon, as respondent testified, defendant "violently objected, kicked, fought them, and prevented it * * * continued to scuffle and * * * was knocked to the floor.” Respondent said that "after sometime” while Schiskie was still struggling and "was in serious danger * * * of being hurt”, he "went over to Schiskie” bending "over at the waist”, and said to him "Is this what you want? Why don’t you apologize?” Continuing, he said that defendant attempted three times to spit at him, which was when he "gave him the motion with the back of the left hand”, not intending to hit him but "to show * * * contempt for him.” Respondent’s description of Schiskie’s conduct was completely corroborated by a disinterested witness, waiting for disposition of his traffic infraction. (Possibly irrelevant but interesting is the fact that the corroborating witness was later convicted and fined by respondent.) The request for apology met with another stream of Schiskie’s obscenities. When defendant fell to the floor, continued the witness, respondent left the Bench, stood over him and attempted to restore order, "trying to reason with him”, while the defendant tried to swing at him. Schiskie alone said respondent struck him; the witness waiting for odisposition of his case said that respondent did no more than block Schiskie’s swing; respondent himself indicated that whatever contact there was derived from his contemptuous gesture of dismissal. He described it at one time as that of a king dismissing a subject. Schiskie alone said that respondent kicked him. The evidence against the specification which charged striking is overwhelming, and that specification is not sustained either by the Referee or by us. However, to the extent that respondent "left the bench and * * * demanded an apology from the defendant who was on the floor in * * * custody”, we disagree with the Referee and sustain that specification. We refrain deliberately from characterizing the manner in which this was done as "angrily”, but we consider it injudicious and an impropriety for a Judge to leave the Bench in the circumstances described and to make himself a participant in the action. If the officers present were doing their duty—and apparently they were—it was not for respondent to become involved by his immediate presence at the scene. If there was risk of injury to defendant, the court could have controlled matters by directions from the Bench. Neither here, nor in the Malanios situation was it appropriate for respondent to leave the Bench and approach the defendant.

Charge II

FALSE SWEARING

It is charged that, at a preliminary hearing before the Commission on Judicial Conduct, respondent had sworn falsely in respect of several aspects of the Malanios affair. Specification (a) charges a false denial of his having approached Malanios in angry confrontation. It does not pinpoint a particular moment or precise place of occurrence of respondent’s confrontation with Malanios, and adjudication of the charge requires resolution of semantic problems. Even one accustomed to deciding intricate issues of fact almost on a daily basis finds difficulty in understanding precisely what answer was required by the questions asked before the commission as to the details of this episode. They did not precisely advert respondent as to what was sought by way of answer. Specification (b), concerning alleged threats by Malanios to respondent and his family, leads to an equally inconclusive result. There seems to be no doubt that Malanios, in venting his spleen upon the Judge who had just passed judgment upon him, used expressions which, subjectively considered, might be regarded as threats or might not be. A well-seasoned Judge would probably not have taken them seriously for a moment. In the context of both (a) and (b), requiring interpretation of language, it cannot be said that respondent’s description of what Malanios said was intentionally false, or even false at all. It must also be borne in mind that this specification rests to a great extent upon the evidence of Malanios and his codefendants, and we have commented elsewhere upon their credibility.

Specification (c) characterizes as false respondent’s statement to the commission that the defendants being sentenced were not handcuffed. There is no doubt that they were. But respondent explains that, in recollection, he thought they were not; it was his custom to have handcuffs removed when defendants were arraigned for sentence. This incident occurred, it must be considered, in circumstances which were unusual and undoubtedly confusing: unexpected production of the prisoners for sentence at an unexpected time in an unusual place for exigent reasons, and for which respondent was completely unprepared. It is understandable that recollection might be faulty against this background. It is at the very least doubtful that the statement was willfully false. A mistake in testimony does not constitute false swearing.

The last specification, (d), requires a credibility judgment to be made in its determination: whether to credit Malanios and his codefendants in their claims that respondent had been alerted by them to the absence of counsel for both sides at the arraignment for sentence. There is a direct conflict between respondent and these witnesses. To begin with, their credibility is less than good. They were contradicted by their own counsel’s testimony on an important matter, the circumstances of their plea of guilty, at which, said they, respondent had made a specific promise as to the sentence to be imposed. They had criminal records. In contrast, respondent’s reputation for veracity was attested to by character evidence, given by impressive witnesses. The picture given by the hearing record is of a forthright man. His own comment as to proceeding in counsel’s absence is typical: "I was stupid on that one.” Indeed, the greater part of the evidence against him came from his own lips. Nor does the charge stand up when measured by respondent’s own conduct when, on being called on the phone by Malanios’ lawyer and having the error called to his attention, he promptly vacated the sentence and scheduled resentence with counsel present.

As to Charge II we confirm the report of the Referee to the ‘ effect that none of its four specifications was proven by a preponderance of the credible evidence, and the charge is not sustained.

Charge IV

IMPROPER SENTENCES

It is charged that, during a period of five years, respondent failed to comply with the rules and procedures prescribed by law with respect to defendants appearing before him in that he set conditions, issued directives and imposed sentences which were improper and unauthorized by law, and that he accepted guilty pleas and thereafter improperly dismissed the charges.

Respondent’s sentencing procedures were, to say the least, unorthodox, consisting largely of what may be described as "making the punishment fit the crime”. Charge IV was broken down at the hearing into six specifications, into each of which were grouped sentences with like irregularities. All these cases involved minor matters.

The first such specification, unlike the others however, involves a single defendant, one Feltham, who was directed by the court, in addition to the conditions stated in a proper probation order, "to attend * * * a church, with instruction that it could be any church other than” a certain named church, and report to the court on the sermons, and also to do certain reading. This was not an enforceable order; indeed, after a certain time, it was no longer observed. The order was made after consultation with and consented to by the defendant’s father, and was well motivated. Although the direction to omit a certain church is subject to criticism, we agree with the Referee that this act involved no judicial impropriety.

The second group consists of six sentences, some of which imposed probation for periods of time of insufficient length under section 65.00 (subd 3, par [b]) of the Penal Law. The probation department, without avail, called respondent’s attention to the illegality. Respondent took the position that these sentences, though technically incorrect, were harmless error because he was empowered to terminate the probation at any time (CPL 410.90); he just did so in advance. He also imposed both probation and a brief jail sentence in one case, and in three others illegally sentenced to both probation and a conditional discharge, forbidden by CPL 410.10; one of these was corrected at resentence and, as to the others, it appears that the discharges became nullities in the presence of the probation. All the cases in this group constituted rough justice; all could have been appealed, but none was. Errors of law, not impropriety were here involved.

The third and fourth groups consist of 13 cases in which, having found defendants guilty, he either conditionally discharged or dismissed after the defendants had, on his order, made contributions to various charities. Though well intentioned, the direction was completely improper. A Judge is forbidden to solicit for charity; a fortiori, he may not direct contributions to charities, particularly where the recipient is specified. We, as well as the Referee, agree that the charges are sustained as to this group.

The fifth group represents another species of rough justice in which three defendants were directed to perform certain "voluntary work” for a specified period for a school, a church, and the police department, as conditions for discharge. The sixth consists of six cases in which similar work was done in return for dismissal. These directions were illegal. However, they occurred before December, 1975 when the Appellate Division, Second Department, said so in no uncertain terms. (See People v Mandell, 50 AD2d 907.) While dismissal is permissible in the interest of justice (CPL 170.40, 170.30), the reasons were insufficient, but, it seems, not knowingly so. And respondent has prestigious company in thinking the work assignments proper; indeed, there is support for the opposite view. (See Simon, Needed: A New Look at Punishments, 49 NY State Bar Journal 285.)

In the entire panoply of specifications found in Charge IV, we have sustained as judicial impropriety only that having to do with the exacting of charitable contributions. The rest are either de minimis or consist of errors of law, not properly cognizable as judicial misconduct.

CONCLUSION

We have sustained the charges against respondent Hubert Richter of injudicious, abusive and intemperate conduct in the Malanios and Schiskie affairs in that he engaged in unseemly verbal confrontations with both defendants (Charges I [d], [e]; III [a]) in the course of which he left the Bench for the immediate vicinity of each defendant, and there continued the conflict. We have also sustained the charge of judicial impropriety set out in the third and fourth specifications of Charge IV in that respondent improperly required 13 defendants to make charitable contributions as a condition for dismissal of the criminal charges against them or imposition of a sentence of conditional discharge. There is nothing in the record—indeed, it is not even suggested to us—to the effect that respondent has been guilty of either corrupt or venal conduct. Actually, we are impressed with his openness and frankness, his earnestness, energy, and good intentions. For these reasons, we do not invoke the sanction of removal from the Bench. Regarding our function to be educational as well as punitive, we turn to another possible resolution of this case.

"[T]he essence of the sanction imposed is not 'punishment’ but a reprimand based on grounds bearing rational relationship to the interest of the State in the fitness of its judicial personnel.” (Matter of Kelly, 238 So 2d 565, 569 [Fla].) "The function of this court is not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents. That purpose is accomplished in this case by this review and condemnation of respondent’s conduct”. (Matter of Waltemade, 37 NY2d [a], [111].) We are of the opinion that the charges which we have sustained indicate a pattern of conduct which, if recognized by respondent to the extent that he promptly takes appropriate corrective action, may well result in his becoming a truly valuable member of the judicial community.

To exercise the judicial function properly, a lawyer must understand that, no longer an advocate, he has become a somewhat impersonal being, objective in outlook and action, never involved personally in the ongoing drama before him. Respondent had apparently never learned this before he was elected to the Bench, so that, when he encountered a situation in the Malanios case which was beyond his ken, his response was the classic arrogance of the uninformed. He reacted instinctively, and became personally involved, with machismo taking over and good sense in full flight. This violent verbal reaction was unseemly, injudicious, and inexcusable. Further, it was a form of bullying and a misuse of his superior position as a Judge. This was compounded two days later in the Schiskie matter where, again, uninstructed instinct took over, and the earlier episode was virtually repeated without change. A Judge should not countenance that loss of dignity in his courtroom which demeans the processes of justice. Certainly he should not deal with any such episode by adding fuel to the fire by his own departure from proper conduct. "It is within a judge’s power—indeed, it is his obligation—to 'protect the sanctity and dignity of . . . courtroom proceedings . . .’ [Citation.] A judge’s criminal contempt power provides him with the judicial muscle to cope with such situations” (Gregory v Thompson, 500 F2d 59, 64).

The sentencing irregularities—even those involved in the charges we have not sustained by a preponderance of credible evidence as judicial improprieties—are part of the same pattern. We find here a Judge who apparently did not take the trouble to acquaint himself with the standards of sentencing set out in statute and case law. He rejected professional advice thereafter. The wide discretion enjoyed by a sentencing Judge is not boundless. Conditions set in a noncustodial sentence must be condign to the case, and it goes without saying that they must be legal. Respondent displayed his disdain for such limitations. His pattern was that of the traditional country squire, dispensing both largesse and a certain type of justice with equally open hands. His attitude is exemplified by the royal gesture toward Schiskie, characterized by the latter as a blow. To use the expressive and rich argot of the street, respondent, without any attempt to do it right, "played it by ear.” It is bad enough that he has been compelled to exercise the judicial function in a makeshift courtroom and without a court reporter; he should not be a makeshift Judge but one interested in the appropriate fulfillment of his duties.

If respondent puts his mind to it to learn what is to be expected of a Judge, and does so with the energy he has displayed in his rather undirected discharge of judicial duties, this valuable lesson to him will not have been lost.

Respondent should be severely censured.

APPENDIX

Charges

Section 22 of article VI of the Constitution of the State of New York empowers the Court on the Judiciary to remove a Judge of a City Court of the State of New York for cause.

Hubert Richter was elected to the City Court of the City of Kingston, Third Judicial Department, for a term commencing January 1, 1966, and has continued to hold that office to date.

Pursuant to section 22 of article VI of the Constitution of the State of New York, cause exists for the removal of Hubert Richter as a Judge of the City Court, City of Kingston, as a result of acts of misconduct which violated: the standards of judicial conduct established in the common law of the State of New York; the Code of Judicial Conduct, adopted by the New York State Bar Association, effective March 3, 1973; the Rules Governing Judicial Conduct, promulgated by the Administrative Board of the Judicial Conference of the State of New York, effective January 1, 1974; and the applicable statutes of the State of New York.

Charge I

On February 27, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority in that, in connection with the sentencing of three defendants, Nicholas Malanios, Thomas Silva and Michael Traficante, he:

(a) conducted the sentencing in the absence of the defendants’ attorneys and a representative of the District Attorney’s office and without giving them notice that the sentencing was to be held on a date earlier than scheduled;

(b) held the sentencing in a private law office;

(c) failed to keep a proper record of the proceeding;

(d) engaged in an angry, physical confrontation with Nicholas Malanios;

(e) stated and otherwise expressed his intention and willingness to engage in a fight with Nicholas Malanios; in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Charge II

On January 23, 1976, after being duly sworn as a witness, Hubert Richter, a Judge of the City Court of Kingston, falsely testified before the Temporary State Commission on Judicial Conduct, in connection with the sentencing of Nicholas Malanios, Thomas Silva and Michael Traficante on February 27, 1975, that:

(a) he did not approach Nicholas Malanios and engage in an angry, physical confrontation with him;

(b) Nicholas Malanios threatened Judge Richter’s life and the life and safety of Judge Richter’s family;

(c) the defendants were not in handcuffs while being sentenced;

(d) he was not made aware during the course of the sentencing that neither the defendants’ attorneys nor a representative of the District Attorney’s office was present, in violation of the Rules of Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.2, and the Code of Judicial Conduct, Canons 1 and 2.

Charge III

On March 1, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious and abusive and acted in excess of his lawful authority while arraigning a defendant, John Schiskie, in that he:

(a) left the Bench, approached the defendant and angrily demanded an apology from the defendant who was on the floor in the custody of three law enforcement officers;

(b) struck John Schiskie; in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Charge IV

During the years 1970 to 1975, Hubert Richter, a Judge of the City Court of Kingston, failed to comply with or faithfully apply, the rules and procedures prescribed by law with respect to defendants appearing before him, in that he:

(a) set conditions, issued directives and imposed sentences which were improper and unauthorized by law;

(b) accepted guilty pleas and thereafter improperly dismissed the charges;

in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (a) and 33.3 (a), and the Code of Judicial Conduct, Canons 1, 2A and 3A.

Cardamons, J. (concurring).

The Commission on Judicial Conduct has made four separate charges against respondent, Hubert Richter, a Judge of the City Court of Kingston.

Charge I asserts that respondent undertook to sentence one Malanios and two codefendants in his private law office without notice to either Malanios’ assigned counsel or the District Attorney. After sentence was imposed a verbal altercation occurred between respondent and Malanios. Respondent admitted that he came out from behind his desk and said to the handcuffed Malanios "Court is over now, it’s Nick and Rick, and any way I can oblige you, I will be happy to.” Later, when Malanios responded with profane language, respondent directed that Malanios be escorted from his office by the guards present. Respondent, however, followed Malanios to the door being only a foot or two from him while admonishing Malanios to be quiet. After Malanios’ lawyer called, later that same day, respondent vacated the sentence and properly resentenced Malanios.

There are five (a-e) specifications under Charge I. Specification (a) which charges respondent with willful sentencing in the absence of counsel is factually accurate, but did not, under the circumstances revealed in this extensive record, constitute willful misconduct, but merely inadvertence. Specification (b) charges respondent with sentencing in his private law office. There is no impropriety involved in the use of such an office so long as it is open to the public and otherwise properly and appropriately lends itself to the purpose. There is no merit to specification (c) with respect to keeping a written record of the proceeding since there is no proof that respondent failed to keep such a record. Specifications (d) and (e) charge that respondent engaged in an angry physical confrontation with Malanios, expressing his intention and willingness to fight with him. The record demonstrates that these two specifications should be sustained.

Charge II contains four (a-d) specifications of falsely swearing at the preliminary hearing before the Commission on Judicial Conduct with respect to various aspects of the Malanios matter. Suffice it to say the Referee found that none of these four specifications was proven by a preponderance of the credible evidence and, hence, the charge should not be sustained.

Charge III accuses respondent of leaving the Bench and approaching a violent and obstreperous defendant who was appearing before him and who was scuffling with three officers. During the struggle, the defendant fell to the floor and respondent bent over him demanding an apology. Specification (a) which charges respondent with being intemperate and injudicious should be sustained. Specification (b) which charges respondent with striking the defendant is refuted by all present, except the defendant, including a disinterested witness present in the courtroom awaiting disposition of his traffic infraction. That specification, therefore, should not be sustained.

With respect to Charge IV, I concur in the majority opinion.

For his injudicious and intemperate conduct on the two separate occasions mentioned (Charge I, specifications [d], [e]; Charge III, specification [a]) and for the exacting of improper charitable contributions from defendants appearing before him in order for them to obtain a dismissal or a conditional discharge (Charge IV), respondent should be severely censured.

Presiding Judge Markewich and Judges Suozzi and Mullen concur in Per Curiam opinion; Judge Cardamons concurs in a separate opinion in which Judge Moule concurs.

State of New York Court on the Judiciary

At a Court on the Judiciary for the State of New York held at Courthouse of the Appellate Division, First Department, New York, New York, on the 31st day of October A. D. 1977

Present: Honorable Arthur Markewich, Presiding Honorable Joseph A. Suozzi Honorable Milton Mollen Honorable Reid S. Moule Honorable Richard J. Cardamons

ORDER OF CENSURE In the Matter of the Proceeding Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Hubert Richter a Judge of the City Court of Kingston, Third Judicial Department

The Honorable Charles D. Breitel, Chief Judge of the Court of Appeals, having convened the Court on the Judiciary in the above-entitled matter in accordance with the provisions of section 22 (subd d) of article VI of the New York State Constitution; and, in accordance with section 22 (subd b) of article VI of the New York State Constitution, he having appointed as members of the court The Honorable Arthur Markewich, Associate Justice of the Appellate Division of the Supreme Court, First Department, as Presiding Officer of the court; The Honorable Joseph A. Suozzi and Milton Mollen, Associate Justices of the Appellate Division of the Supreme Court, Second Department; and The Honorable Reid S. Moule and Richard J. Cardamons, Associate Justices of the Appellate Division of the Supreme Court, Fourth Department; and,

The court having appointed The Honorable Frank J. Pino, Justice of the Supreme Court, to hear and report on the above-entitled matter; and Justice Pino, after holding hearings and taking testimony and considering the briefs submitted by counsel, having filed his report; and counsel appointed to conduct the proceeding as well as counsel for the respondent having each moved to affirm in part and to disaffirm in part the report of the Referee, finding that Charges I (a), (b) and (c), Charge II, Charge III and Charge IV (specifications 1, 2, 5, 6) had not been sustained and that Charges I (d) and (e), and Charge IV (specifications 3, 4) had been sustained, it is now

Ordered that the findings in the report of the Referee be affirmed with the exception that the court finds that the confrontation charged in specification (d) of Charge I was verbal, not physical; that specification (a) of Charge III, with the omission of the term "angrily”, was sustained; and it appearing

(1) That on February 27, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority in that, in connection with the sentencing of three defendants, Nicholas Malanios, Thomas Silva and Michael Traficante, he engaged in an angry, verbal confrontation with Nicholas Malanios and stated and otherwise expressed his intention and willingness to engage in a fight with Nicholas Malanios; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1 and 3 (subd A);

(2) That on March 1, 1975, while sitting as a Judge of the City Court of Kingston, Hubert Richter was intemperate, injudicious, and abusive and acted in excess of his lawful authority while arraigning a defendant, John Schiskie, in that he left the Bench, approached the defendant and demanded an apology from the defendant who was on the floor in the custody of three law enforcement officers; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1 and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1 and 3 (subd A); and

(3) That during the years 1970 to 1975, Hubert Richter, a Judge of the City Court of Kingston, failed to comply with or faithfully apply, the rules and procedures prescribed by law with respect to defendants appearing before him, in that he set conditions, issued directives and imposed sentences which were improper and unauthorized by law, and accepted guilty pleas and thereafter improperly dismissed the charges; all in violation of the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference of the State of New York, sections 33.1, 33.2 (subd [a]) and 33.3 (subd [a]), and the Code of Judicial Conduct, Canons 1, 2 (subd A) and 3 (subd A). More specifically, Hubert Richter, a Judge of the City Court of Kingston, in the following cases, ordered, directed or sentenced the defendants to make charitable contributions, after which the charges were dismissed or the defendants were conditionally discharged:

People v Jo Ann Womack People v Peter Fisher People v Gene L. Curtis People v Charles Peterson People v Daniel Lasher People v Louis Duffner People v Eddie Adams People v Dolores A. Walsh People v Emanuel McLeod People v Peter Tiano, Jr. People v James S. Wittaker People v Raymond J. Ritenberger People v John Palumbi;

And due deliberation having been had and the court having rendered its opinion in writing, it is

Ordered and adjudged that the said Judge Hubert Richter of the City Court of Kingston, Third Judicial Department, be severely censured. [Presiding Judge Markewich, and Judges Suozzi and Mollen concur in Per Curiam opinion; Judge Cardamons concurs in a separate opinion in which Judge Moule concurs.]

Enter:

Arthur Markewich (Signed) Arthur Markewich Presiding Officer Court on the Judiciary

Attested To: Hyman W. Gamso (Signed) Hyman W. Gamso Clerk of the Court on the Judiciary  