
    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 Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District.
    September 23, 1971.
    Present: Honorable Stanley H. Full, Presiding. Honorable John F. Scileppi Honorable Louis J. Capozzoli Honorable James D. Hopkins Honorable J. Clarence Herlihy Honorable Frank Del Yecchio
   Request to Convene Court

On January 18,1971 Hon. Harold A. Stevens, Presiding Justice of the Appellate Division -of the Supreme Court, First Judicial Department, under the authority vested in him by section 22 of article VI of the State Constitution, requested Chief Judge Stanley H. Fuld to convene a Court on the Judiciary “ to consider matters involving the conduct of Mitchell D. Schweitzer, a Justice of the Supreme Court of the State of New Yorh, First Judicial District”. A letter of that date from Presiding Justice Stevens to the Chief Judge regd as folloivs:

“ The New York State Joint Legislative Committee on Crime, Its Causes, Control and Effect on Society, of which the Honorable John H. Hughes is Chairman, has conducted Legislative Hearings involving the Honorable Mitchell D. Schweitzer, a Justice of the Supreme Court in this Department. Recently, a more complete transcript of the hearings were sent to me and, I am informed, to you also as Chief Judge.

Initially, upon receiving a digest of the testimony and with the consent of the Joint Legislative Committee to its release, I referred the matter to the Judiciary Relations Committee of this Department, of which the Honorable William C. Heoht, Jr. is chairman. This Committee was to investigate, study and make a report of its findings to this court. Within the past week an extensive transcript and digest of the legislative hearings was released by the Legislative Committee to the press. Because of the extensive publication of the charges as contained in the transcripts, it has been concluded, after consultation with my Associates, that the effectiveness of any action by the Judiciary Relations Committee has been impaired and that a wider forum is desirable in fairness to the Justice involved and for the protection of the integrity of the courts as well.

‘ ‘ Therefore, pursuant to Article 6, section 22, subdivision d, of the Constitution of the State of New York, I respectfully request that you as Chief Judge convene a Court on the Judiciary to consider the charges contained in the Legislative Report against the Honorable Mitchell D. Schweitzer, and make such disposition as in the opinion of such court is warranted. ’ ’

On January 21,1971, pursuant to Presiding Justice Steven’s request and in accordance with section 22 (subd. d) of article VI of the New York State Constitution, Chief Judge Stanley H. Fuld convened the Court on the Judiciary. The Court on the Judiciary is composed of Hon. Stanley H. Fuld, Chief Judge of the Court of Appeals, who is Presiding Officer of the Court on the Judiciary; Hon. John F. Scileppi, Associate Judge of the Court of Appeals; Hon. Louis J. Capozzoli, Justice of the Appellate Division of the Supreme Court, First Department; Hon. James D. Hopkins, Justice of the Appellate Division of the Supreme Court, Second Department; Hon. J. Clarence Herlihy, Presiding Justice of the Appellate Division of the Supreme Court, Third Department, and Hon. Frank Del Vecchio, Justice of the Appellate Division of the Supreme Court, Fourth Department. Associate Judge John F. Scileppi was designated by order of the Court of Appeals to sit in the place of the Senior Associate Judge of the Court of Appeals due to the latter’s absence at the time. Each of these Justices of the Appellate Division was designated as a member of the Court on the Judiciary by a concurrence of a majority of the Justices of his respective Appellate Division.

On February 12, 1971 the court sat, appointed Raymond J. Cannon as Clerk of the Court, and designated Lawrence E. Walsh of New York, New York, an attorney at law, to act as counsel to conduct the proceeding entitled: “ 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 Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District ”.

Three subsequent sessions of the court were held at Albany on March 4, June 11 and September 2, 1971 at which Rules of Procedure were adopted, assistant counsel were appointed, counsel designated to conduct the proceeding was authorized to compel the attendance and testimony of witnesses and the production of books, papers and documents and upon motion therefor an order was entered granting immunity to and directing two witnesses to testify after they had refused to answer questions on the ground that their testimony might incriminate them.

Rules of Procedure of Court on Judiciary

Rule I

The Chief Judge of the State of New York shall act as the presiding officer of this court. The death, sickness, resignation, removal from office, absence from the court or other disability of a member of the court shall not terminate its proceedings. If such a member is a member of the Court of Appeals, he may be replaced by a member of that court to be designated by that court. If such a member is a Justice of an Appellate Division of the Supreme Court, he shall be replaced by another member of the same Appellate Division designated by a concurrence of a majority of the Justices of such Appellate Division. If such member is not replaced within ten days, this court shall proceed to discharge its responsibilities in all respects notwithstanding such vacancy. In the absence, inability or disqualification of the Chief Judge, the Associate Judge of the Court of Appeals sitting as a member of this court shall act as presiding officer, and in his absence, inability or disqualification, the remaining members of the court shall elect a presiding officer.

Rule II

Four members of this court shall constitute a quorum. The affirmative concurrence of not less than four members of this court shall be necessary for a decision of removal, suspension pursuant to Rule X, or any decision finally concluding the proceedings before this court. Any other decision, ruling or determination may be made by a majority of the members present. A member shall not decide or take part in the decision of a question which was argued orally in the court when he was not present and sitting therein as a Judge. If a member is absent from a substantial part of a trial, the remaining members of the court may determine to complete the trial without his participation, in which event he shall not participate therein. A single member of the court may administer oaths and compel the production of books, papers, documents and records and the attendance of witnesses before the court or in any investigation conducted by counsel designated pursuant to Rule VI.

Rule HE

The court shall keep its records and hold its sessions, unless otherwise ordered by the court, at Court of Appeals Hall in the City of Albany. The hearings before this court shall be public. Any term of this court may be adjourned from day to day, or to a specified future day, by an entry in the minutes unless sooner convened by the presiding officer. Any member of this court may so adjourn a term thereof in the absence of a quorum.

Rule IV

The seal of the court shall be two and one quarter inches in diameter and shall consist of the device of the arms of the State of New York surrounded with the inscription: “ State of New York Court on the Judiciary ”. The clerk of the court shall have custody of the seal.

Rule V

The decisions, judgments, orders, notices and subpoenas of the court shall be attested by the clerk under the seal of the court.

Rule VI

Upon convening of the court, and thereafter as it determines, it may designate an attorney or attorneys at law to act as counsel to conduct the proceeding and designate a clerk, stenographer and such other officers and employees as it may deem necessary and appropriate.

Rule VII

Upon convening of the court or within a reasonable time thereafter, the presiding officer shall furnish to the other members of the court the request, complaint, evidence or information upon the basis of which he convened this court. The court shall thereafter determine whether further proceedings are warranted. If it concludes that they are not, an order shall be entered dismissing the proceeding. If the court concludes otherwise, it may authorize counsel to prepare charges, or it may authorize counsel to conduct such further investigation as it deems appropriate and thereafter to report thereon and to prepare charges. In conducting such investigation, counsel may be authorized to summon witnesses to appear and testify under oath before him and to compel the production of books, papers, documents and records. At the conclusion of such investigation or upon such date as the court may fix, counsel shall present charges or make such other report as may be appropriate. The court may thereupon determine preliminarily whether the charges state facts sufficient, if true, to constitute cause for removal. It may authorize further investigation prior to the preferral of charges, or order the proceeding dismissed.

Bum V1LL

If it is determined that charges should be preferred and that they are in a form fairly permitting an answer, the following action shall be taken:

(a) Notice of such charges and a copy thereof shall be personally served upon the Justice charged.

(b) The presiding officer shall give written notice to the Governor, the Temporary President of the Senate and the Speaker of the Assembly of the name of the Justice against whom charges have been preferred, a copy of the charges and the date set for hearing them.

(c) A hearing on such charges shall be set not less than sixty days after service on the Justice charged and after the giving of notice pursuant to subparagraph (b).

Bum IX

The Justice charged shall within twenty days of such service file his answer with the clerk of the court and serve a copy upon the counsel designated by the court to conduct the proceeding, or move to dismiss such charges or for a clarification thereof. In the event of such a motion, the court shall make an appropriate determination and allow such further time for answer as it deems proper. If such charges are finally determined by the court to be insufficient to constitute cause for removal, the court shall dismiss them. The presiding officer shall give written notice of such dismissal to the Joint Legislative Committee on Crime, Its Causes, Control, and Effect on Society, the Presiding Justice of the Appellate Division for the First Department, the Justice charged, the Governor, the Temporary President of the Senate and the Speaker of the Assembly. If the charges are not dismissed, upon the filing of the respondent’s answer or the expiration of time therefor, the court shall provide for a trial of the charges on the date set for hearing or any subsequent date which may be fixed by the presiding officer.

Rule X

At any time after service of such charges this court in its discretion may suspend the Justice charged from the exercise of his- office pending the determination of the removal proceeding. Such order of suspension shall remain in effect notwithstanding the commencement of proceedings before the legislature relating to the same charges.

Rule XI

If within thirty days after receipt of the notice to the Temporary President of the Senate and the Speaker of the Assembly pursuant to Rule VIII, a member of the- legislature prefers substantially the same charges against the respondent, the requirement for the respondent to answer shall be suspended and, except as otherwise provided in Rule X, all proceedings in this court shall be stayed pending its further order. If prior to the date set for hearing pursuant to Rule VIII such charges are entertained by a majority vote of the Assembly, such stay shall continue pending the conclusion of the proceedings of the legislature relating to such charges. Upon final determination by the legislature, the proceedings herein shall be dismissed.

Rule XII

1. If any witness refuses to answer a question or to produce evidence of any kind on the ground that he may be incriminated thereby, the court may, upon request of the counsel designated to conduct the proceeding, if it deems it necessary and proper, order such person to answer the question or produce the evidence, If such person complies with the order, and if, but for this rule, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided in Section 22 (f) of Article VI of the Constitution of the State of New York.

2. Immunity ” as used in this rule means such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.

Bulb XIII

The fees and mileage of witnesses attending under subpoena shall be the same as provided for witnesses in an action in the Supreme Court in the county in which they are required to appear and such witnesses shall not be entitled to prepayment thereof. The comptroller shall pay such fees and mileage after audit upon the certificate of the clerk.

On September 23, 1971 the Court on the Judiciary met in Albany at which session charges were presented to the court by counsel designated to conduct the proceedings based upon his investigation and, the court having determined preliminarily, pursuant to Rule VII of the Rules of Procedure of the Court on the Judiciary, that said charges state facts sufficient, if true, to constitute cause for removal of respondent Mitchell D. Schweitzer and are in a form fairly permitting an answer, it was directed that said charges be preferred against Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District, by the service upon him of the Notice of Charges and Charges, with opportunity for him to answer within 20 days.

Charges

I. Justice Schweitzer suffered his conduct to justify THE IMPRESSION THAT NATHAN VOLOSHEN COULD IMPROPERLY INFLUENCE HIM AND UNDULY ENJOY HIS FAVOR.

1. From 1960 through 1969, Justice Schweitzer openly and publicly accepted the entertainment and close friendship of Nathan Voloshen. During this period and prior thereto Voloshen’s primary occupation was that of a professional influence-peddler.

2. Justice Schweitzer knew, or with the exercise of care should have known, the true nature of Voloshen’s business and activities, in that:

(a) Voloshen intensified his cultivation of Justice Schweitzer after Justice Schweitzer became a Judge of the Court of General Sessions. After Justice Schweitzer became a Justice of the Supreme Court, Voloshen entertained him publicly almost weekly.

(b) As early as 1960, Voloshen disclosed the illicit nature of his activities when he, with Justice Schweitzer’s knowledge, arranged for Justice Schweitzer to receive a substantial gift of shrubs from Theodore Kordus, a nurseryman who Justice Schweitzer knew was seeking, with Voloshen’s assistance, improper governmental influence in connection with a State condemnation proceeding.

(c) Justice Schweitzer knew that Voloshen’s “ public relations ” business consisted of getting favorable action for his clients from governmental agencies and, in connection therewith, cultivating friendship with influential persons in government.

(d) In 1966 and thereafter, Voloshen, who Justice Schweitzer knew was not a practicing attorney in the State of New York, arranged meetings between Justice Schweitzer and lawyers who had matters pending before him and before other Justices of the Supreme Court of the State of New York.

3. Notwithstanding his knowledge of the aforesaid facts, Justice. Schweitzer continued his relationship with Voloshen and continued to be his public guest for restaurant dinners and other entertainment.

4. After Voloshen came under investigation for influence-peddling by the United States Attorney for the Southern District of New York and by a Grand Jury of that District, Justice Schweitzer continued to dine with him publicly, to counsel with him, and, on at least one occasion, to participate with him in questioning a witness who was about to testify before the Grand Jury about Voloshen.

5. Between September 1, 1968 and March 11, 1969, after the intercession of Voloshen, Justice Schweitzer intervened with various New York State officials on behalf of Manuel Bello, a prisoner reputed to be an agent of an organized criminal syndicate. After these efforts proved unsuccessful, Justice Schweitzer released the prisoner on specious legal and humanitarian grounds. In order to do this he knowingly misled an Assistant District Attorney by withholding facts in order to get his consent to part of his determination.

6. After a meeting arranged by Voloshen between Justice Schweitzer and defense counsel, Stanley Reiben, Justice Schweitzer on May 12,1969, without any presentence investigation, resentenced and released from prison Raymond Freda, who was serving consecutive sentences for several misdemeanors. Freda had been previously convicted of separate and successive charges of robbery from the person, burglary and bank robbery. Freda was believed by the FBI to be “ the most notorious criminal in New Jersey ”, and was believed by other law enforcement authorities to be implicated in several bank burglaries and armed robberies in addition to those for which he was convicted and in schooling young persons in criminal practices.

7. By his relationship with Voloshen and by the acts heretofore described:

(a) Justice Schweitzer failed to keep his official conduct free from impropriety and the appearance of impropriety and failed to maintain his personal behavior beyond reproach, in violation of Canon 4 of the Canons of Judicial Ethics.

(b) Justice Schweitzer suffered his conduct to justify the impression that certain persons could improperly influence him and unduly enjoy his favor, in violation of Canon 13.

(c) Justice Schweitzer permitted private interviews, arguments and communications designed to influhis judicial action, in violation of Canon 17.

(d) Justice Schweitzer used the power of his office and the influence of his name to promote the business interests of others, in violation of Canon 25.

(e) Justice Schweitzer failed to refrain from relations which would normally tend to arouse the suspicion that these relations warped and biased his judgment and prevented his impartial attitude of mind in the administration of his judicial duties, in violation of Canon 26.

(f) Justice Schweitzer accepted presents and favors from a person directly or indirectly practicing before him, in violation of Canon 32.

(g) Justice Schweitzer was not careful to avoid action which might tend to awaken the suspicion that his social relations and friendships constitute an element influencing his judicial conduct, in violation of Canon 33.

(h) Justice Schweitzer did not maintain his conduct above reproach; he did not administer justice according to law; and he allowed his private interests and those of his friends to interfere with the performance of his judicial duties, in violation of Canon 34.

II. In the case oe People v. Manuel Bello, Justice Schweitzer conspired with Nathan Voloshen to OBSTRUCT JUSTICE AND, IN EURTHERANCE OE THAT CONSPIRACY, DID OBSTRUCT JUSTICE.

8. On October 25, 1967, Manuel Bello pleaded guilty before Justice Schweitzer to the crime of attempted concealment and withholding of stolen securities. On December 11, 1967, he was sentenced by Justice Schweitzer to State prison for a term of from one year and three months minimum to two years and six months maximum. Under, such a sentence he was eligible for parole consideration in ten months.

9. On July 5, 1968, Bello’s counsel moved for resentence on the ground that the defendant had been suffering from a chronic coronary ailment, that this fact had not been brought to the attention of Justice Schweitzer at time of sentence and that the defendant was currently suffering from this disease in prison. On July 22, 1968, Justice Schweitzer summarily denied this motion.

10. In late August, 19.68, Voloshen first became active on behalf of Bello. On and after that date he and Justice Schweitzer, with intent to obstruct justice and to obstruct the proper administration of the Supreme Court of the State of New York, the Office of the District Attorney of New York County, and the New York State Division of Parole, and with intent to obstruct and interfere with the administration of law and the proper performance by public servants of their official functions, agreed and conspired to secure Bello’s release from prison.

11. Thereafter and in pursuance of that agreement:

(a) In the months of September through November, 1968, Justice Schweitzer, on the basis of substantially the same information submitted to him on Bello’s motion for resentence, which he had summarily denied, interceded on behalf of Bello with the Division of Parole and the Commissioner of Correction.

(b) In December, 1968, after having been paid a substantial sum of money on behalf of Bello, Yoloshen retained Henry Blumenthal to represent Bello in bringing a motion coram nobis to set aside his plea of guilty on the claim that Bello had not realized that he had pleaded to a felony.

(c) In mid-January, 1969, Yoloshen arranged a meeting between Justice Schweitzer, Henry Blumenthal and Yoloshen in order to discuss the coram nobis motion to be made before Justice Schweitzer. At this meeting or a subsequent meeting, Justice Schweitzer told Blumenthal that there were no valid grounds for permitting the withdrawal of the plea of guilty, but that Bello might prevail on humanitarian ” grounds.

(d) The motion was submitted by Blumenthal on February 5, 1969 and Bello was ordered to be produced in New York for a hearing on March 11,1969.

(e) While Bello was in New York awaiting his hearing, Bello complained of the subjective symptoms of a heart attack and was sent to Bellevue Hospital, where he was examined and treated by its staff. Blumenthal and Yoloshen arranged to have the prisoner there examined by Yoloshen’s personal physician, pursuant to an ex parte order of Justice Schweitzer.

(f) On March 11,1969, the date of the motion, Justice Schweitzer prevailed upon an Assistant District Attorney unfamiliar with the case to undertake to consent to the motion for the withdrawal of Bello’s plea of guilty by disclosing to him only those facts favorable to the motion.

(g) After Bello’s plea was withdrawn, he again pleaded guilty to the same crime. Although Justice Schweitzer could have reimposed the same sentence or a longer sentence, he resentenced Bello to time already served and released him forthwith. He did this on specious ‘ ‘ humanitarian ’ ’ grounds without any presentence investigation, solely on the basis of the report of Voloshen’s personal physician and without questioning any treating physician or examining the records of Bellevue Hospital, which contradicted Bello’s medical claim.

12. In his conduct of this case, Justice Schweitzer, pursuant to his agreement with Voloshen, knowingly released a person previously reported to him by the Probation Department and the State Division of Parole to be a reputed member of a criminal syndicate and the operator of a cocktail lounge at which liquor and narcotics were sold to minors. By so doing, he obstructed justice as administered by his own court, obstructed and interfered with the proper administration of law and obstructed and interfered with the administration of the New York State Division of Parole, which had denied parole after a review of Bello’s criminal background and medical claims. In so doing, he dealt deceitfully with the Assistant District Attorney who was relying on his candor and obstructed and interfered with the administration of the Office of the District Attorney of New York County.

13. By these acts Justice Schweitzer, with intent to obtain. a benefit for Bello and Voloshen, committed acts relating to his office which constituted an unauthorized exercise of his official functions, knowing that these acts were unauthorized, and refrained from performing a duty which was imposed upon him by law and which was inherent in the nature of his office.

14. By his agreement with Voloshen and by the acts heretofore described:

(a) Justice Schweitzer failed to avoid infractions of law (Penal Law, §§ 105.00, 195.00 and 195.05), in violation of Canon 4.

(b) Justice Schweitzer failed to keep his official conduct free from impropriety and the appearance of impropriety and failed to maintain his personal behavior beyond reproach, in violation of Canon 4.

(c) Justice Schweitzer suffered his conduct to justify the impression that certain persons could improperly influence him and unduly enjoy his favor, in violation of Canon 13.

(d) Justice Schweitzer permitted private interviews, arguments and communications designed to influence his judicial action, in violation of Canon 17.

(e) Justice Schweitzer used the power of his office and the influence of his name to promote the business interests of others, in violation of Canon 25.

(f) Justice Schweitzer was not careful to avoid action which might tend to awaken the suspicion that his social relations and friendships constitute an element influencing his judicial conduct, in violation of Canon 33.

(g) Justice Schweitzer did not maintain his conduct above reproach; he- did not administer justice according to law; and he allowed his private interests and those of his friends to interfere with the performance of his judicial duties, in violation of Canon 34.

III. In the case of People v. Michael Raymond, Justice Schweitzer and Stanley Polley conspired to OBSTRUCT JUSTICE AND, IN FURTHERANCE OF THAT CONSPIRACY, DID OBSTRUCT JUSTICE.

15. On October 26, 1956 Michael Raymond pleaded guilty before Justice Schweitzer to three counts of grand larceny in the first degree. The amount of the larceny was over $80,000. In order to permit Raymond to make restitution, sentence was adjourned to May 20, 1957 and Raymond was placed under probation supervision. Raymond had submitted securities worth approximately $25,000 to his attorney as part of the restitution and had also deposited with the Probation Department $11,000, part of which consisted of two checks each in the amount of $5,000.

16. In a series of reports submitted by the Probation Department during February, March and May of 1957, Justice Schweitzer was informed that Raymond had only superficially complied with the reporting requirements of the Probation Department, that he had failed to comply with the restitution order that required monthly payments; that he had failed to give credible evidence of legitimate employment, and that while under probation supervision he had been arrested for the issuance of three checks forged under an assumed name. The Probation Department also reported to Justice Schweitzer that the two $5,000 checks given to commence restitution had both been returned for lack of funds. In February the Department requested advice from Justice Schweitzer as to whether Raymond’s appearance for sentence should be accelerated and subsequently requested a warrant for Raymond’s arrest.

17. In early March, 1957 Raymond met with Stanley Polley, a nonlawyer and personal friend of Justice Schweitzer. On that occasion Raymond agreed to pay Polley to exert improper influence on Justice Schweitzer in order to delay Raymond’s commitment and in order to secure a light sentence. Thereafter Raymond did in fact pay Polley $25,000 for this purpose.

18. In early March, 1957 Justice Schweitzer, Stanley Polley and Michael Raymond, with intent to obstruct justice and the due administration of the laws of the State of New York, agreed and conspired to delay Raymond’s sentence and to obtain for Raymond a lenient sentence.

19. In pursuance of said agreement:

(a) In early March, 1957, Stanley Polley spoke with Justice Schweitzer by telephone.

(b) In early March, 1957, Stanley Polley and Michael Raymond drove to the Concourse Plaza Hotel at which time Stanley Polley spoke with Justice Schweitzer.

(c) On or about March 11, 1957, Justice Schweitzer granted Michael Raymond a 60-day adjournment of sentence.

(d) From on or about May 13, 1957 to May 23, 1958, Justice Schweitzer granted successive adjournments of the sentence of Michael Raymond in disregard of consistent reports by the Probation Department that Raymond had refused to give them credible evidence of legitimate employment.

(e) On June 25, 1958, notwithstanding consistent adverse reports concerning the activities of Michael Raymond as well as a criminal indictment returned against Raymond for crimes committed during the period of his probation supervision, Justice Schweitzer imposed on Raymond concurrent sentences of only eight months on each of the three counts of grand larceny in the original case and on one count of petty larceny in the subsequent separate indictment, thus enabling Raymond to be paroled in four and a half months.

20. By his agreement with Stanley Polley and Michael Raymond and by the acts heretofore described:

(a) Justice Schweitzer failed to avoid infractions of law (former Penal Law, § 580), in violation of Canon 4.

(b) Justice Schweitzer in his official conduct failed to keep himself free of impropriety and the appearance of impropriety, in violation of Canon 4.

(c) Justice Schweitzer suffered his conduct to justify the impression that certain persons could improperly influence him and unduly enjoy his favor, in violation of Canon 13.

(d) Justice Schweitzer failed to refrain from relations which would normally tend to arouse the suspicion that these relations warped and biased his judgment and prevented his impartial attitude of mind in the administration of his judicial duties, in violation of Canon 13.

(e) Justice Schweitzer was not careful to avoid action which might tend to awaken the suspicion that his social relations and friendships constitute an element influencing his judicial conduct, in violation of Canon 33.

(f) Justice Schweitzer did not maintain his conduct above reproach; he did not administer justice according to law; and he allowed his private interests and those of his friends to interfere with the performance of his judicial duties, in violation of Canon 34.

IV. In the case op Schine v. Schine, Justice Schweitzer ATTEMPTED TO OBSTRUCT JUSTICE.

21. Schine v. Schine, a matrimonial case, was pending in the Supreme Court of New York County in April, 1968, but not before Justice Schweitzer. Mrs. Schine was represented by Jacob Rappoport, a close friend of Justice Schweitzer ; Mr. Schine was represented by Richard Weis.

22. Immediately before trial was to commence, at the request of his friends Jacob Rappoport and Nathan Voloshen, Justice Schweitzer appeared at a restaurant meeting of Weis, Rappoport and Voloshen and attempted to coerce a settlement favorable to Rappoport’s client.

23. On April 29, 1968, Justice Schweitzer, in a restaurant and in full view of the parties and their attorneys, made a public display of meeting privately with the Justice assigned to the case, thereby giving the appearance that he was interceding further in the matter.

24. By his relationship with Jacob Rappoport and Nathan Voloshen and the acts heretofore described:

(a) Justice Schweitzer in his official conduct failed to keep himself free from impropriety and the appearance of impropriety, in violation of Canon 4.

(b) Justice Schweitzer suffered his conduct to justify the impression that certain persons could improperly influence him and unduly enjoy his favor, in violation of Canon 13.

(e) Justice Schweitzer used the power of his office and the influence of his name to promote the business interests of others, in violation of Canon 25.

V. Justice Schweitzer improperly interceded with STATE AGENCIES ON BEHALF OF OTHERS.

25. In the case of Manuel Bello, Justice Schweitzer, at the request of Nathan Voloshen, interceded both with the Correction Department to assist Bello to develop evidence favorable to his release and with the Division of Parole to obtain favorable consideration for Bello’s release.

26. In the case of Leo D’Angelo, Justice Schweitzer, at the request of his friends William Levine and Henry Garfinkle, interceded with the Division of Parole in order to relax the supervision of D’Angelo’s parole contrary to the accepted practice of said Division.

27. In the case of Corey Feldman, who was sentenced in Nassau County by another Judge, Justice Schweitzer, at the request of his friend Samuel Goldberg, interceded with the Correction Department to arrange Feldman’s transfer from Elmira Reformatory to Greenhaven Prison.

28. By the acts heretofore described:

(a) Justice Schweitzer failed to keep his official conduct free from impropriety and the appearance of impropriety, in violation of Canon 4.

(b) Justice Schweitzer suffered his conduct to justify the impression that certain persons could improperly influence him and unduly enjoy his favor, in violation of Canon 13.

(c) Justice Schweitzer was not careful to avoid action which might tend to awaken the suspicion that his social relationships and friendships constitute an element influencing his judicial conduct, in violation of Canon 33.

(d) Justice Schweitzer did not maintain his conduct above reproach, in violation of Canon 34.

VI. Justice Schweitzer’s private business activities WERE INCONSISTENT WITH HIS JUDICIAL DUTIES.

A. Justice Schweitzer Acted Inconsistently With His Judicial Office by Engaging in Money Lending Activities.

29. At least since 1963, Justice Schweitzer was extended substantial unsecured loans by the Royal National Bank, at the prime interest rate or below it, and from time to time reloaned this money at substantially higher interest rates to money lenders, for second mortgages and for taxicab chattel mortgages. He also used the proceeds of these loans to buy securities. In order to borrow for these purposes he made false statements as to the purpose of these loans.

30. By the acts heretofore described :

(a) Justice Schweitzer failed to keep his official conduct free from impropriety and the appearance of impropriety and failed to maintain his personal behavior beyond reproach, in violation of Canon 4.

(b) Justice Schweitzer incurred obligations which appeared to interfere and be inconsistent with the proper administration of his judicial functions, in violation of Canon 24.

(c) Justice Schweitzer used the power of his office and the influence of his name to promote his own private interests and the private interests of others, in violation of Canon 25.

(d) Justice Schweitzer was not careful to avoid action which might tend to awaken suspicion that his social and business relations and friendships constitute an element influencing his judicial conduct, in violation of Canon 33.

(e) Justice Schweitzer did not maintain his conduct above reproach, in violation of Canon 34.

B. Justice Schweitzer’s Substantial Interests in Taxicab and Finance Companies Were Incompatible With Membership in a Court Before Which Such Enterprises Were Frequent Litigants.

31. Prior to becoming a Judge, Justice Schweitzer was an active taxicab fleet operator. He continued his beneficial interest in a sizeable fleet during the first five years of his service on the Municipal Court. Thereafter, he continued to hold chattel mortgages on a substantial number of taxicabs from time to time. In addition, while on the Supreme Court, he made substantial loans to local finance companies.

32. By the acts heretofore described:

(a) Justice Schweitzer failed to keep his official conduct free from impropriety and the appearance of impropriety, in violation of Canon 4.

(b) Justice Schweitzer incurred obligations which appeared to interfere and be inconsistent with the proper administration of his judicial functions, in violation of Canon 24.

(c) Justice Schweitzer made personal investments in enterprises which were apt to be involved in litigation in the court of which he was a member, in violation of Canon 26.

(d) Justice Schweitzer did not maintain his conduct above reproach, in violation of Canon 34.

VII. Although afforded the opportunity to explain his conduct, Justice Schweitzer has failed to do so AND HE HAS NOT BEEN CANDID IN HIS SWORN TESTIMONY BEFORE THE JOINT LEGISLATIVE COMMITTEE ON CRIME, BEFORE THE GrRAND JURY OF THE UNITED STATES DISTRICT Court for the Southern District of New York, and BEFORE COUNSEL DESIGNATED BY THIS COURT.

33. With respect to Nathan Voloshen:

(a) Justice Schwitzer claims that although he had dinner with him almost weekly for over five years he never once inquired as to what Voloshen actually did for his “ public relations ” clients or for any one of them and that Voloshen never told him what he actually did.

(b) Justice Schweitzer has given conflicting and evasive testimony as to Theodore Kordus ’ desire for his assistance, the size of Kordus’ gift and the implicit purpose of the gift.

(c) Justice Schweitzer has given conflicting and evasive testimony as to his conversations with Voloshen regarding the case of Manuel Bello in an effort to exclude or minimize his participation with Voloshen in conversations with Bello’s lawyer, Henry Blumenthal, and his prior knowledge of the desire of certain Massachusetts Congressmen to obtain favorable consideration for Bello.

(d) In May, 1971, while being examined by the Grand Jury of the United States District Court for the Southern District of New York, Justice Schweitzer caused Elmer Reeves, Chief Probation Officer of New York County, to prepare and file an exculpatory statement of Justice Schweitzer’s handling of the resentence of Raymond Freda, even though Justice Schweitzer knew that the Probation Department had made no investigation of Freda and that Reeves had no knowledge regarding Freda which would support the statement or the impression intended to be created by the statement.

(e) Justice Schweitzer has given conflicting and evasive testimony in order to minimize his participation with Voloshen in the preparation of Voloshen’s attempted defense when under investigation by the United States Attorney for the Southern District of New York and the Grand Jury of the United States District Court for the Southern District of New York.

(f) Justice Schweitzer has,_ given conflicting and • evasive testimony with respect to the size and frequency of gifts from Nathan Voloshen.

34. With respect to Stanley Polley and Michael Raymond, Justice Schweitzer has denied any recollection whatever of the Michael Raymond case, although it was pending before him for approximately two full years, from June 25, 1956 to June 25, 1958.

35. With respect to Jacob Rappoport, Justice Schweitzer has given conflicting and evasive testimony in an effort to minimize and distort his participation in Rappoport’s effort to use Justice Schweitzer’s judicial power and prestige to coerce a settlement from Rappoport’s opponent.

36. Justice Schweitzer has given evasive testimony with respect to the extent of his efforts to relax the supervision of Leo D’Angelo’s parole.

Lawrence E. Walsh

Counsel

Order of Suspension

Pursuant to the authority conferred on the Court on the Judiciary by section 22 (subd. d) of article VI of the State Constitution and, in accordance with Rule X of the Rules of Procedure of the Court on the Judiciary, it was ordered that Mitchell D. Schweitzer be suspended without pay from the exercise of his office, subject to the right of said Mitchell D. Schweitzer to receive the salary of his office during t%e period of this suspension in the event of the ultimate dismissal of the charges herein preferred or to be preferred, such suspension to become effective immediately upon service of the Notice of Charges, the Charges and the order of suspension. The Order of Suspension recited:

“ Upon hearing Lawrence E. Walsh, counsel designated to conduct these proceedings, and upon his report herein and the charges preferred herein, it is hereby

‘ ‘ ordered, pursuant to section 22 (subd. d) of article VI of the Constitution a/nd Rule X of the Rules of Procedure of this Court that Mitchell D. Schweitzer be and he hereby is suspended without pay from the exercise of his office pending the conclusion of these proceedings, subject to the right of said Mitchell D. Schweitzer to receive the salary of his office during the period of this suspension in the event of the ultimate dismissal of the charges herein preferred or to be preferred; and it is further

“ ordered that such suspension shall take effect immediately upon service of the charges herein with a copy of this order.”

Notice op Charges Preferred

By letter dated September 23, 1971 Stanley H. Fuld, Presiding Judge of the Court on the Judiciary, informed the Governor of the State of New York, the Lieutenant Governor, the Temporary President pf the New York State Senate and the Speaker of the Assembly (see N. Y. Const., art. VI, § 22, subd. e) that charges had been preferred against Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District, by the service upon him [on September 23,1971] of a copy of charges for removal; that the Court on the Judiciary, pursuant to Bule VII of its Buies, had determined that such charges stated facts sufficient, if true, to constitute cause for removal of respondent Mitchell D. Schweitzer and were in a form fairly permitting an answer; that the court had directed that a copy thereof be served upon him with an opportunity to answer within 20 days; that the court had ordered that the said Mitchell D. Schweitzer be suspended without pay from the exercise of his office, subject to the right to receive the salary of his office during the period of suspension in the event of ultimate dismissal of the charges preferred or to be preferred, and that the court had set December 13,1971 at 2:00 p.m. as the date for the hearing of the charges. Said letter read as.follows:

Pursuant to section 22 (d) of article 6 of the Constitution, notice is hereby given that:

“ (1) By letter dated January 18,1971, Hon. Harold A. Stevens, Presiding Justice of the Appellate Division of the Supreme Court, First Judicial Department, under the authority vested in him by section 22 (d) of the Constitution requested me as Chief Judge of the Court of Appeals to convene the Court on the Judiciary to consider matters involving the conduct of Mitchell D. Schweitzer, a Justice of the Supreme Court of the State of New York, First Judicial District;

“ (2) On January 21, 1971, I, as Chief Judge of the Court of Appeals convened the Court on the Judiciary as required by section 22 (d) of article 6 of the Constitution;

“ (3) The Court on the Judiciary is composed of Hon. Stanley H. Fuld, Chief Judge of the Court of Appeals, who is Presiding Officer of the Court on the Judiciary; Hon. John F. Scileppi, Associate Judge of the Court of Appeals; Hon. Louis J. Capozzoli, Justice of the Appellate Division of the Supreme Court, First Department; Hon. James D. Hopkins, Justice of the Appellate Division of the Supreme Court, Second Department; Hon. J. Clarence Herlihy, Presiding Justice of the Appellate Division of the Supreme Court, Third Department, and Hon. Frank Del Vecchio, Justice of the Appellate Division of the Supreme Court, Fourth Department. Associate Judge F. Scileppi was designated by order of the Court of Appeals to sit in the place of the Senior Associate Judge of the Court of Appeals due to the latter’s absence at the time. Each of these Justices of the Appellate Division was designated as a member of the Court on the Judiciary by a concurrence of a majority of the Justices of his respective Appellate Division;

“ (4) The court sat on February 12,1971, appointed Raymond J. Cannon, Clerk of the Court, and designated Lawrence E. Walsh of New York, New York, an attorney at law, to act as counsel to conduct proceedings entitled: ‘ In the Matter of the Proceedings pursuant to Section 22 of Article 6 of the Constitution in relation to Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District ’;

“ (5) Three subsequent sessions of the Court were held at Albany on March 4, June 11 and September 2, 1971 at which Rules of Procedure were adopted, Assistant Counsel were appointed, Counsel Designated to Conduct the Proceeding was authorized to compel the attendance and testimony of witnesses and the production of books, papers and documents and upon motion therefor an order was entered granting immunity to and directing two witnesses to testify after they had refused to answer questions on the ground that their testimony might incriminate them.

“ (6) Thereafter, and on September 23, 1971 the said Court on the Judiciary met in Albany at which session Charges were presented to the Court by Counsel Designated to Conduct the Proceedings based upon his investigation and, the Court having determined preliminarily, pursuant to Rule VII of the Rules heretofore adopted, that said Charges state facts sufficient, if true, to constitute cause for removal of respondent Mitchell D. Schweitzer and are in a form fairly permitting an answer, it was directed that said Charges be preferred against Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District by the service upon him of the Notice of Charges and Charges, a copy of each of which is attached hereto and made a part hereof, with opportunity for him to answer within twenty (20) days.

(7) Pursuant to the authority conferred on the Court on the Judiciary by section 22 (d) of the Constitution and, in accordance with Bule X of the Buies of Procedure adopted herein, it was ordered that said Mitchell D. Schweitzer be suspended without pay from the exercise of his office, subject to right of said Mitchell D. Schweitzer to receive the salary of his office during the period of this suspension in the event of the ultimate dismissal of the charges herein preferred or to be preferred, such suspension to become effective immediately upon service of the Notice of Charges, the Charges and thé order of suspension.

“ (8) The Court on the Judiciary has fixed December 13,1971 at 2 p.m. as the date for a hearing of the charges in accordance with section 22 (e) of the Constitution.”

The order of the court recited:

“Lawrence E. Walsh, ,counsel designated to conduct these proceedings, pursuant to Bule VII of the Buies of Procedure, reported to the Court concerning his investigation and having presented to the Court Charges based upon said investigation,

“And the Court having found preliminarily, and without prejudice to an appropriate motion by respondent to dismiss for lack of sufficiency thereof, that such charges state facts sufficient, if true, to constitute cause for the removal from office of Mitchell D. Schweitzer, that said Charges should be preferred, and that said Charges are in a form fairly permitting an answer, it is hereby

ordered, that counsel designated to conduct these proceedings be and hereby is directed to have served personally upon Mitchell D. Schweitzer notice of such Charges and a copy thereof, and it is further

ordered, that a hearing on said Charges shall, be held at the Court of Appeals Hall in the City of Albany on the 13th day of December, 1971, at 2 o’clock in the afternoon or as soon thereafter as the proceedings may be heard.”

Motion for Reconsideration

On November 22,1971 the Court on the Judiciary meeting at Albany granted a motion made on behalf of Mitchell D. Schweitzer for reconsideration of the court’s decision and order entered September 23,1971 and upon such consideration adhered to the original decision. The order of the court read as follows:

A motion having been made on behalf of Mitchell D. Schweitzer, the respondent herein, for reconsideration of the court’s decision and order entered September 23, 1971 insofar as respondent is therein suspended without pay from the exercise of his office of Justice of the Supreme Court, First Judicial District, pending the conclusion of these proceedings, subject to his right to receive the salary of his office during the period of this suspension in the event of the ultimate dismissal of the charges herein preferred or to be preferred, and, upon such reconsideration, for an order striking the provision suspending respondent without pay, and, papers having been submitted in support of the motion and in opposition thereto, it is

Ordered, that the motion for reconsideration be, and the same hereby is, granted and, upon such reconsideration, the original decision is adhered to.

The court’s decision Per Curiam read:

Per Curiam.

In its order of September 23, 1971, this court, having found, “ preliminarily,” that the charges of misconduct filed against the respondent “ state fact sufficient, if true, to constitute cause for removal,” ordered that he be suspended without pay. The respondent now moves for reconsideration of that order. In our view, section 22 of article VI of the State Constitution, as well as the rules of this court, authorizes the Court on the Judiciary to suspend without pay a Judge or Justice following the filing of charges of misconduct against him. The court does, .of course, have discretion to provide for the payment of salary during the period of suspension on a proper showing. We would only add that, if the facts adduced upon the hearing do not establish cause for removal of the respondent, he will be entitled to his salary from the date of his suspension.

The motion for reconsideration should be granted and, upon such reconsideration, the original decision adhered to.

Capozzoli, J. (dissenting).

The Court on the Judiciary was created by section 22 of article VI of the New York State Constitution as a court of limited jurisdiction with such powers as specifically spelled out. Subdivision d of the quoted section provides, amongst other things, ‘ ‘ The court in its discretion may suspend the judge or justice from the exercise of his office pending the determination of the removal or retirement proceedings before the court ”. Subdivision g of the same section provides that the Court of the Judiciary shall have such further powers as may be provided by law. It is conceded that there is no precedent for the action of this court in suspending this respondent without pay. Therefore, it is necessary to look into the general law which has been heretofore applied in the suspension of public officers.

In Matter of Skinkle v. Murray (221 App. Div. 301), the court construed the meaning of the word “ suspension” as used in the rule under which the petitioner was suspended by his superior. This was done in order to arrive at a determination as to whether the suspension could be without salary. It held that the pay could not be withheld pending trial. At pages 303-304 the court said: “ There is not in this section authority for the order withholding Skinkle’s pay * * * the chief of police is authorized to suspend from duty any patrolman until the commissioner takes action upon the charges pending against the officer suspended. The chief is not authorized, however, to withhold his pay pending trial of the charges * * *. Had it been intended to confer authority to withhold pay pending charges we think it would have been so expressed in the rule or the charter and thus we cannot think that the authority to withhold pay may be implied from the authority to suspend from duties ”.

In the absence of a specific statutory authorization, the pay of a government employee cannot be withheld while under suspension pending trial. (Matter of Gould v. Looney, 60 Misc 2d 973.) In the last-cited case at page 978, the court said: “ There is good reason to be chary of pay-withholding power where there is no specific statutory grant. Just as the courts would not infer a power to suspend simply from a power to remove [citing case] this court will not infer a power to withhold pay from the naked power to suspend.”

Under the State Constitution in article VI (§ 25, subd. a) it is provided that “ The compensation of a judge * * * shall not be diminished during the term of office for which he was elected ’ This provides an additional reason why the respondent should not be deprived of his salary during suspension. He has not vacated his office. While it is true that he cannot function as a Justice of the Supreme Court because of the suspension, he is nevertheless still a Justice of the Supreme Court until he is dismissed or resigns. He is entitled to a trial on the charges filed against him, and to take away his salary before his trial is tantamount to punishing him as though he were already found guilty.

Chief Judge Fuld and Judges Scileppi, Hopimsrs, Herlihy and Del Vecchio concur; Judge Capozzoli dissents and votes to eliminate from the original order the provision that such suspension be without pay.

Motion for reconsideration granted and, upon reconsideration, the original decision is adhered to.

Motion for Bill of Particulars

Also on November 22,1971 the court granted in part a motion made on behalf of Mitchell D. Schweitzer for a bill of particulars. The order of the court read:

A motion having been made on behalf of Mitchell D. Schweitzer, the respondent herein, for an order requiring Counsel Designated to Conduct the Proceeding to clarify the charges preferred against said respondent by supplying additional particulars of such charges, and papers having been submitted in support of the motion and in opposition thereto, it is

Ordered, that the motion be, and the same hereby is, granted to the extent that Counsel Designated be, and he hereby is, directed to grant the clarifications and particulars requested on or before December 1,1971 with respect to the following:

Charge I, Paragraph 2(a), 2(b) and 2(d);

Charge I, Paragraph 4 only insofar as it seeks the name of the New York State officials with whom the respondent allegedly intervened on behalf of Bello; the name of the Assistant District Attorney whom the respondent allegedly misled and the facts which the respondent allegedly withheld from him;

Charge II, Paragraph 11(a), 11(c) and 11(f);

Charge II, Paragraph 17;

Charge TV, Paragraph 22 only insofar as it seeks the name of the restaurant where the alleged meeting occurred between the respondent, Jacob Rappopprt, Voloshen and Richard Weis;

Charge V, Paragraph 26;

Charge V, Paragraph 27; and

Charge VII, Paragraph 29, and it is further

Ordered, that the motion be, and the same hereby is, in all other respects denied.

The court’s decision Per Curiam read:

Per Curiam. Motion of the respondent for a bill of particulars is granted to the following extent:

1. Paragraph 2(a), 2(b) and 2(d).

2. Paragraph 4 only insofar as it seeks the name of the witness with whom the respondent allegedly participated in questioning.

3. Paragraph 5 only insofar as it seeks the names of New York State officials with whom the respondent allegedly intervened on behalf of Bello; the name of the Assistant District Attorney whom the respondent allegedly misled and the facts which the respondent allegedly withheld from him.

4. Paragraph 11(a), 11(c) and 11(f).

5. Paragraph 17.

6. Paragraph 22 only insofar as it seeks the name of the restaurant where the alleged meeting occurred between the respondent, Jacob Rappoport, Voloshen and Richard Weis.

7. Paragraph 26.

8. Paragraph 27.

9. Paragraph 29.

Chief Judge Ftjld and Judges Scileppi, Capozzoli, Hopkins, Heruhy and Del Vecchio concur.

The motion is, in all other respects, denied. The particulars hereinabove directed to be supplied shall be furnished to the respondent on or before December 1, 1971.

Motion for Discovery

Also on November 22,1971, the court granted in part a motion made on behalf of Mitchell D. Schweitzer for discovery. The order of the court read:

A motion having been made on behalf of Mitchell D. Schweitzer, the respondent herein, for an order directing Counsel Designated to Conduct the Proceedings to furnish to said respondent: (1) a copy .of the transcript of the testimony of Mitchell D. Schweitzer given before Counsel Designated and/ or Assistant Counsel Designated with exhibits marked on such examinations; (2) a copy of the transcript of the testimony of every other witness examined before Counsel Designated and/or Assistant Counsel Designated; and (3) in the case of witnesses whose testimony was not recorded by a court reporter, a copy of every statement given by any witness herein to Counsel Designated and/or Assistant Counsel Designated and of every memorandum reflecting the results of interviews with such witnesses; and papers having been submitted in support of such motion and in opposition thereto, and, after hearing counsel, it is

Ordered, that the motion be, and the same hereby is, granted to the extent that Counsel Designated be, and he hereby is, directed to furnish the attorneys for respondent, on or before November 29, 1971, with a copy of the transcript of the testimony of respondent, Mitchell D. Schweitzer, the exhibits marked on his examination and a copy of the transcript of the testimony .of the witness Nathan Voloshen; and it is further

Ordered, that the motion be, and the same hereby is, in all other respects denied.

The court’s decision Per Curiam read:

Per Curiam. In this proceeding before the Court on the Judiciary — and our determination is limited to such a proceeding under the circumstances here disclosed—it is our decision that the respondent’s motion for discovery be granted to the extent of directing Counsel Designated to Conduct the Proceedings to furnish a copy of the transcript of the testimony of respondent Mitchell D. Schweitzer given before said Counsel; the exhibits marked on the examination of said respondent; and a copy of the transcript of the testimony of Nathan Voloshen, now deceased, given before said Counsel.

Chief Judge Ftjld and Judges Scileppi, Capozzoli, Hopkins, Herlihy and Del Vecchio concur.

The motion is, in all other respects, denied. Such material is to be furnished to the respondent on or before November 29, 1971.

Motion for Extension of Time

Also on November 22,1971 the court granted a motion made on behalf of Mitchell D. Schweitzer for an extension of time. The order of the court read:

A motion having been made on behalf of Mitchell D. Schweitzer, the respondent herein, for an order granting said respondent an extension of time to answer or otherwise move with respect to the charges preferred against him and papers having been submitted in support of said motion and in opposition thereto, it is

Ordered, that the motion be, and the same hereby is, granted and that the time for serving and filing respondent’s answer to the charges herein or for moving with respect to said charges be, and it hereby is, extended to December 10,1971.

Adjournment

On December 9, 1971 the Court on the Judiciary ordered an adjournment of the hearing previously fixed for December 13, 1971 to Monday, January 24,1972. The order of the court read:

The date for a hearing on the charges preferred against Mitchell D. Schweitzer, the respondent herein, having been by order entered September 23, 1971 fixed for December 13, 1971 and counsel for said respondent having applied by letter dated December 6, 1971 for an adjournment of said hearing to the latter part of January, 1972 on the ground that insufficient time had been provided in which to prepare for said hearing by reason of the pendency of motions before this court as well as before the United States District Court for the Southern District of New York and also on the ground of respondent’s ill health and Counsel Designated to Conduct the Proceeding having no objection to such adjournment, it is

Ordered that the hearing herein be, and the same hereby is, adjourned to Monday, January 24, 1972, at Court of Appeals Hall, Albany, at 2:00' o’clock in the afternoon or as soon thereafter as the proceedings may be heard.

Answer to Charges

On December 10,1971 the Answer to the Charges was filed by Justice Mitchell D. Schweitzer. The Answer read as follows:

Mitchell D. Schweitzer, respondent herein, by his attorneys, Myron J. Greene, Esq., Millard and Greene, and Charles A. Stillman, Esq., Botein, Hays, Sklar and Herzberg, for his answer to the charges, alleges as follows:

As to Charge I

1. Answering paragraph “1”, denies knowledge that during the period mentioned, .Nathan Voloshen’s occupation, as alleged in the charge, was that of a “ professional influence peddler ’ ’ and alleges that for some time prior to 1969 he was a friend of the said Voloshen and his guest on different occasions.

2. Denies that he knew, or with the exercise of care should have known, the nature of Voloshen’s business and activities, as alleged in paragraphs 2 ” and “3” and, with reference to subdivisions (a), (b), (c) and (d) of paragraph “2”, denies that Voloshen at any time disclosed anything to respondent which would have led him to believe that Voloshen was engaged in any illicit activities; denies that he had knowledge that Voloshen had arranged for respondent to receive a gift of shrubs from one Theodore Kordus; denies that he knew that the said Kordus was seeking improper governmental influence with Voloshen’s assistance. Alleges that insofar as he knew, Voloshen was engaged in the business of public relations and, in connection -with such business, Voloshen met and had acquaintance with persons in business and public life; that he was advised that Voloshen was licensed to practice law in the State of Maryland but that he did not practice law in the State of New York; that on several isolated occasions over the years Voloshen met respondent while in the company of lawyers and, in this respect, such meetings were not arranged with respondent’s knowledge or for the purpose of discussing any cases or matters pending before him or any other Justice of the Supreme Court. Except as otherwise alleged, respondent denies the allegations in the said subdivisions of paragraph “ 2 ”.

3. Denies the allegations of paragraph “ 4 ”, except that during the period referred to, respondent, from time to time, dined publicly with Voloshen.

4. With reference to paragraph “5”, the allegations contained therein are dealt with in the answer herein to Charge II, infra.

5. Answering paragraph “6”, alleges that in respondent’s resentencing of Raymond Freda on May 12, 1969, he acted properly in the light of all the circumstances, which included the following factors: (a) that before Freda had begun to serve his State sentence, he had served a Federal sentence of more than three years and, that upon his release by respondent, Freda would still be continued under Federal parole supervision; (b) that Freda had a job to go to and a wife and family with whom he had been reunited; (c) the views expressed by Chief Probation Officer Reeves, and (d) representations made by defense counsel. Respondent denies that any action pertaining to Freda had any connection with any meeting with Voloshen or the defendant’s counsel.

6. Denies each and every allegation contained in paragraph “7”.

As to Charge II

1. Denies knowledge of when Nathan Voloshen became active on behalf of Bello and in all other respects denies each and every allegation contained in paragraph “ 10 ”.

2. Denies that any of the actions alleged in paragraph “ 11 ”, and in any and all subdivisions thereof, were pursuant to any agreement as alleged in paragraph ‘‘10 ” of the charge, or that justice was, in fact, obstructed. Respondent further denies knowing that Voloshen had received any fee in the Bello case, or that the physician who examined Bello was Voloshen’s personal physician, or that the latter’s report was in any way false or fraudulent, if, in fact, it was.

3. Respondent further denies that the District Attorney’s consent to the motion for withdrawal of Béllo’s plea was obtained by any misrepresentation or deliberate concealment of facts on his part. Respondent alleges that his actions in" this case were motivated to a substantial extent by his sincere belief in the medical history of Bello which was placed before him at that time and the representations to him at that time, from which it appeared that further incarceration of the defendant would represent a threat to the defendant’s life.

4. Denies each and every allegation contained in paragraphs “12”, “13” and “14”.

As to Charge III

1. With respect to paragraphs “15”, “16”, “19(c)”, “ 19(d) ” and “ 19(e) ”, which purport to set forth data pertaining to court records and proceedings and reports made by the Probation Department in the case of Michael Raymond, respondent refers to the actual records and reports for the information set forth therein.

2. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “ 17 ”.

3. Denies each and every allegation contained in paragraph “18”.

4. Answering paragraph “ 19 ” and each and every subdivision contained in said paragraph, denies that respondent did anything in the Raymond case pursuant to any agreement with Polley, or that respondent at any time spoke to, or was spoken to. • by Polley about the Raymond case.

5. As to paragraph “20”, denies each and every allegation set forth therein and every subdivision thereof.

As to Charge IV

1. Answering paragraph “ 22 ’ ’, denies that he at any time attempted in any manner to coerce any settlement in the 8chine ease and further denies that he participated in any discussion of it with any of the parties thereto or their counsel.

2. Denies each and every allegation contained in paragraphs “ 23” and “24”.

As to Charge V

1. As to paragraph “ 25 ”, denies that he communicated with the Correction Department and the Division of Parole relative to Bello at the request of Voloshen, or that the purpose of his communication with those departments was in any respect improper.

2. Denies that he communicated with the Division of Parole relative to Leo D’Angelo for the purpose of obtaining a relaxation in the supervision of D’Angelo’s parole and alleges that his communication with that department was for the purpose of having it look into a claim that D ’Angelo was being harassed, rather than supervised, by his parole officer, and further alleges that in so acting, respondent acted properly and responsibly.

3. Answering paragraph “ 27 ”, denies that in attempting to have the Correction Department give consideration to the request of the father of Corey Feldman to have the prisoner -transferred to an institution where he could obtain adequate psychiatric treatment and be cured of his drug addiction, respondent acted in any way improperly.

4. Denies each and every allegation contained in paragraph “28”.

As to Charge VI

1. Respondent denies that he acted inconsistently with his judicial office in the respects set forth in subparagraph “ A ” in this charge.

2. As to paragraph “ 29 ”, respondent denies that he made false statements as to the purpose of loans obtained by him from the Royal National Bank.

3. Respondent denies each and every allegation contained in paragraph “ 30 ” and each of the subdivisions thereof.

4. Denies the conclusory allegation set forth in subparagraph “B ”.

5. Denies that his business activities referred to in paragraph “ 31 ” were incompatible with his .official position and further denies that he ever sat or presided in a case in which he had any interest, directly or indirectly.

6. Denies each and every allegation contained in paragraph “ 32 ”.

As to Charge VII

1. Respondent denies that in his sworn testimony before the Joint Legislative Committee on Crime, before the Grand Jury of the United States District Court for the Southern District of New York, or before counsel designated by this court, he failed to explain his conduct, or was not candid, or that he knowingly gave conflicting or evasive testimony; and he respectfully refers this court to the complete transcript of his testimony on the said occasions.

2. With respect to the allegations set forth in subdivision (d) of paragraph “ 33 ”, respondent denies that he asked, or caused, or influenced, Mr. Elmer Beeves, Chief Probation Officer, to prepare or file any statement pertaining to the resentence of Raymond Freda which was in any way contrary to Mr. Beeves’ actual recollection of the facts.

Motion to Discontinue. Proceedings

By notice of motion dated January 17, 1972 respondent Mitchell D. Schweitzer sought an order discontinuing the proceeding. The notice of motion read:

Please take notice that, upon the annexed affidavit of Myron J. Greene, one of the attorneys for Mitchell D. Schweitzer, the respondent herein, sworn to on the 17th day of January, 1972, and upon all the proceedings heretofore had herein, the undersigned will move this Court, in the Court of Appeals Hall, on the 24th day of January, 1972, at 2:00 o’clock in the afternoon of that day or at such other time and place at the convenience of the Court, for an order (1) discontinuing this proceeding because of the resignation of the respondent herein, or (2) declaring and adjudging that this proceeding is moot because of the resignation of the respondent herein, or (3) terminating this proceeding in such other manner as this Court may deem proper.

In support of the above notice of motion the following affidavit was submitted:

Myron J. Greene, being duly sworn, says:

I am one of the attorneys for Mitchell D. Schweitzer, the respondent in this proceeding.

“By order of this Court dated September 23, 1971, charges were directed to be filed against the respondent herein containing facts ‘ sufficient, if true, to constitute cause ’for respondent’s removal from office. Copy of such charges was served upon the said Mitchell D. Schweitzer on or about September' 24, 1971.

“ On December 10, 1971, copy of respondent’s answer was served upon Hon. Lawrence E. Walsh, Counsel designated by this Court in this proceeding, and the original answer was filed with Hon. Raymond J. Cannon, Clerk of this Court.

“ On December 22, 1971, the resignation of Mitchell D. Schweitzer as a Justice of the Supreme Court in the First Judicial District was filed with Hon. John P. Lomenzo, Setiretary of State, pursuant to the provisions of Public Officers Law § 31. This resignation, by its terms, is effective January 24, 1972. A photocopy of this resignation, showing on its face its receipt and filing with the Secretary of State on December 30, 1971, was filed with the Clerk of this Court on or about January 5, 1972.. A duplicate original of the said resignation was also filed with the Secretary of State, by mail, at his office, at 182 Washington Avenue, Albany, New York 12225. I have in my possession copy of the postal receipt for this resignation by the Secretary of State at his Albany office. A copy of the said resignation was, on December 30, 1971, delivered to Counsel to the Court on the Judiciary.

“In view of the foregoing circumstances, I respectfully ask . that this Court make and enter its order (1) discontinuing this proceeding because of the resignation of the respondent herein, or (2) declaring and adjudging that this proceeding is moot because of the resignation of the respondent herein, or (3) terminating this proceeding in such other manner as this Court may deem proper.”

A further affidavit, dated January 21, 1971, was submitted, reading as follows:

Myron J. Greene, being duly sworn, says:

“ I am the attorney for Mitchell D. Schweitzer, the respondent herein, and I am authorized by the said Mitchell D. Schweitzer to make the following commitments in order to dispose of all the issues which might arguably remain for determination in this proceeding:

“ 1) That he, Mitchell D. Schweitzer, has no intention of seeking public office in the future and will not accept any public office in the future.

“ 2) That he, Mitchell D. Schweitzer, has no intention of seeking and will not seek back pay from the date of the order of this Court, dated September 23,1971.”

Order Closing Proceedings

On January 24, 1971, the Court on the Judiciary meeting at Albany made sua sponte the following order:

It appearing that resignation of respondent as a Justice of the Supreme Court in the First Judicial District was filed, pursuant to section 31 of the Public Officers Law, with the Secretary of State on December 30,1971, to become effective January 24, 1972; and it further appearing that respondent will neither seek nor accept public office in the future nor seek back pay from the date of the order of this court suspending him, without pay, from the exercise of his office,

Now, upon all the proceedings heretofore had and after due deliberation, it is

Ordered that these proceedings be and the same hereby are closed.

The memorandum decision of the court read as follows:

Memorandum. This Court on the Judiciary was convened pursuant to section 22 of article VI of the New York State Constitution to consider whether the respondent should be removed from office as a Justice of the Supreme Court.

Following selection of the members of the court, Counsel to the Court was designated on February 12, 1971, to conduct an appropriate investigation and necessary proceedings. Thereafter, counsel took testimony under oath of over 65 witnesses, comprising some 7,000 pages, examined numerous documents and other exhibits and also obtained the testimony of witnesses before certain grand juries.

On September 23,1971, the court made a preliminary determination that charges proposed by its counsel contained facts sufficient, if true, to constitute cause for Justice Schweitzer’s removal from office. At the same time, the court ordered that the charges be served upon Justice Schweitzer and that Upon such service Justice Schweitzer be suspended from office without pay. The court also set December 13, 1971, as the date for hearings in the case. That date was selected in the light of the constitutional provision that the date of the hearings shall not be less than 60 days after the Governor and the Legislature are apprised of the pendency of the charges.

On September 24, 1971, the charges were duly served upon Justice Schweitzer. Thereafter, between October 1, 1971 and October 7, 1971, Justice Schweitzer applied to the court for reconsideration of the order of suspension without pay and moved for discovery and clarification of the charges. The court decided these motions on November 22, 1971. It granted the application for reconsideration and affirmed its previous determination and also directed its counsel to provide respondent with certain documents and to give particulars as to certain of the charges. On November 24 and 29, 1971, copies of the specified documents were furnished to Justice Schweitzer’s counsel. On December 1, 1971, a Clarification of Charges was served upon Justice Schweitzer’s counsel, and on December 2, 1971, a Supplemental Clarification of Charges was served.

On December 6, 1971, counsel for Justice Schweitzer requested that the hearings, which had been scheduled to begin on December 13, be adjourned until the latter part of January, 1972 because of respondent’s need for additional time to prepare and because of his physical, mental and emotional condition. On December 9, 1971, the court granted the application and adjourned the hearings until January 24,1972. On December 10, 1971, Justice Schweitzer served his Answer to the Charges.

On December 30, 1971, Justice Schweitzer filed his resignation from office with the Secretary of State, to become effective January 24, 1972 and thereafter represented to this court that he would neither seek nor accept public office in the future nor seek back pay from the date .of this court’s order suspending him, without pay, from the exercise of his office. In view of this, the court, on said adjourned date for the hearings — January 24, 1972—met and entered an order closing the proceedings. 
      
       This reference and all subsequent reference to the Canons are references to the Canons of Judicial Ethics adopted by the New York State Bar Association, January 29, 1909, as amended.
     