
    [731 NE2d 120, 709 NYS2d 464]
    In the Matter of J. Kevin Mulroy, a Judge of the Onondaga County Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued February 17, 2000;
    decided April 6, 2000
    
      POINTS OF COUNSEL
    
      Emil M. Rossi, Syracuse, and J. Scott Porter for petitioner.
    I. The Commission’s factual findings that Judge Mulroy engaged in intentional or reckless deception under oath, that he tried to subvert the judicial process to suit his own needs and that he is biased are not supported by the preponderance of the evidence. (Matter of Sims, 61 NY2d 349; Matter of Mogil, 88 NY2d 749; People v Bouton, 50 NY2d 130; People v Van Gaasbeck, 189 NY 408; Matter of Agresta, 64 NY2d 327; People v Zimmer, 51 NY2d 390; Matter of D'Addario, 230 AD2d 509; Matter of Canavan, 183 AD2d 186.) II. Because no Judge has been removed for uttering a racial or ethnic epithet off the Bench, removal is not warranted because Judge Mulroy’s spoken misconduct was sporadic, was private, did not lead to the filing of any complaints, and did not affect in any way his ability to perform his judicial duties fairly and impartially. (Matter of Quinn, 54 NY2d 386; Matter of Kiley, 74 NY2d 364; Matter of Skinner, 91 NY2d 142; Matter of Mazzei, 81 NY2d 568; Matter of Cohen, 74 NY2d 272; Matter of Agresta, 64 NY2d 327; Matter of Wait, 67 NY2d 15; Matter of Shilling, 51 NY2d 397; Matter of Romano, 93 NY2d 161; Matter of Roberts, 91 NY2d 93.)
    
      Gerald Stern, New York City, and John J. Postel for respondent.
    I. Petitioner has engaged in serious misconduct which amply demonstrates his lack of fitness for judicial office. (Matter of Agresta, 64 NY2d 327; Matter of Fabrizio, 65 NY2d 275; Matter of Cerbone, 61 NY2d 93; Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465.) II. The three amici briefs provide no basis to reject the Commission’s determination. (Matter of Agresta, 64 NY2d 327; Matter of Schiff, 83 NY2d 689; Matter of Duckman, 92 NY2d 141.) III. Removal is the appropriate sanction. (Matter of Duckman, 92 NY2d 141; Matter of Reeves, 63 NY2d 105; Matter of Schiff, 83 NY2d 689; Matter of Roberts, 91 NY2d 93; Matter ofAssini, 94 NY2d 26; Matter of Collazo, 91 NY2d 251; Matter of Shilling, 51 NY2d 397; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286.)
    
      Mackenzie, Smith, Lewis, Michell & Hughes, L. L. P., Syracuse (Dennis R. Baldwin of counsel), for County Judges Association of the State of New York, amicus curiae.
    
    I. The position of the Judicial Conduct Commission majority, if adopted, would unduly curtail the discretion of a Trial Judge to participate actively in settlement discussions for the purpose of effecting plea bargains in pending criminal cases. II. The County Judges Association of the State of New York shares the concern expressed in the Mulroy brief and in the briefs of amici over the potential impact of this matter on judicial independence. (Matter of Greenfield, 76 NY2d 293; Matter of Duckman, 92 NY2d 141.)
    
      Hancock & Estabrook, L. L. P., Syracuse (Stewart F. Hancock, Jr., of counsel), for Onondaga County Bar Association Assigned Counsel Program, Inc., amicus curiae.
    
    I. The conduct for which Judge Mulroy has been found unfit to serve consists essentially of his exercise of “poor judgment in making a number of ill-advised and careless comments off the Bench.” Imposing the most severe sanction of removal is plainly disproportionate to the seriousness of such conduct and is an unprecedented action which conflicts with past decisions of the Commission and of this Court. (Matter of Duckman, 92 NY2d 141; Matter of Agresta, 64 NY2d 327; Matter of Schiff, 83 NY2d 689; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465.) II. Given the evidence that some or all of the charges grew out of the District Attorney’s displeasure with one or more of Judge Mulroy’s rulings, sustaining the sanction of removal would seriously erode the confidence of the litigants, their lawyers and the public in the independence of the judiciary in the criminal courts of Onondaga County. (Matter of Duckman, 92 NY2d 141.) III. Taking all of the charges together, the conduct of Judge Mulroy does not warrant removal and accepting the Commission’s recommended sanction would deprive the citizens of Onondaga County of an experienced, competent and fair Judge. (Matter of Steinberg, 51 NY2d 74; Matter of Boulanger, 61 NY2d 89; Matter of Cohen, 74 NY2d 272; Matter of Moynihan, 80 NY2d 322; Matter of Embser, 90 NY2d 711; Matter of Kane, 50 NY2d 360; Matter of Shilling, 51 NY2d 397; Matter of Gelfand, 70 NY2d 211; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465; Matter of Esworthy, 77 NY2d 280.)
    
      Frederick O’Rourke, Syracuse, and Kate Rosenthal for Syracuse Association of Defense Lawyers, amicus curiae.
    
    I. The integrity of the entire criminal justice system is undermined when one arm of the government is allowed to target Judges and subject them to unwarranted criticism of their decisions. II. The sanction of removal is inappropriate and unduly harsh under the facts and circumstances of this case. (Matter of Skinner, 91 NY2d 142; Matter of Duckman, 92 NY2d 141.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the County Court, Onondaga County, asks us to review a determination of the State Commission on Judicial Conduct, sustaining four of seven charges of misconduct and removing him from office (see, NY Const, art VI, § 22; Judiciary Law § 44). The Commission concluded that petitioner failed to maintain the “high standards of conduct” necessary to uphold the integrity of the judiciary (22 NYCRR 100.1; see, Code of Judicial Conduct Canon 1); acted in a manner inconsistent with “the integrity and impartiality of the judiciary” (22 NYCRR 100.2 [A]; see, Code of Judicial Conduct Canon 2 [A]); used his position to advance his own private interests (22 NYCRR 100.2 [C]; see, Code of Judicial Conduct Canon 2 [B]); failed to act in a “dignified and courteous” manner (22 NYCRR 100.3 [B] [3]; see, Code of Judicial Conduct Canon 3 [A] [3]); engaged in conduct manifesting a bias based upon race, gender, age and national origin (22 NYCRR 100.3 [B] [4]; see, Code of Judicial Conduct Canon 1); and initiated an ex parte communication with an attorney for the purpose of resolving a pending case (22 NYCRR 100.3 [B] [6]; see, Code of Judicial Conduct Canon 3 [A] [4]).

After a three-day evidentiary hearing, the Referee found against petitioner on six of the seven charges. The Referee determined that petitioner, while attempting to influence a disposition, made derogatory racial remarks about a crime victim (charge I); displayed intemperate behavior and pressed a prosecutor to offer a plea for petitioner’s own personal convenience (charge II); used vulgar language to characterize a criminal defendant’s statements at sentencing (charge III); made disparaging remarks about Italian-Americans (charge IV); failed to disclose his relationship with a witness appearing before him (charge VI); and testified at a proceeding with reckless disregard for the truth (charge VII).

A majority of the Commission sustained the Referee’s findings with respect to charges I, II, IV and VII, dismissed the remaining charges and determined that petitioner should be removed. While all nine members present sustained charges I and IV, they divided on the remaining charges and on the issue of sanction. Three members found the evidence insufficient to support charge II and three members found the evidence insufficient to support charge VII. Two members voted for censure rather than removal.

Although petitioner admits some wrongdoing, he contends that the Commission failed to sustain its burden of proof on certain charges, and that the sanction of removal is excessive in light of his “12-year unblemished” record. Having reviewed the record de novo, we conclude that the Commissioner’s determination is supported by a preponderance of the evidence, and that, the sanction of removal is appropriate.

With respect to charge I, the evidence establishes that petitioner made derogatory racial remarks about a crime victim in an attempt to induce a plea offer. While attending a charity event, petitioner initiated a conversation with a prosecutor concerning a pending, four-defendant murder case. During that conversation, he urged the prosecutor to “be reasonable” in offering pleas to two of the defendants, and that he should not worry about “giving away” the case because no one cared, since the 67-year-old murder victim was “just some old nigger bitch.” These words, as well as the context in which they were uttered, are indefensible. Petitioner’s racially charged assessment of the case not only devalued the victim’s life but also cast doubt on the integrity and impartiality of the judiciary and, by itself, puts into question petitioner’s fitness to hold judicial office (Matter of Assini, 94 NY2d 26, 29-30).

Although petitioner admits the impropriety of his remarks, he asserts that they were private, isolated statements that were not intended to influence a disposition. He claims that the prosecutor was frustrated because another Judge had suppressed the confession of one of the defendants, and that he was concerned about having to offer a plea to a codefendant in exchange for his cooperation. In an apparent attempt to alleviate the prosecutor’s concerns, petitioner asked him whether, in offering a plea, the District Attorney’s office might be perceived as not caring about the victim. The Referee, however, having had the opportunity to assess petitioner’s responses firsthand, rejected his rationalized version of the remarks and we, like the Commission, uphold that determination (see also, Matter of Schiff, 83 NY2d 689, 692-693; Matter of Esworthy, 77 NY2d 280, 282; Matter of Agresta, 64 NY2d 327, 330; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465, 468-469).

Moreover, petitioner’s disparaging remarks were not isolated. In 1996, petitioner was at a charity dinner when the Oneida County District Attorney, an Italian-American, greeted him and asked him how his reelection campaign was progressing. When petitioner complained about having to run against an opponent, the District Attorney replied, “some of us have to run for office and others get it handed to them on a silver platter.” Petitioner retorted, “You know how you Italian types are with your Mafia connections.” Two people seated at petitioner’s table witnessed the exchange. One, also an Italian-American, testified that she was offended by petitioner’s remarks, while the other, a fellow Judge, admonished petitioner. Petitioner not only concedes the impropriety of his comments but also admits to having made similar ethnically charged comments to his opponent during an election campaign. He maintains, however, that the District Attorney’s implication that he had not “earned” his position as Judge provoked the attack, which was nothing more than private banter. The Commission rightfully rejected petitioner’s excuse, as such language, whether provoked or in jest, manifested an impermissible bias that threatens public confidence in the judiciary (see, Matter of Esworthy, supra, 77 NY2d, at 282; Matter of Agresta, supra, 64 NY2d, at 330).

Charge II arises from petitioner’s equally unseemly conduct during jury deliberations in a rape case. Fearing protracted deliberations, petitioner began to engage in intemperate behavior on the Bench. In an outburst of profanity, petitioner declared that he detested Utica — where the trial was being held — and wished to return to Syracuse because it was “men’s night out.” He accused the prosecutor of “overcharg[ing]” the case and pressed her to offer a plea to a misdemeanor charge so that he could “get out of this fucking black hole of Utica,” threatening to declare a mistrial if she refused. Although petitioner concedes that he failed to act in a dignified and courteous manner, he denies any attempt to coerce a plea offer. Instead, he maintains that his “banter” reflected his concern over a possible error at trial. Once again, however, the Referee rejected petitioner’s defensive version, and we uphold that determination. In any event, the “harm inured when [petitioner] indicated he would use his judicial powers to satisfy a personal [interest], a classic instance in which ‘an appearance of such impropriety is no less to be condemned than is the impropriety itself’ ” (Matter of Schiff, supra, 83 NY2d, at 693, quoting Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462, 466). As a Judge, petitioner was duty-bound to preserve the decorum of the courtroom (see, 22 NYCRR 100.3 [B] [3]) and avoid abusing his judicial authority to advance private interests (see, 22 NYCRR 100.2 [C]). His failure to do so is amply supported by the record.

Finally, as to charge VII, the evidence demonstrates petitioner’s lack of candor during his testimony as a character witness in a criminal trial. Petitioner testified that he had discussed the defendant with two named attorneys when, in fact, he had not.

“[I]n view of the cumulative, serious judicial misconduct established here,” we conclude that removal is an appropriate sanction (Matter of Schiff, supra, 83 NY2d, at 695). Petitioner’s judicial record cannot excuse racial epithets and ethnic slurs in the official and quasi-official context in which they were uttered, attempts to influence dispositions, intemperate behavior and false testimony. Recognizing that Judges “ ‘must be held to a higher standard of conduct than the public at large,’ ” we conclude that petitioner’s pattern of misconduct warrants removal (Matter of Assini, supra, 94 NY2d, at 31, quoting Matter of Collazo, 91 NY2d 251, 255).

Accordingly, the determined sanction of removal should be accepted, without costs, and petitioner should be removed from the office of Judge of the County Court, Onondaga County.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur in Per Curiam opinion.

Determined sanction accepted, etc.  