NY Jud L § 44 (2021)
2021 New York Laws JUD - Judiciary Article 2-A - State Commission on Judicial Conduct 44 - Complaint; Investigation; Hearing and Disposition.

§  44.  Complaint;  investigation;  hearing  and  disposition.  1. The commission shall receive, initiate, investigate and hear complaints with respect  to  the  conduct,  qualifications,  fitness  to   perform,   or performance of official duties of any judge, and, in accordance with the provisions  of subdivision d of section twenty-two of article six of the constitution, may determine that a  judge  be  admonished,  censured  or removed from office for cause, including, but not limited to, misconduct in   office,   persistent   failure  to  perform  his  duties,  habitual intemperance and conduct, on  or  off  the  bench,  prejudicial  to  the administration  of  justice,  or  that  a judge be retired for mental or physical disability preventing the proper performance  of  his  judicial duties.  A  complaint  shall be in writing and signed by the complainant and, if directed by the commission, shall be verified. Upon receipt of a complaint (a) the commission  shall  conduct  an  investigation  of  the complaint;  or  (b)  the  commission  may  dismiss  the  complaint if it determines that the complaint on its face lacks merit. If the  complaint is  dismissed,  the  commission  shall so notify the complainant. If the commission  shall  have  notified  the  judge  of  the  complaint,   the commission shall also notify the judge of such dismissal.   2. The commission may, on its own motion, initiate an investigation of a  judge with respect to his qualifications, conduct, fitness to perform or the performance of his official duties. Prior to initiating any  such investigation, the commission shall file as part of its record a written complaint,   signed  by  the  administrator  of  the  commission,  which complaint shall serve as the basis for such investigation.   3. In the course of an investigation, the commission may  require  the appearance  of  the  judge  involved before it, in which event the judge shall  be  notified  in  writing  of  his  required  appearance,  either personally,  at  least  three  days  prior  to  such  appearance,  or by certified mail, return receipt requested, at least five  days  prior  to such  appearance. In either case a copy of the complaint shall be served upon the judge at the time of such notification. The  judge  shall  have the  right to be represented by counsel during any and all stages of the investigation in  which  his  appearance  is  required  and  to  present evidentiary  data  and  material relevant to the complaint. A transcript shall be made  and  kept  with  respect  to  all  proceedings  at  which testimony  or  statements  under  oath  of any party or witness shall be taken, and the  transcript  of  the  judge's  testimony  shall  be  made available   to   the  judge  without  cost.  Such  transcript  shall  be confidential except as otherwise permitted by section forty-five of this article.   4. If in the course of an  investigation,  the  commission  determines that  a  hearing  is  warranted  it  shall  direct that a formal written complaint signed and verified by the administrator be drawn  and  served upon  the judge involved, either personally or by certified mail, return receipt requested. The judge shall file a  written  answer  to  the  the complaint  with  the  commission within twenty days of such service. If, upon receipt of the answer, or upon expiration of the  time  to  answer, the  commission  shall direct that a hearing be held with respect to the complaint, the judge involved shall be notified in writing of  the  date of the hearing either personally, at least twenty days prior thereto, or by  certified  mail,  return receipt requested, at least twenty-two days prior thereto. Upon the written request of  the  judge,  the  commission shall,  at  least  five  days prior to the hearing or any adjourned date thereof, make  available  to  the  judge  without  cost  copies  of  all documents  which  the  commission intends to present at such hearing and any written statements made by witnesses who  will  be  called  to  give testimony  by  the  commission.  The commission shall, in any case, make  available to the judge at least five days prior to the  hearing  or  any adjourned  date  thereof  any  exculpatory evidentiary data and material relevant to the complaint. The  failure  of  the  commission  to  timely furnish  any  documents,  statements and/or exculpatory evidentiary data and material provided for herein shall not affect the  validity  of  any proceedings  before  the  commission  provided  that such failure is not substantially prejudicial to the judge. The complainant may be  notified of  the  hearing  and  unless he shall be subpoenaed as a witness by the judge, his presence thereat  shall  be  within  the  discretion  of  the commission.  The  hearing  shall not be public unless the judge involved shall so demand in writing.  At the hearing the commission may take  the testimony  of  witnesses  and  receive  evidentiary  data  and  material relevant to the  complaint.  The  judge  shall  have  the  right  to  be represented  by  counsel  during  any  and all stages of the hearing and shall have the right to call and  cross-examine  witnesses  and  present evidentiary  data  and material relevant to the complaint.  A transcript of the proceedings and of the testimony  of  witnesses  at  the  hearing shall be taken and kept with the records of the commission.   5.  Subject  to  the approval of the commission, the administrator and the judge may agree on a statement of facts and may stipulate in writing that the hearing shall be waived. In such a case, the  commission  shall make  its  determination  upon the pleadings and the agreed statement of facts.   6. If, after a formal written complaint has been  served  pursuant  to subdivision  four  of  this  section, or during the course of or after a hearing, the commission determines that no further action is  necessary, the complaint shall be dismissed and the complainant and the judge shall be so notified in writing.   7.  After  a  hearing,  the  commission  may determine that a judge be admonished, censured, removed or retired. The commission shall  transmit its  written  determination,  together  with  its  findings  of fact and conclusions of law and the record of  the  proceedings  upon  which  its determination  is  based, to the chief judge of the court of appeals who shall cause a  copy  thereof  to  be  served  either  personally  or  by certified  mail,  return  receipt requested, on the judge involved. Upon completion of service, the determination of the commission, its findings and conclusions and the record of its proceedings shall be  made  public and  shall  be  made  available  for  public inspection at the principal office of the commission and at the office of the clerk of the court  of appeals.  The  judge involved may either accept the determination of the commission or make written request to the  chief  judge,  within  thirty days  after  receipt  of such determination, for a review thereof by the court of appeals.   If the commission has determined  that  a  judge  be admonished  or  censured, and if the judge accepts such determination or fails to  request  a  review  thereof  by  the  court  of  appeals,  the commission  shall  thereupon  admonish or censure him in accordance with its findings. If the commission has determined that a judge  be  removed or  retired,  and  if  the  judge accepts such determination or fails to request a review thereof by the court of appeals, the court  of  appeals shall  thereupon  order his removal or retirement in accordance with the findings of the commission.   8. (a) The court of appeals  may  suspend  a  judge  or  justice  from exercising   the   powers  of  his  office  while  there  is  pending  a determination by the commission for his removal or retirement, or  while he  is  charged  in  this  state  with  a  felony by an indictment or an information filed  pursuant  to  section  six  of  article  one  of  the constitution.  The suspension shall continue upon conviction and, if the conviction  becomes  final,  he  shall  be  removed  from  office.   The  suspension  shall  be  terminated  upon  reversal  of the conviction and dismissal of the accusatory instrument.  (b)  Upon  the  recommendation of the commission or on its own motion, the court may suspend a judge or justice from office when he is  charged with a crime punishable as a felony under the laws of this state, or any other  crime  which  involves  moral  turpitude.  The  suspension  shall continue upon conviction and, if the conviction becomes final, he  shall be removed from office. The suspension shall be terminated upon reversal of the conviction and dismissal of the accusatory instrument.  (c) A judge or justice who is suspended from office by the court shall receive his judicial salary during such period of suspension, unless the court  directs  otherwise.  If  the  court  has  so  directed  and  such suspension is thereafter terminated, the court may direct that he  shall be paid his salary for such period of suspension.  (d)  Nothing  in  this  subdivision  shall prevent the commission from determining that a judge or justice be admonished, censured, removed, or retired pursuant to subdivision seven of this section.   9. In its review of a determination of the commission,  the  court  of appeals  shall  review the commission's findings of fact and conclusions of law on the record of the  proceedings  upon  which  the  commission's determination  was  based.    After such review, the court may accept or reject the determined sanction; impose a  different  sanction  including admonition,  censure, removal or retirement for the reasons set forth in subdivision one of this section; or impose no sanction.   10. If during the course of or after an investigation or hearing,  the commission  determines  that  the  complaint  or  any allegation thereof warrants action,  other  than  in  accordance  with  the  provisions  of subdivisions  seven and eight of this section, within the powers of: (a) a person having administrative jurisdiction over the judge  involved  in the complaint or; (b) an appellate division of the supreme court; or (c) a  presiding  justice  of an appellate division of the supreme court; or (d) the chief judge of the court of appeals; or (e) the governor; or (f) an applicable district attorney's office or  other  prosecuting  agency, the commission shall refer such complaint or the appropriate allegations thereof  and  any  evidence  or material related thereto to such person, agency or court for such action as may be deemed proper or necessary.   11. The commission shall notify the complainant of its disposition  of the complaint.