2023 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.