N.Y. Judiciary Law § 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.