Opinion
Decided January 11, 1980
MEMORANDUM.
Pursuant to article VI (§ 22, subd f) of the New York Constitution and section 44 (subd 8, par [b]) of the Judiciary Law, this court initiated on December 19, 1979 a review, on its own motion, of whether Family Court Judge RAYMOND CORNELIUS should be suspended in consequence of a Federal indictment against him filed December 18, 1979. Judge CORNELIUS responded to the court in writing. The New York State Commission on Judicial Conduct, which was given notice and opportunity to make its views known to the court, has not responded.
In the exercise of our discretion at this preliminary phase of this matter, we conclude that it is inappropriate in these circumstances to impose the severe sanction of suspension from judicial duties merely upon the filing of this indictment. Further, it would be inappropriate and perhaps prejudicial and unfair to both Judge CORNELIUS and the Federal prosecution for interpretations or inferences to be drawn from the action of this court concerning this matter pending in Federal court. Thus, the majority refrains, for the most sensitive and judicious reasons, from responding with greater specificity to the dissenting opinion. This is, after all, a preliminary, temporary disposition, not unlike a bail or preliminary injunction application.
Finally, we note that even the dissenters vote for Judge CORNELIUS to continue receiving his judicial salary during the period of the suspension they would impose.
On balance, the public is better served in this matter by Judge CORNELIUS' continued judicial service while he receives his salary. This is not to say that in an appropriate case that we would hesitate to suspend a Judge pursuant to article VI (§ 22, subd f) of the New York Constitution and section 44 (subd 8, par [b]) of the Judiciary Law.
We cannot agree with the determination made by the majority and are obliged to express our dissent.
The decision of this court must be based exclusively on the facial charges alleged in the indictment, to wit, that Judge CORNELIUS conspired with others to "suborn perjury, fabricate evidence and materials and introduce at State proceedings knowingly false, misleading and perjured testimony". The Judge is not charged with having engineered the subornation or fabrication of testimony, but rather, as prosecutor, with having offered such testimony in evidence after having been alerted by an investigator in the prosecutor's office, the Federal Bureau of Investigation and others to its origin and falsity.
We recognize that the time-honored and salutary presumption of innocence obtains as far as the individual charged is concerned until there has been a conviction. We are similarly fully conscious that the charges now leveled at the Judge may be dismissed before trial or on trial prove to be wholly unsubstantiated. Nonetheless, we cannot ignore or disregard the fact that a Federal Grand Jury on presentation of the United States Attorney has returned an indictment. In this circumstance, in our opinion, assurance in the public interest that the judiciary shall be beyond even the appearance of impropriety requires the subordination of the personal interest of any individual Judge. Distressing as that may prove to be, upholding the integrity of the Bench permits no less.
Because, however, at this stage there have been charges only and neither their proof nor possible explanation has been subjected to examination, we would be opposed to any cessation of judicial compensation. To us suspension from exercising the powers of his office would not be predicated on any prediction or estimate of the Judge's individual guilt but rather would be dictated by overriding considerations of demanding public interest. In our view, therefore, the imposition of any penalty at this time would be inappropriate. That Judge CORNELIUS would be receiving full compensation during a period of perhaps several months when he would be rendering no judicial service should not be considered an unsuitable use of public funds; it would rather be the legitimate price the public must pay if it is to be assured that a member of the judiciary shall not be permitted to continue to exercise the powers of his office when charges of the nature here involved are filed against him, even though there has yet been no substantiation of them.
Chief Judge COOKE and Judges GABRIELLI, WACHTLER, FUCHSBERG and MEYER concur in memorandum; Judges JASEN and JONES dissent and vote for suspension in another memorandum.
On the court's own motion, it is determined that Honorable RAYMOND E. CORNELIUS not be suspended from his office of Judge of the Family Court of the State of New York, Monroe County.