Opinion
Argued January 15, 1987
Decided February 12, 1987
John P. Rice, III, for petitioner. Petitioner's misconduct does not warrant removal from office. Jean M. Savanyu and Gerald Stern for respondent.
The charges stem from petitioner's failure to make timely deposits in the court account and timely reports and remittances to the State Comptroller over a two-year period after a recent censure for the same misconduct. The State Commission on Judicial Conduct has determined that the appropriate sanction should be removal. It is conceded that these charges are justified and that they require disciplinary action. The only issue, therefore, is the appropriate sanction.
The severity of the sanction imposed for this variety of misconduct depends upon the presence or absence of mitigating and aggravating circumstances. Certainly, in the absence of any mitigating factors, the failure to make timely deposits in the court account and timely reports and remittances to the State might very well lead to removal (Matter of Petrie v State Commn. on Judicial Conduct, 54 N.Y.2d 807; Matter of Cooley, 53 N.Y.2d 64). On the other hand, if a Judge can demonstrate that mitigating circumstances accounted for such failings, such a severe sanction may be unwarranted (id.; Matter of Rogers v State Commn. on Judicial Conduct, 51 N.Y.2d 224).
Failure to heed a prior censure is an aggravating factor militating in favor of the strictest sanction (Matter of Quinn v State Commn. on Judicial Conduct, 54 N.Y.2d 386, 392; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 N.Y.2d 465, 469-470). This failure is especially egregious in this case because the prior censure was based, in part, on the same misconduct. As stated by the Commission, petitioner's repetition of his misconduct "further erodes public trust in his ability to properly perform his judicial duties."
Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion; Judge ALEXANDER taking no part.
Determined sanction accepted, without costs, and Lawrence L. Rater is removed from his office of Justice of the Sherman Town Court, effective immediately.