New York Law Review

Tag: ex parte communication

  • In the Matter of Leroy A. VonderHeide, 72 N.Y.2d 658 (1988): Judicial Misconduct and Removal of a Judge

    In the Matter of Leroy A. VonderHeide, 72 N.Y.2d 658 (1988)

    Judges are held to high ethical standards, and ignorance of judicial rules or a pattern of injudicious behavior can warrant removal from office to safeguard the integrity of the bench.

    Summary

    A Town Court Justice in Northampton was found guilty of multiple counts of misconduct, including ex parte communications, intemperate behavior, and failure to disqualify himself from cases where he was a witness. The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction. The Court of Appeals upheld the Commission’s decision, emphasizing that the purpose of judicial disciplinary proceedings is to protect the administration of justice from unfit incumbents, not to punish the judge. The court found a pattern of misconduct demonstrating the judge’s unfitness for judicial office.

    Facts

    The Town Court Justice was found to have:

    1. Routinely sought out and interviewed witnesses outside of court, making judgments based on unsworn ex parte communications.
    2. Berated a teenager for allegedly carrying an open container, threatening harsh treatment if he appeared in court.
    3. Arraigned, accepted a guilty plea, and sentenced a complaining witness in an unrelated matter without filing an accusatory instrument or informing the person of the charges.
    4. Failed to disqualify himself from two criminal cases where he was a witness.
    5. Required a teenager to sign a statement implicating a third party in an alleged crime as a condition of accepting a guilty plea.

    Procedural History

    The New York State Commission on Judicial Conduct sustained multiple charges of misconduct against the Town Court Justice. The Commission determined that removal from office was the appropriate sanction. The Town Court Justice sought review of the Commission’s decision in the New York Court of Appeals.

    Issue(s)

    1. Whether the evidence was sufficient to support the charges of misconduct, specifically the charge concerning verbal abuse of a teenager and the charges concerning ex parte communications.
    2. Whether the charges should be dismissed due to the judge’s status as a nonlawyer and lack of training.
    3. Whether the sanction of removal was too severe.

    Holding

    1. No, because the basis for the charge was intemperate behavior, not public intoxication; and the charges concerning ex parte communications were sufficiently specific.
    2. No, because ignorance and lack of competence do not excuse violations of ethical standards.
    3. No, because the charges, taken collectively, demonstrated that the judge posed a threat to the proper administration of justice and was not fit to be a judge.

    Court’s Reasoning

    The Court of Appeals upheld the Commission’s findings, stating that the evidence substantiated the charges against the judge. The court rejected the argument that the judge’s lack of legal training excused his misconduct, citing Matter of Fabrizio, 65 NY2d 275, 277, which establishes that judges have an obligation to learn about and obey the Rules Governing Judicial Conduct. The court emphasized that the judge’s actions were not mere occasional lapses in judgment but demonstrated a pattern of injudicious behavior. Regarding the sanction, the court stated: “that the purpose of judicial disciplinary proceedings is ‘not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents’ ” (Matter of Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [lll]). The Court agreed with the Commission that the judge’s conduct demonstrated he was a threat to the proper administration of justice and unfit to be a judge.

  • Goldfinger v. Lisker, 68 N.Y.2d 225 (1986): Vacating Arbitration Awards for Ex Parte Communication

    Goldfinger v. Lisker, 68 N.Y.2d 225 (1986)

    Private communication between an arbitrator and one party-litigant, concerning the credibility of the party and the validity of the disputed amount, without the other party’s knowledge or consent, constitutes misconduct sufficient to vacate the arbitration award.

    Summary

    This case concerns a dispute between two diamond dealers, Goldfinger and Lisker, arbitrated within the Diamond Dealers Club (DDC). After the arbitrators awarded Goldfinger $162,976, Lisker sought to vacate the award, alleging arbitrator misconduct due to private communications between the chairman of the arbitration panel and Goldfinger regarding settlement offers and credibility. The New York Court of Appeals reversed the lower courts, holding that such ex parte communication constituted misconduct warranting vacatur of the award, emphasizing the need to safeguard the integrity of the arbitration process.

    Facts

    Goldfinger and Lisker, both members of the DDC, had a dispute over diamond transactions. Goldfinger claimed Lisker owed him $500,000 from a joint venture. Lisker denied any obligation. During arbitration, Goldfinger told Horowitz, one of Lisker’s business associates, that Lisker could have settled for $70,000 but would now pay more. Horowitz told Weinman, the arbitration panel chairman, about this conversation. Weinman then initiated a private conversation with Goldfinger to assess Goldfinger’s credibility and the validity of his claim, without Lisker’s knowledge or consent.

    Procedural History

    Goldfinger initiated a proceeding in Supreme Court to confirm the arbitration award. Lisker cross-moved to vacate, alleging arbitrator misconduct. Special Term referred the matter to a Referee, who recommended confirming the award and denying the cross-motion. Special Term adopted the Referee’s findings. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether private communications between an arbitrator and one party-litigant, regarding the credibility of the party and the validity of the amount in dispute, without the knowledge or consent of the other party-litigant, constitutes misconduct sufficient to warrant vacating the arbitration award?

    Holding

    Yes, because such private communication creates an appearance of impropriety and denies the other party the opportunity to respond, thus prejudicing their rights and undermining the integrity of the arbitration process.

    Court’s Reasoning

    The Court of Appeals emphasized that while arbitration provides a less formal alternative to litigation, the integrity of the process must be zealously safeguarded. Arbitrators must act fairly and impartially, affording parties the opportunity to present evidence and cross-examine witnesses. The court distinguished this case from permissible independent investigations, noting that Weinman’s private communication with Goldfinger was not about “facts of trifling importance.” The court stated: “Weinman’s communication with Goldfinger following the conversation with Horowitz was deliberate in nature and designed clearly to enable Weinman to resolve in his own mind any doubt he may have had as to Goldfinger’s credibility or the validity of the claim itself. In so contacting Goldfinger, Weinman denied Lisker the opportunity to respond and created the appearance of impropriety if not actual partiality. Such actions amounted to misconduct which prejudiced Lisker’s rights under CPLR 7506 (a), (b) and (c).” The court rejected the argument that the DDC bylaws authorized such communications, finding that the bylaws did not sanction private, credibility-testing conversations. The Court emphasized the importance of safeguarding the arbitration process, reversing the lower court decisions and vacating the award.

  • People v. Colascione, 22 N.Y.2d 65 (1968): Limits on Ex Parte Judicial Inquiries and Admissibility of Hearsay Evidence

    People v. Colascione, 22 N.Y.2d 65 (1968)

    A criminal defendant is entitled to a new trial when the trial court conducts an ex parte inquiry of the jury regarding potential prejudice, admits prejudicial hearsay evidence, and improperly instructs the jury regarding the use of a co-defendant’s guilty plea.

    Summary

    Defendants were convicted of conspiracy to commit extortion and fix prices, and related charges, stemming from a scheme to dynamite barber shops to coerce barbers into joining a guild. The New York Court of Appeals reversed the convictions and ordered a new trial based on three significant errors: (1) the trial judge’s ex parte inquiry to the jury about a potentially prejudicial statement, (2) the admission of hearsay evidence that reconstructed the alleged conspiracy, and (3) the improper admission of a co-defendant’s guilty plea with instructions that allowed the jury to consider it as evidence against the other defendants if they found a conspiracy existed. These errors undermined the defendants’ right to a fair trial.

    Facts

    The defendants were accused of conspiring to dynamite barber shops in Nassau County to force dissenting barbers to join a guild that aimed to fix minimum prices. The prosecution alleged that the defendants recruited individuals from Michigan to carry out the actual dynamiting. Key evidence included the testimony of Bob Meyer, identified as a “confederate” and “key witness.” During the trial, questions arose about Meyer’s accommodations during the trial, leading to a claim that the prosecution made a prejudicial remark in the jury’s presence regarding protection for Meyer’s family.

    Procedural History

    The defendants were convicted after a lengthy trial. They appealed, citing numerous legal errors. The appellate division affirmed. The New York Court of Appeals granted leave to appeal and reversed the convictions, ordering a new trial.

    Issue(s)

    1. Whether an ex parte inquiry by the judge to the jury concerning a purported prejudicial statement made in their presence warrants a new trial.
    2. Whether the admission of hearsay evidence on substantial issues in the case warrants a new trial.
    3. Whether the acceptance of proof of a guilty plea by a co-defendant, under instructions to the jury that permitted an inference the plea could be binding on appellants as co-conspirators, warrants a new trial.

    Holding

    1. Yes, because the ex parte nature of the inquiry and the lack of a proper record created an unacceptable risk of prejudice.
    2. Yes, because the hearsay evidence was prejudicial and bolstered the testimony of an accomplice.
    3. Yes, because the instructions given to the jury were prejudicial and did not adequately limit the use of the co-defendant’s guilty plea.

    Court’s Reasoning

    The Court of Appeals found that the trial judge’s ex parte inquiry to the jury, conducted through the court clerk without a proper record, was a departure from traditional procedure and created an unacceptable risk of prejudice. The court emphasized the importance of an adversary inquiry, under oath, to determine whether the jury heard the potentially prejudicial statement. The court cited cases such as Maurer v. People, 43 N.Y. 1 (1870) and People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550 (1961), highlighting the strict adherence to protecting a defendant’s rights during jury communications.

    The Court also held that the admission of hearsay evidence from a special agent, who reconstructed the conspiracy based on information from Meyer, was prejudicial. The court emphasized that this narrative, offered in a form that could be taken by the jury as factual, improperly bolstered the accomplice’s testimony. The Court cited Waldele v. New York Cent. & H. R. R. R. Co., 95 N.Y. 274; People v. Seppi, 221 N.Y. 62; People v. Trowbridge, 305 N.Y. 471; People v. Cioffi, 1 N.Y.2d 70. The Court stated that: “Foy was reflecting to the court and the jury what his senses perceived at the time he had tke conversation with Assistant District Attorney Levy ”. Stich a sense perception was not a material fact in issue on the guilt of defendants and thus the reception of the hearsay was erroneous”. The Court found similarly prejudicial a conversation between Arcuri and Vito as it pertained to the Hagewoods. The court stated “This called for hearsay and it was prejudicial to the objecting defendants”.

    Finally, the Court found that the trial court’s instructions regarding the co-defendant’s guilty plea were insufficient to prevent prejudice. The court noted that while the plea could be admissible for assessing the witness’s credibility, it had no probative value as to the guilt of the other defendants. The court emphasized that the trial judge’s instruction left it open for the jury to consider Fusco’s plea “binding on” the appellants. The Court stated “A juror would reasonably take this to mean that if he found a conspiracy to have existed he might then, if ‘so satisfied’, find Fusco’s plea ‘binding on ‘ the appellants”.