Certainty: These Judges Can't Get Due Process from Tembeckjian Thugs

Sloppiness or Dishonesty? Judges Probe Removal Issues
The New York Law Journal by Joel Stashenko - September 10, 2009

ALBANY, NY - An attorney for the Commission on Judicial Conduct faced close questioning yesterday from members of the Court of Appeals on whether the tangled finances and incomplete financial reporting of two state judges who are also brothers warrants their removal from the bench. Supreme Court Justice Joseph S. Alessandro and Bronx Civil Court Judge Francis M. Alessandro engaged in dishonesty that should forfeit their right to remain on their respective benches, commission attorney Edward Lindner insisted to the Court of Appeals. "You have in these two cases an extended and intertwined pattern of deliberately dishonest conduct that renders both of these petitioners unfit for public office," Mr. Lindner said. But the judges seemed through their questioning to suggest that the often confusing chain of events that began in 2003 when Joseph Alessandro borrowed $250,000 from his then-campaign manager for Westchester County Court left the question of whether either brother committed deliberate misconduct less clear than the commission had concluded.

"You're painting a picture of this very knowledgeable, careful, precise lawyer who did everything right," Judge Robert S. Smith told Robert P. Roche, attorney for Francis Alessandro. "Isn't the record also open to the interpretation that your client was sloppy, but not dishonest?" Mr. Roche, noting that Francis was in the Albany courtroom yesterday, declined to answer Judge Smith's question. "Your honor, I defer to you and suggest that you have said it," Mr. Roche replied. Joseph Alessandro was also in court. Judge Eugene F. Pigott Jr. wondered how Joseph could have filed such incomplete financial disclosure forms to the Office of Court Administration that failed to list all of the judge's properties, a charge that also formed the basis of the commission's decision to recommend his removal. "The disclosure statement, to be kind, looked like it was, I don't want to say it was filled out by a fourth-grader, but I mean it was really, really sloppy," Judge Pigott told Joseph's attorney, Paul DerOhannesian II. "I don't think I'd let something like that out of my office and I don't think most judges would." Mr. DerOhannesian said Joseph did correct omissions on his disclosure forms when the errors were brought to his attention.

"The history of commission determinations is that a prompt correction when brought to someone's attention is not something that justifies removal," Mr. DerOhannesian said. "We are not saying that it's proper. We don't ask the court to say that it's proper." He said a lesser sanction is warranted for his client than removal, which the attorney referred to as a "judicial beheading." The Commission on Judicial Conduct decided earlier this year that both Alessandros have "irretrievably" lost the public's trust as judges because of deceptive financial dealings and misstatements about transactions on disclosure forms and loan applications (NYLJ, Feb. 24). "In its totality, respondent's conduct demonstrates 'a pattern of injudicious behavior and inappropriate actions which cannot be viewed as acceptable conduct by one holding judicial office,'" the commission held in Francis' determination. It used similar words to describe the impact of Joseph's filing of "incomplete, inaccurate information" on disclosure and loan applications. Both men's problems largely revolved around a 30-day, $250,000 loan Joseph took out in the closing stages of his 2003 run for Westchester County judge from the manager and treasurer of his campaign.

Both brothers initially co-signed for the loan, but Joseph said he solely signed a second loan for 15 years just before the 2003 election because he realized that if the loan was not repaid within 30 days of election day, it would be treated as a contribution far in excess of legal limits. The second loan agreement did not involve Francis, who said he was assured by his brother that the obligation would be taken care of. Mr. Lindner conceded yesterday that Francis' conduct was "certainly...less egregious" than his brother's. But Mr. Lindner said the commission nonetheless determined that it warranted removal. The campaign manager, Barbara Battista, ultimately filed a civil suit naming both Alessandros seeking repayment of the loan. Joseph settled with her for $273,000 in 2005. Both Alessandros argued in briefs before the Court that the loan, and their failures to fully detail it and other financial dealings on financial forms, occurred during a difficult period personally in which their parents died and Francis' wife began to exhibit early stages of Alzheimer's disease (NYLJ, July 9). Joseph, 64, was a Westchester County judge from 2004 to 2005. He was elected to Supreme Court in the Ninth Judicial District, covering Westchester, Putnam, Dutchess, Orange and Rockland counties, beginning in 2006. He had been sitting in Orange County. Francis, 70, has been a Civil Court judge in the Bronx since 1990. In a brief arguing against his removal, Mr. Roche noted that his client will be forced to step down at the end of this year due to mandatory retirement and that his judicial legacy should not be defined by removal.

The commission voted 9-0 to recommend the removal of Joseph and 8-1 for Francis' removal. The lone dissenter in Francis' case, Elizabeth B. Hubbard, argued that censure was the proper punishment and that Francis depended on the word of his brother when he was assured that Joseph would take care of the campaign loan obligation. Both judges have been suspended with pay since appealing the commission's decision. Chief Judge Jonathan Lippman did not take part in yesterday's arguments. Under a deal worked out in 2005 by political leaders in the Ninth Judicial District, Joseph, a Republican, won the cross endorsement of Democratic leaders while Judge Lippman, a Democrat, received the endorsement of Republican leaders to a second Supreme Court seat open that year in the district. The cross-endorsement deal held even though Joseph was found not qualified for the seat by the Westchester County Bar Association after he failed to appear before the group for screening (NYLJ, Sept. 28, 2005). The Court is expected to rule by the end of October. Since 1978, the Court of Appeals has upheld 65 removal recommendations by the commission and in nine other instances reduced removals to lesser sanctions. None has managed to escape sanctions entirely. Joel.Stashenko@incisivemedia.com