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Lacking Suspension Power, Conduct Commission Backs Censure of Judge in Drunken-Driving Case
The New York Law Journal by Joel Stashenko - January 3, 2010

ALBANY, NY - A judge who made a U-turn to evade a sobriety checkpoint and then tried to pull strings with the police by identifying himself as a judge should have faced suspension without pay, the state Commission on Judicial Conduct has concluded. However, the commission noted in a decision released Thursday that state law did not give it the power to impose that penalty against Albany County Family Court Judge Gerard E. Maney. Instead, it voted, 8-3, for a recommendation of censure, which has been described by the commission as "a severe public reprimand" but carries no other penalty. "Were the sanction of suspension from judicial office without pay available to us, we would impose it in this case to reflect the seriousness of respondent's misconduct in view of the aggravating factors described herein," the commission said. "Absent that alternative, we have concluded that respondent should be censured. Such a result not only underscores the seriousness of such misconduct, but also serves as a reminder to respondent and to the public that judges at all times are held to the highest standards of conduct, even off the bench." But the three dissenters argued that censure was "too lenient" in light of the "egregious misconduct" that demonstrated that the respondent "is not fit to continue to serve as a judge and should be removed from office"—the only available penalty harsher than censure. Judge Maney has been on the Family Court bench since 1981 and is also an acting Supreme Court justice. He is the Family Court supervisory judge for the Fifth Judicial District. According to the commission and police in the Albany suburb of Green Island, Judge Maney made an illegal U-turn in attempting to get away from a line of vehicles waiting at a sobriety checkpoint on June 18, 2009. He drove for about a half a mile before being pulled over by police. In addition to identifying himself as a judge and asking for "professional courtesy," Judge Maney rinsed his mouth out with mouthwash while in his car in an attempt to mask his intake of alcohol and tried to call the district attorney's office while waiting to be processed at the police station.

After delaying a blood alcohol test for about an hour, Judge Maney registered a 0.07 percent blood alcohol content and was charged with driving while intoxicated, driving while ability impaired, failure to yield the right of way to an emergency vehicle and making an illegal U-turn. The legal blood alcohol content limit for driving while ability impaired is 0.04 to 0.07 percent. Judge Maney also was charged with the more serious offense of driving while intoxicated, which begins at 0.08 percent, because of his delay in taking the blood alcohol test. "By engaging in such conduct, respondent undermined his effectiveness as a judge and brought the judiciary as a whole into disrepute," the commission held. "Moreover, as shown by this record, respondent's misconduct is exacerbated significantly by numerous aggravating circumstances, including his repeated references to his judicial status during his arrest, his requests to the arresting officers for 'professional courtesy' and 'consideration,' and his calculated attempts to avoid the full consequences of his wrongdoing." The majority cited 10 cases of discipline for judges' alcohol-related offenses, five resulting in censure and five in admonition. In the 11th case, a removal recommendation for two driving-while-intoxicated convictions was reduced to censure in light of the judge's impending retirement. The commission noted that in such instances, it considers mitigating and/or aggravating factors, including the level of intoxication, whether the judge caused an accident or injury, whether the conduct was an isolated incident or part of a pattern, the judge's conduct during arrest and the need or willingness of the judge to seek treatment. Here, the majority found the judge's attempt to seek "favorable treatment" to be "especially disturbing." However, it said that it weighed his conduct against "this isolated episode of behavior, respondent's 19 years as a judge, his acknowledgement of misconduct and his recognition that a severe sanction is appropriate." Judge Maney did not contest the sanction of censure, said his attorney, Joseph M. McCoy of Rensselaer. "We decided not to challenge the decision, though he doesn't agree 100 percent with it," Mr. McCoy said in an interview Thursday. "The judge has taken responsibility from the start." Mr. McCoy added that there was no treatment component to the commission's decision and that an evaluation of the judge following his conviction showed he did not need it. Commissioners Thomas A. Klonick, Stephen R. Coffey, Rolando T. Acosta, Joel Cohen, Paul Harding, Nina M. Moore, Karen K. Peters and Terry Jane Ruderman agreed with the censure recommendation.

'The Wrong Lessons'

Joseph W. Belluck, in a dissent joined by Richard D. Emery and Elizabeth B. Hubbard, said Judge Maney's actions "more than" warrant his removal from the bench. That is especially true, Mr. Belluck wrote, given that Judge Maney also presides over a drug treatment court in which drunken-driving offenders are educated about the dangers they pose. "Unfortunately, the lesson Judge Maney apparently took from all of this education was to avoid checkpoints, to keep mouthwash in his car, and, when caught, to identify himself as a judge at the earliest opportunity and thereafter make frequent references to his judicial status, to repeatedly ask the police for 'professional courtesy' and 'consideration,' and to delay taking a breathalyzer test as long as possible," Mr. Belluck wrote. "Those were the wrong lessons, and his attempts to avoid getting caught and held accountable cannot be condoned." David Bookstaver, a spokesman for the state Unified Court System, could not say Thursday whether Judge Maney's status as supervisory judge over Family Courts in the Fifth Judicial District would be affected by the commission's decision. The commission does not have the power to affect the administrative or supervisory positions that judges might have in the court system. Judge Maney ultimately pleaded guilty in Green Island Town Court to a charge of driving while ability impaired, paid a $300 fine and a $260 surcharge, had his license suspended for 90 days, and attended a victim impact panel and a drunken-drivers program. Joel Stashenko can be contacted at jstashenko@alm.com.

Background Maney Stories:

NY Family Court Judge Pleads Guilty - Maney Admits DWAI Charge

Update on New York Judge Charged at DWI Checkpoint - A Rinse Before a No To Test

New York Judge Charged at DWI Checkpoint - Albany Family Court Judge Charged with DWAI

Background Stories On Corrupt Robert Tembeckjian And His Ring of Thugs:

Corrupt Tembeckjian Continues Dirty Tricks

Corrupt Tembeckjian's 'Nickel-and-Diming' to Protect Friend's Big Crimes

Corrupt Court System "Loses One," But Sends Clear Message

More on Tembeckjian's Thuggery

Tembeckjian 'Lie-of-the-Day' - No Arbitrary Judicial Discipline

Fallout from Corrupt Commission on Judicial Conduct Continues

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

Tembeckjian Angered Over Thousands, but $40 Million Fraud OK

Tembeckjian’s Crimes - Robert Tembeckjian, $40,000,000.00 and Misprison of Felony