Corrupt Tembeckjian's "Ethics" Panel Shows More Uselessness

Panel Recommends Censure for Two Town Justices
The New York Law Journal by Joel Stashenko  -  February 16, 2012

Two town justices should be censured, one for issuing orders of protection against defendants that had no basis in law and the other for drinking and driving, the state Commission on Judicial Conduct recommended in unrelated matters on Feb. 15. The commission said that Justice Robin J. Curtis of Lyme Town Court in Jefferson County and Robert P. Apple, justice of the Pawling village court in Dutchess County, should face the public reprimand of censure. Mr. Curtis was cited for issuing orders of protection against two defendants who had no criminal actions pending against them. Mr. Apple pleaded guilty to driving while intoxicated after getting into a November 2009 accident. Mr. Curtis is not an attorney. Mr. Apple is a lawyer who has been in private practice for more than 20 years. The recommendations, both unanimous, go to the Court of Appeals for a final disposition. If the parties do not oppose the recommendations, they will take force in 30 days. In each case, the commission said the justices entered into stipulations agreeing to the accusations of wrongdoing against them and to their censures.

In The Matter of Justice Robin J. Curtis

STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
ROBIN J. CURTIS, a Justice of the Lylne Town Court, Jefferson County.
THE COMMISSION:
Honorable Tholnas A. Klonick, Chair Honorable Terry Jane Rudennan, Vice Chair Honorable Rolando T. Acosta
Joseph W. Belluck, Esq.
Joel Cohen, Esq.
Richard D. Emery, Esq.
Paul B. Harding, Esq.
Nina M. Moore
Honorable Karen K. Peters Richard A. Stoloff, Esq.

DETERMINATION
APPEARANCES: Robert H. Telnbeckjian (David M. Duguay, Of Counsel) for the Commission Capone Law Finn LLP (by Andrew N. Capone) for the Respondent

The respondent, Robin J. Curtis, a Justice of the Lyme Town Court, Jefferson County, was served with a Fornal Written Complaint dated October 19, 2011, containing two charges. The Formal Written Complaint alleged that respondent unlawfully issued two orders of protection not withstanding that there was no pending criminal action against the individual and thereafter issued two additional orders of protection without basis in law. Respondent filed an Answer dated November 14, 2011, and verified Novelnber 18, 2011. On January 10, 2012, the Administrator, respondent's counsel and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission in its determination based upon the agreed facts, recommending that respondent be censured and waiving further submissions and oral argument. The Comlnission had rejected an earlier Agreed Statement of Facts.  On January 26, 2012, the Comlnission accepted the Agreed Statement and made the following determination.

1. Respondent has been a Justice ofthe Lyme Town Court, Jefferson County, since 1991. Respondent's tenn expires on December 31, 2015. He is not an attorney.

As to Charge I o f the Fornal Written Complaint:
2. On May 13, 2008, at a time when there was no criminal action pending against Arnold Montgomery, approximately five of his neighbors appeared before respondent in Lyme Town Court to complain about Mr. Montgomery's conduct and to request that respondent issue orders of protection on their behalf. Thomas DeMasi was among the neighbors who engaged in the exchange with respondent.
3. Respondent was familiar with both Mr. Montgolnery and Mr. DeMasi from having presided over a matter in 2007 in which Mr. Montgomery was the alleged victim of harassment by Mr. DeMasi. Based on respondent's involvement in that matter, which was not prosecuted to conviction and had been finally resolved three months earlier, respondent had formed a negative opinion of Mr. Montgomery.
4. On May 13, 2008, after speaking ex parte with Mr. DeMasi and the other neighbors of Mr. Montgolnery who had come to court, respondent issued two orders of protection against Mr. Montgomery. One order listed the following as protected persons: Linda DeMasi, Thomas DeMasi and Michael DeMasi. The second order listed the following as protected persons: Peggy Chambry, Walter Chambry, Krista Chalnbry, Kevin Chatabry, Donna Walsh and Corey Walsh. Both orders had identical provisions directing Mr. Montgolnery to refrain from offensive conduct against the listed persons and further directing in handwritten specifications, "Do not trespass on others['] property." The orders were to remain in effect until May 13, 2009.
5. The two May 13, 2008, ex parte orders of protection that respondent issued against Arnold Montgolnery were served on Mr. Montgolnery in May of 2008 by two Town of Lyme police officers.
6. The two May 13, 2008, ex parte orders of protection that respondent issued against Arnold Montgomery were unlawful because there was no pending criminal action against Mr. Montgolnery, as required by Crilninal Procedure Law §530.13.
7. On or about July 21,2008, Trooper Keith Kloster of the New York State Police served Mr. Montgolnery at his home with a criminal summmons dated July 14, 2008, alleging Trespass, a violation of Penal Law §140.05, and Criminal Contempt in the Second Degree, a violation of Penal Law §215.50(3), for allegedly walking on Thomas DeMasi's property on June 6, 2008, in violation of the May 13, 2008, order of protection. Mr. Montgolnery appeared in the Lyme Town Court on the day he was served with the Sunmons; he was arraigned on the Trespass and Criminal Contempt charges by respondent and released on his own recognizance. On or about August 4, 2008, Jane G. LaRock, Esq., filed a written notice of appearance as counsel for Mr. Montgolnery.
8. On or about September 26, 2008, Mr. Montgoillery was arrested at his home by New York State Troopers for the offenses of Harassment in the Second Degree, a violation of Penal Law §240.26(3), and Crilllinal Contempt in the Second Degree, a violation of Penal Law §215.50(3), for allegedly harassing Mr. DeMasi on August 22, 2008, in violation of the order of protection issued on May 13,2008. Mr. Montgomery was processed on the Harassment and Criminal Contempt charges at the Watertown barracks of the New York State Police and released on an appearance ticket. On or about September 29, 2008, Ms. LaRock filed a written notice of appearance as counsel for Mr. Montgolnery in this case.
9. On or about May 13,2009, Mr. Montgolnery's attorney filed a motion in the Lyme Town Court alleging, inter alia, that respondent acted without authority and contrary to Criminal Procedure Law §530.13, when he issued the May 13, 2008, orders of protection because no criminal action was pending against Mr.Montgolnery on that date. The District Attorney opposed the motion.
10. On or about August 8, 2009, respondent dismissed all pending charges on the ground that the May 13, 2008, orders o f protection were improperly issued in the absence of a pending criminal proceeding.

As to Charge II of the Formal Written Complaint:
11. On or about April 14, 2009, Linda DeMasi and Thomas DeMasi sent respondent a letter: (1) advising that the May 13, 2008, orders of protection were about to expire, (2) requesting that respondent extend the orders and (3) requesting that the new orders include a "stay away" provision.
12. In or about April 2009, Peggy Chalnbry, Walter Chambry, Krista Chalnbry, Kevin Chalnbry, Donna Walsh and Corey Walsh also sent respondent a letter: (1) advising that the May 13, 2008, orders of protection were about to expire, (2) requesting that respondent extend the orders and (3) requesting that the new orders include a "stay away" provision.
13. On May 11,2009, without prior notice to Mr. Montgolnery or his attorney, respondent issued two orders ofprotection. One order listed the following as protected persons: Linda DeMasi, Thomas DeMasi and Michael DeMasi. The second order listed the following as protected persons: Peggy Chambry, Walter Chambry, Krista Chambry, Kevin Chambry, Donna Walsh and Corey Walsh. Each order included a "stay away" provision.
14. On May 12, 2009, the court mailed the two orders of protection issued against Mr. Montgomery by respondent on May 11,2009, to Mr. Montgomery.
15. Respondent also improperly included a provision in each order directing Mr. Montgotnery to surrender any and all firearms that he owned or possessed, without finding that, or even considering whether, any of the factors mandated by Criminal Procedure Law §530.14 had been established.
16. On or about August 11, 2009, respondent wrote to Linda DeMasi, Thomas DeMasi, Michael DeMasi, Peggy Chambry, Walter Chambry, Krista Chambry, Kevin Chatnbry, Donna Walsh and Corey Walsh and advised each of them: (1) that the May 11, 2009, order was "based on a procedural error" and was invalid, (2) that the order was "vacated effective itnmediately," and (3) that they could not re-apply for an order of protection unless a critninal action was pending in his court.

Mitigating Factors
17. Respondent has been cooperative with the Commission throughout its inquiry.
18. Respondent mistakenly believed he was acting within his authority when he issued all of the orders of protection.
19. Respondent has no previous disciplinary record. Respondent regrets his failure to abide by the Rules in this instance and pledges to accord his conduct with the Rules in the future.

Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A) and 100.3(B)(1) of the Rules Governing Judicial Conduct ("Rules") and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charges I and II of the Formal Written Complaint are sustained, and respondent's misconduct is established. In the absence of any criminal proceeding and based upon ex parte complaints from Mr. Montgolnery's neighbors, respondent issued two orders of protection against Mr. Montgomery directing him to refrain from offensive conduct against nine of his neighbors. Thereafter, when the orders were due to expire, respondent issued two additional orders upon the neighbors' request, with no notice to Mr. Montgolnery or his attorney. Respondent's abuse of judicial authority in connection with a neighborhood dispute was inconsistent with the requirements of the Crilninal Procedure Law (§530.13) and overstepped the boundaries of his judicial role, conveying the appearance that he was acting as a law enforcement officer, not as a judge. See Matter o f Barnes, 2005 Annual Report 81 Judge issued an order involving disputed property although no case was pending); Matter of Maclaughlin, 2002 Annual Report 117 Judge sent a threatening letter to a landowner about code violations on her property, although no charges had been filed against her); Matter of Wolf, 1987 Annual Report 71 Judge sent a letter threatening to hold an individual in contempt, based on ex parte information, although no civil or criminal action had been commenced). Respondent's conduct also created the appearance of prejudgment and bias against Mr. Montgomery, about whom respondent had formed a negative opinion as a result of an earlier case. Respondent also failed to follow the law in that his orders directed Mr. Montgomery to surrender his firearms, without consideration of the factors mandated by law (see CPL §530.14). As a consequence of respondent's unlawful orders, Mr. Montgomery was taken into custody twice, had to retain an attorney, and had criminal charges pending against him for over a year until they were dismissed. The fact that respondent vacated the orders after Montgolnery's attorney filed a motion citing the applicable law mitigates but does not excuse respondent's misconduct. Every judge is required to "respect and comply with the law" and to "be faithful to the law and maintain professional competence in it" (Rules, §§lOO.2[A], lOO.3[B][1]). As a judge for almost two decades, respondent should have realized that he lacked authority to issue an order of protection in the absence of a pending criminal proceeding. In considering the appropriate sanction, we note that respondent is contrite, has accepted responsibility for his conduct and has no previous disciplinary record. By reason of the foregoing, the Commission determines that the appropriate disposition is censure. Judge Kionick, Judge Ruderman, Judge Acosta, Mr. Belluck, Mr. Cohen, Mr. Emery, Mr. Harding, Ms. Moore, Judge Peters and Mr. Stoloff concur.  CERTIFICATION - It is certified that the foregoing is the detennination of the State Commission on Judicial Conduct. Dated: January 31, 2012  -  Jean M. Savanu, Esq., Clerk of the Commission New York State - Comtnission on Judicial Conduct

In The Matter of Justice Robert P. Apple

STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter ofthe Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
ROBERT P. APPLE, a Justice of the Pawling Village Court, Dutchess County.
THE COMMISSION:
Honorable Tholnas A. Klonick, Chair Honorable Terry Jane Rudennan, Vice Chair Honorable Rolando T. Acosta
Joseph W. Belluck, Esq.
Joel Cohen, Esq.
Richard D. Elnery, Esq.
Paul B. Harding, Esq.
Nina M. Moore
Honorable Karen K. Peters
Richard A. Stoloff, Esq.

DETERMINATION
APPEARANCES: Robert H. Telnbeckjian (Roger J. Schwarz, Of Counsel) for the Commission Honorable Robert P. Apple, pro se

The respondent, Robert P. Apple, a Justice of the Pawling Village Court, Dutchess County, was served with a Formal Written Complaint dated October 25, 2011, containing one charge. The Formal Written Complaint alleged that respondent operated a motor vehicle after consulning a quantity of alcohol that elevated his blood alcohol content to a level in excess of the legal limit. Respondent filed an Answer dated Decelnber 13, 2011. On January 17, 2012, the Administrator and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its detennination based upon the agreed facts, recommending that respondent be censured and waiving further submission and oral argument. On January 26,2012, the Commission accepted the Agreed Statement and made the following determination.

1. Respondent has been a Justice of the Pawling Village Court, Dutchess County, since 1991. His current tern expires on Decelnber 6, 2013. He was admitted to the practice of law in New York in 1984 and has been self-employed in the private practice of law for approximately 20 years.
2. On November 26, 2009, respondent consumed a number of alcoholic "cocktails" at his home. Sometime after consuming these cocktails, respondent drove his autolnobile, a Ford Focus, to a supennarket in Patterson, New York.
3. At approximately 1:57 PM, at the intersection of East Main Street and State Route 22 in the Village of Pawling, respondent drove his vehicle into the rear end of an automobile being operated by Oddny P. Olson, who resides in Stormville, New York. At the time of the accident, Ms. Olson's vehicle was stopped at a traffic light. Respondent's vehicle struck Ms. Olson's vehicle with sufficient force to cause her eyeglasses to fly off her face and for the bolts securing respondent's license plate to become embedded in Ms. Olson's vehicle's bumper.
4. A Sheriffs Deputy dispatched to the scene observed that respondent's eyes were glassy, that he staggered while walking and that he swayed while standing. The Deputy also detected the odor of alcohol on respondent's breath.
5. Respondent failed a field sobriety test adlninistered at the scene.
6. Respondent was arrested and taken to the Pawling substation of the Dutchess County Sheriff's Department. At approxitnately 3:35 PM, nearly two hours after the accident, respondent was given a breathalyzer test, which indicated a blood alcohol content of .21 %, more than two and a half times the legal limit of .08%.
7. Respondent was charged with Aggravated Driving While Intoxicated in violation of Vehicle and Traffic Law ("VTL") Section 1192(2-a), Driving While Intoxicated ("DWI") in violation ofVTL Section 1192(2) and (3), and Following Too Closely in violation ofVTL Section 1129(a).
8. On or about February 22, 2010, respondent appeared before Justice John D. Crodelle in the North East Town Court and pled guilty to DWI, a class "A" misdemeanor, in full satisfaction of all the charges.
9. On or about February 22,2010, respondent was sentenced to a conditional discharge and directed to pay a $500 fine and participate in a "Drunk Driver Program." Judge Crodelle also revoked respondent's license to operate a Inotor vehicle for a period of six months.

Mitigating Factors:
10. Respondent has expressed contrition for his actions. He also retained Martin D. Lynch, MS, a Licensed Professional Counselor specializing in alcohol and substance abuse, to evaluate respondent's consumption of alcohol before driving on November 26, 2009. Mr. Lynch concluded that it was an "isolated event" and that further counseling was not needed. Notwithstanding this opinion, respondent enrolled in, and regularly attends Alcoholics Anonymous meetings, and is receiving "preventative counseling."
11. There is no indication that respondent invoked his judicial office to secure favorable treatment at any time during his encounters with law enforcement authorities or others in connection with this incident.
Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A), 100.4(A)(2) and IOO.4(A)(3) of the Rules Governing Judicial Conduct ("Rules") and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charge I of the Formal Written Complaint is sustained, and respondent's misconduct is established. Respondent violated his ethical obligation to respect and comply with the law and endangered public safety by operating a motor vehicle after consuming a significant quantity of alcohol, resulting in a minor accident and his conviction for
Driving While Intoxicated. Such conduct is inconsistent with a judge's obligation to maintain high standards of conduct at all times, both on and off the bench (Rules, §§100.1, 100.2[A]). Respondent should have recognized that driving after consuming "a number of alcoholic 'cocktails'" created a significant risk to the lives of others. Ignoring the risk of such behavior, he operated his vehicle notwithstanding that his blood alcohol content was well above the legal threshold for impairment. While it is fortunate that his behavior did not result in serious injury, his conduct resulted in an accident in which his car struck a vehicle stopped at a traffic light. After failing a field sobriety test, he was taken to the police station, where a breathalyzer test taken almost two hours after the accident showed a .21 % blood alcohol content, more than twice the .08% legal limit. He later pled guilty to Driving While Intoxicated, a misdemeanor, in satisfaction of the charges against him. By violating the law which he is called upon to apply in his own court, respondent engaged in conduct that undennines his effectiveness as a judge and brings the judiciary as a whole into disrepute. In detennining an appropriate disposition for such behavior, the Commission in prior cases has considered mitigating and/or aggravating circulnstances, including the level of intoxication, whether the judge's conduct caused an accident or injury, whether the conduct was an isolated instance or part of a pattern, whether the judge was cooperative during arrest, whether the judge asserted his or her judicial office and sought special treatment, and the need and willingness of the judge to seek treatment. See, e.g., Matter o Maney, 2011 Annual Report 106 (judge, convicted of Driving While Ability Impaired ["DWAI"], Made an illegal V-turn to avoid a sobriety checkpoint, delayed taking a breathalyzer test and repeatedly invoked his judicial office while requesting "professional courtesy" and "consideration" [censure]); Matter of Martineck, 2011 Annual Report 116 (DWI conviction, based on a blood alcohol content of .180/0, after the judge drove erratically and hit a mile marker post [censure]); Matter of Burke, 2010 Annual Report 110 (DWAI conviction after causing a minor accident; judge was cooperative during the arrest and did not assert her judicial office [censure, in part for additional misconduct]); Matter of Mills, 2006 Annual Report 218 (though acquitted of DWI, judge operated a motor vehicle after consuming alcoholic beverages, "vehemently" protested her arrest and made offensive statements to the arresting officers [censure]); Matter of Pajak, 2005 Annual Report 195 (DWI conviction after causing a property damage accident [admonition]); Matter of Stelling, 2003 Annual Report 165 (two alcohol- related convictions [censure]); Matter of Burns, 1999 Annual Report 83 (DWAI conviction [admonition]; Matter of Henderson, 1995 Annual Report 118 (DWI conviction; judge referred to his judicial office during the arrest and asked, "Isn't there anything we can do?" [admonition]); Matter of Siebert, 1994 Annual Report 103 (DWAI conviction after causing a three-car accident [admonition] Matter o fInnes, 1985 Annual Report 152 (DWAI conviction; judge's car caused damage to a patrol car while backing up [admonition]; Matter of Barr, 1981 Annual Report 139 (two alcohol-related convictions; judge asserted his judicial office and was abusive and uncooperative during his arrests, but had made "a sincere effort to rehabilitate·himself' [censure]); Matter of Quinn, 54 NY2d 386 (1981) (two alcohol-related convictions and other non-charged alcohol-related incidents; judge was uncooperative and abusive to officers during his arrest and repeatedly referred to his judicial position [removal reduced to censure in view of then urge's retirement]). In the wake of increased recognition of the dangers of driving while itnpaired by alcohol and the toll it exacts on society, alcohol-related driving offenses have been regarded with increasing severity. In this case, we note that there is no indication that respondent invoked his judicial office in an attempt to secure favorable treatment (compare, Matter of Maney, supra). The record further reveals that although an evaluation determined that the incident was an "isolated event," respondent has sought "preventative counseling" and attends AA meetings. Given the totality of the circumstances presented here, we conclude that the sanction of censure is appropriate. By reason of the foregoing, the Commission determines that the appropriate disposition is censure. Judge Klonick, Judge Rudennan, Judge Acosta, Mr. Belluck, Mr. Cohen, Mr. Emery, Mr. Harding, Ms. Moore, Judge Peters and Mr. Stoloff concur.  CERTIFICATION - It is certified that the foregoing is the detennination of the State Commission on Judicial Conduct.  -  Dated: January 31, 2012  -  Jean M. Savanyu, Esq.  - Clerk of the Commission - New York State Commission on Judicial Conduct