Viii. Oral Argument

STATE OF NEW YORK
COMMIS'SION'"ON JUDICIAL CONDUCT

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In the Matter of the Proceeding
Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to· ORAL ARGUMENT
.ROBERT M. RESTAINO
a Judge of the Niagara Falls City Court,

Niagara COtlnty.
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61 Broadway
New York, New York 10006
September 19, 2007
2:11 P.M.
B e fo r e:
Raoul Lionel Felder, Esq., Chair
HOI1. Thomas A. Klonick, Vice Chair
Stephen R. Coffey, Esq.
Colleen DiPirro
Richard D. Emery, Esq.
Paul B. Harding, Esq.
Marvin E. Jacob, Esq.
HOI1. Jill Konviser
Hon. Karen K. Peters
Hon. Terry Jane Rudennall
Commission Members
Jean M. Savanyu, Esq.

Clerk of the Commission
Pre sen t:
For the Commission
John J. Postel, Esq.
Edward Lilldner, Esq.
Rebecca A. Roberts
For the Respondent

Joel L. Daniels, Esq.
Mark R. Dba, Esq. ,
Hon. Robert M. Restaino
A 1soP res e n t:
Miguel Maisonet, Senior Clerk and ESR Operator
1 MS. SAVANYU: Mr. Felder and members of
2 the Commission, this is the oral argument in the
3 matter of Robert Restaino, a judge of the Niagara
4 Falls City Court. Mr. Daniels and Mr. Uba are
5 appearing for Judge Restaino. Mr. Postel,
6 Mr. Lindner and Ms. Roberts are appearing for the
7 Commission.
8 MR. FELDER: This is going to be an oral
9 argument with respect to the referee's report to
10 determine whether misconduct has occurred and, if
11 so, what the appropriate sanction should be. Each
12 side has 30 minutes. You could reserve whatever
13 time is appropriate ,for rebuttal. The Commission
14 g'oes first. After the first go-rol-Iud the respondent
15 can be heard for up to ten minutes. All arguments
16 should be confined to whatever's in the record. Now
17 the lighting system is such, green light means go
18 ahead, speak; blinking light, two minutes left; yellow
19 light means one minute left; al1d, of course, red light
20 means stop. Mr. Postel, are you ready to proceed?
21 MR. POSTEL: Yes, Mr. Felder. Mr. Felder
22 and members of the Commission, I would like to
23 reserve five minutes, please.
24 There are abuses of power by a judge that are
25 so egregious, so extremely and conspicuously bad
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1 that no mitigation, no contrition, no character

2 testimony can excuse them. There is misconduct so
3 profoundly wrong, so harmful to the public that it
4 simply cannot be countenanced, no matter whether it
5 occurred over a month, a week or a day. 111 such
6 circumstances removal is the appropriate sanction·to
7 protect the public and to restore the public's
8 confidence in the judiciary's fair and lawful
9 administration ofjustice, no matter how chastened,
10 l10W humble the judge may now appear.
11 JUDGE RUDERMAN: Mr. Postel, just
12 assuming we find misconduct, I guess there's certain
13 cases that we can loole to, Carter, Allman, wllich
14 were one event days, something that happened, and
15 yet we found cens-ure only as a sanction. Do you
16 want to distinguish those?
17 MR. POSTEL: Certainly, Judge Ruderman.
18 Beginning with Judge Allman and as to Judge Carter
19 too·, I will say this: those were linlited in their scope.
20 Although they occurred on only one day, they
21 involved one or two defendants only. Further, Judge
22 Allman, and I thi11k this is very important here,
23 apologized immediately to the defendant who he
24 wronged. He recognized his misconduct. As we've
25 seen in the Blackburne case, which I'll discuss later,
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1 reconsideration following misconduct is very

2 important. And he acted upon it. He personally
3 reached out to that defendant to let him know tllat
4 what he had done was wrong. He tried to right his
5 wrong at the time it occurred. In Carter no O~le was
6 incarcerated. The distinguishing factor in this case,
7 and I think it's one of the worse that's ever conle
8 before you, is that 46 people wellt to jail. On May
9 11 th __
10 mDGE KONVISER: -- Was 46 accurate?

11 Was 46 accurate?
12 MR. JACOB: It's not accurate.
13 mDGE KONVISER: Or is it 13 that actually
14 went to jail?
15 MR. JACOB: It's 14.
16 MR. POSTEL: Forty-six were sent to the
17 police lock-up. and placed in a holding tal1k and then
18 in jail cells.
19 mDGE KONVISER: And they post -- the
20 bonds -- posted the bail prior to being taken to the
21 11alf-hour -- to the jail a half-hour away, is that what
22 happened?
23 MR. POSTEL: While present ill the police
24 jail cells -- and make no mistal(e about it, they were
25 incarcerated in jail cells, 24 square-feet cells
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1 designed for one or two people, which on that day, as

2 a result of respondent and a ringing cell phone, were
3 forced to hold eight to ten people cramped il1side.
4 They were there between two, three hours. Fourteen
5 of them could not post bail. Those 14 had a different
6 experience. And what was it that happened and how
7 did this happen?
8 JUDGE RUDERMAN: So it's the number
9 that distinguislles it?
10 MR. POSTEL: The numbers are
11 overwhelming.
12 MR. FELDER: Mr. Postel -
13 mDGE PETERS: -- I don't think it's just the
14 numbers, so let me see if I can ask one more
15 question. Not only were a large l1umber of people
16 incarcerated, but, as I understand it, when tIle cell
17 phone, the reported cell phone rang and the judge
18 demanded to kn.ow -who it belonged to, he then left
19 the bellch for a recess and ordered that no one be
20 permitted to leave tIle courtroom. Anl I correct?
21 MR. POSTEL: That's correct.
22 JUDGE PETERS: So, that means he held
23 everyone in that courtroom, which could have been
24 an individual who/was a spectator, not a person who
25 was appearil1g before the court as a defendant.
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1 Correct?
2 MR. POSTEL: Correct. The lawyers who
3 were present -
4 JUDGE PETERS: -- He locked the
5 courtroom.
6 MR. POSTEL: He locked the courtroom.
7 TIle lawyers who were present, the program
8 counselors who were present, the court staff, the
9 court security -
10 JUDGE PETERS: -- So, if somebody had just
11 been there to watch court, they were prohibited from
12 leaving the room.
13 MR. POSTEL: That's the testimony of the
14 senior, the lieutenant court security officer present.
15 However, I should clarify that just a bit, judge.
16 Before tllat moment people were free to come and
17 go. So that -- as we all know, this is about a single
18 breach of courtroom etiquette. It's about a cell
19 phone that went off and respondent's reaction.
20 JUDGE PETERS: So you're saying that it
21 could have been that the person who owned the cell
22 phone left the courtroom before all this took place
23 anyway?
24 MR. POSTEL: And I would suggest that that
25 in fact is highly lilcely since there is no evidence that
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1 a cell phone related to what went off was ever

2 produced, and each of these defendants were
3 searched twice.
4 JUDGE PETERS: -Okay. So in other words,
5 46 people were incarcerated; the courtroom was in a
6 sel1se closed off -
7 MR. POSTEL: -- Locl(ed down -
8 JUDGE PETERS: -- so that people could 110t
9 leave, that's Judge Teresi was, if I recall, censllred
10 for refusing to allow David Bookstaver to leave. Am
11 I correct?
13 JUDGE PETERS: One person.
14 MR. POSTEL: Correct.
15 JUDGE PETERS: And, in addition, as I
16 understand it, the judge took a recess at which time
17 he could have reconsidered his threat, and instead
18 g.ot bacl( on the bench and incarcerated 46 people.
19 MR. POSTEL: In fact, that's crucial to your
20 deliberations here. He had a five-minute recess. The
21 phone goes off, no one immediately accepts
22 responsibility. He threatel1s to incarcerate the -- all
23 the defendants there. He then takes a recess. During
24 that recess he does not reconsider. Instead, he
25 returns five minutes later, it was quite a while, and
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1 ma1<~es good on his promise.

2 JUDGE KLONICK: Mr. Postel, how long
3 had the judge been on the bench up to that point, do
4 you know?
5 MR. POSTEL: Sure. He went on the bench
6 in 1996.
7 JUDGE KLONICK: No, no, that day. How
8 long had he been on the bench?
9 MR. POSTEL: An hour.
10 JUDGE KLONICK: An hour. Is there
11 anything in the recqrd on the day of this incident as
12 to any allegations as to how he treated other
13 defendants who were in this domestic violence
14 program?
15 MR. POSTEL: I think what's important here
16 is -- yes. I think that it is important to recognize this.
17 Tllirty-one defel1dants appeared before him that day,
18 31, and they were treated in a regular routine
19 fashion, including eleven that day who were later
20 placed in bail and -- placed in jail. Eleven of the
21 defendants came before him before the phone went
22 off and he said, "Fine, go back, you walk in here
23 free, you can leave here free at the end of the
24 proceedings. The release on recognizance
25 continues." What changed between when he
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1 evaluated their cases in a considered fashion? Only

2 the cell phone going off. Additionally, and I think
3 this is important for you to understand, there are -
4 there were two defendants who appeared that day
5 before the phone went off, who are actually in
6 violation that day of the conditions of the program.
7 They were out on ROR and had either not appeared
8 in court, not appeared in court on the previous
9 occasion or not attended their counseli11g, a required
10 condition of the program. Under those
11 circumstances, the judge is authorized to change the
12 bail, the custodial circumstance, and put them in or
13 raise their bail. Both of those defendants, including
14 Jimmy Taylor, who's not part of our 46 because he
15 left, a repeat offender 110t going to court, and Mr.
16 Christian, who was there a11d didn't go to court a11d
17 didn't go to his program, respondent ROR' ed both of
18 them that morning within 45 minutes of when he
19 began his course of conduct, his course of
20 misconduct, his mistreatment -
21 MR. EMERY: -- Mr. Postel, I want to make
22 sure you don't leave out your discussion of
23 Blackburne before you finish up, so I want to 'hear
24 your -- you said you were going to talk about
25 Blackburne.
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1 MR. POSTEL: Sure. I think Blackburne is

2 vital here al1d I assume that respondent's counsel
3 will address it. The Blackburne question is a sil1g1e
4 il1cident, can a judge be removed for a single
5 incident? So, the bootstrap from that is, can a judge
6 be removed for conduct on a single day? I would
7 suggest to you a number of things. One, Blackburne
8 involved one caseG Again here, Judge Ruderman, we
9 11ave 46 cases. But as important is this: Blackburne,
10 the Court of Appeals language was "single,
11 unconsidered action~" In Blackburne the Court of
12 Appeals gave direction to all of us that a judge has
13 an obligation to reconsider their conduct. And in this
14 case the judge had extensive opportunities to
15 reconsider his conduct. He had opportunities during
16 tIle recess; he had opportunity when each of these
17 defendants were called separately. Tllis was not a
18 rush to judgment, a momentary fit or pique -of al1ger.
19 Respondent was calm and he was his regular
20 demeanor. He handled other cases during these 46.
21 He granted an ACD in a case after extensive
22 discussion with the attorney involved. Anq may I
23 say also, there was no attorney involved for any of
24 these defendants except one. These are 46, 45
25 unrepresented defendants. He issued bench
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1 warrants, he considered the fact the defendants

2 weren't appearing in court and made orders. There
3 were intervening cases that established -- gave him
4 numerous opportunities to reconsider.
5 MR. EMERY: Had any of these defendants
6 been convicted of anything in the context of what
7 was going on before this judge?
8 MR. POSTEL: This was -
9 MR. EMERY: -- Were they_presumptively
10 innocent people there on charges in the diversionary
11 program?
12 MR. POSTEL: It is a specialty court and
13 specialty courts operate in a special way. Later
14 they're going to plead guilty, they've been convicted,
15 they're 011 an ACD if they complete the program.
16 One of these defendants -
17 MR. EMERY: -- But they hadn't pled guilty
18 yet?
19 MR. POSTEL: They had not been officially
20 adjudicated guilty at the time. Well, if no crime -
21 JUDGE PETERS: -- Well, even if some of
22 thelTI had pled guilty -
23 MR. POSTEL: -- there was no basis -
24 JUDGE PETERS: -- the judge wasn't
25 incarcerating them for the offense they committed.
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1 He was incarcerating them because he didn't like the

2 fact that they didn't say it was their cell phone.
3 Correct?
4 MR. POSTEL: And I think that's an
5 important point to remember.
6 JUDGE PETERS: It didn't matter what
7 offense they committed.
8 MR. PO"STEL: Right. This is not about a cell
9 pho1le going off. This is about defendants violating
10 his trust. This is about defendants who don't give
11 him tIle answer that he wants. Even though they -
12 there's 110 proof they had the answer, there's no
13 proof they had the cell phone. Other people certainly
14 were in the courtroom WllO could have had it, and
15 anyone could'have left. And I -- there's another
16 point, Mr. Emery, and I think-
17 MR. "EMERY: -- Well, isn't Blackburne a
18 case -- and I want you to hold that point, don't forget
19 your point -- but isn't Blackburne a case where a
20 person who was an innocent person was released
21 wIlen he should have been arrested? And this is a
22 case where innocent people are put in prison who
23 should have been allowed to leave.
24 MR. POSTEL: These are -- that's true.
25 These are people WllO walked in free.
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1 MR. COFFEY: -- They weren't put ill prison.

2 MS. DIPIRRO: -- Jail. Jail
3 MR. EMERY: -- They were put ill jail.
4 MR. POSTEL: -- Put behind bars. Some
5 placed in the jail, some -- they were -- their liberty
6 was deprived in a knOWillg violation of the CPL,
7 lmowing -- assuming, respondent testified, assllming
8 that they couldll't post bail.
9 MR. COFFEY: Let me ask you, I know you
10 don't want to -- you'd rather not reach this, but -
11 MR. POS'TEL: -- Don't assume anything.
12 MR. COFFEY: But, well, the action is so
13 bizarre, I mean, it's just so bizarre that it leads one to
14 a questioll WIlY did he do it. And is it so bizarre, in
15 an odd sort of way, should he be removed on
16 sometlling he has no prior history of anything?
17 MR. POSTEL: It's so profoundly wrong that
18 it suggests to us -- and that's a great point, why did
19 he do it? Ifwe don't -- we still don't have an answer
20 from respondent. He's given some defel1ses-
21 frustration, marital strain, neither of which is a
22 legitimate defense, I would argue before this body as
23' to the conduct of this nature -- you can't be sure
24 under that scenario that it won't happen agaill. The
25 doctors -
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1 mDGE PETERS: -- Isn't that like

2 Blackburne? So, so bizarre, so unusual it strains
3 anyone's ability to understand.
4 MR. POSTEL: And like Sardina, where the
5 Court of Appeals said it's so erratic that we can't
6 have a judge who acts in this erratic fashion. We
7 can't have confidence, and I believe you can't have
8 confidence. But getting bacl( -
9 MR. FELDER: --Mr. Postel, I have a
10 question. Getting bacl( to Judge Rudennan, is the
11 distinction between Carter, where arguably the
12 conduct was even more grotesque, is it simply the
13 llumber of defendants involved, the nllmber of
14 people involved?
15 MR. POSTEL: No -- yes, I think, I think that
16 it's the fact that in this case whether it's one or two
17 or five to ten individuals have the,ir liberty deprived
18 unlawfully, were· held in jail. Some of them, the 14,
19 and we' should be clear about this, they were placed
20 ill handcuffs.
21 MR. FELDER: Shackles, I believe.
22 MR. POSTEL: Leg irolls, waist chains with a
23 lock box at their waist, transported by armed guards,
24 searched twice, tal(en to tIle COUllty sheriff s office.
25 When they got to the county j ail, excuse me, when
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1 they got there, they were eventually released. How

2 were they released? Well, respondent had gone to
3 another jail 011 a tour. It did11't occur to hinl on that
4 tour that he had violated these people's rights,
5 although he was touring the jail. It wasn't until after
6 he was contacted by his clerk, and after the clerk told
7 him, "By the way, the press is mal(ing inqlliry here,"
8 that he did something. And what did he do? He
9 said, "Okay, let's get this together." And he drives
10 back to the court, half an hour, so he's gone now
11 between noon, when he left to go tOllr the other jail,
12 and 4:00 or so, 4:15 P.M., 3:45 P.M. maybe, excuse
13 me, 3:30 P.M., and he tal(es no action. When he gets
14 back, he does not immediately say, "Get them out."
15 He waits another 45 minutes to an hour before
16 signing the papers creating a record to get these
17 people out ofjail. Well, they were in the buildi11g
18 and tlley were being transported to the jail.
19 MR. EMERY: There was some testimony
20 which -- I read the record -- that he -- that there was
21 some involvement of an administrative judge at some
22 point. I mean, that was not clear in the record to me
23 as to what -- whetller he was advised by an
24 administrative judge or he consulted one and told to
25 let them go or whether only after the press inquired
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1 he did it on his own.

2 MR. POSTEL: I believe that refers to the fact
3 that he was taken off of this -- tal<:en out of the
4 domestic violence part.
5 MR. EMERY: Subsequently.
6 MR. POSTEL: Subsequently.
7 MR. EMERY: Yes, btlt on the day of the -
8 was there any interference or -
9 MR. POSTEL: -- No, no. He was doing this
10 after -- he did it after learning about the press
11 InquIry.
12 MR. EMERY: Okay.
13 MR. POSTEL: There's another
14 distinguishing factor from Carter, in Carter, tllat I'd
15 like to go -- and it's a distinguishing factor to all the
16 other cases. And it's this: respondent's conduct
17 during the course of th·e process in which he was
18 incarcerating these 46 people without basis in law
19 was this: he was insulting, he was· demealling, he
20 nlocked them, he called them crazy, selfish, self
21 absorbed, cowardly. He compared them
22 outrageously to characters ill a mob movie, that's
23 what he called them. He mocl<:ed them to their face.
24 When two defendants appeared before him, and I
25 give you two as an example, Mr. Loya first -- L-O
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1 Y-A, he appeared and he said, "Judge, excuse me"

2 -- now a number of defendants had pleaded for
3 special consideration and I'll get to that on other
4 basis. But Mr. Loya said, "I'm here because I got a
5 ride from the elderly couple who I have a
6 relatiQnship through my girlfriend with. They're in
7 their 70's. Can you consider this?" And his response
8 was, "That is unfortunate." When Maurice Saunders
9 said to him towards the end when defendal1ts were
10 saying, "This isn't right, this is wrong, you shouldn't
11 do this," Mr. Saunders appeared and was being sent
12 in, and he said to respondent, he said, "This ain't
13 right." Respondent's reaction was a mocking
14 reaction, it was, "This ain't right, this ain't right at
15 all." What did we have here? We had defendants,
16 people, people knowing that the process was skewed.
17 People knowing that the last line 'of liberty was
18 acting in a tyrannical fashion to them. There was no
19 boundary now.
20 JUDGE PETERS: I have to tell you one of
21 the concerns I have about this case is the subject
22 matter you're discussing now. And that has to do
23 with the faith and confidence tl1at people have in this
24 system ofjustice. And these are individuals who are
25 already before the court in a program that is based
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1 upon respect, faith and confidence. And my concenl

2 is that each of those individuals, their ability to have
3 ~ny confidence or faith in the justice system, from
4 my point of view, is destroyed.
5 MR. POSTEL: That is precisely what
6 happened here. This was a vulnerable cohort, a
7 cohort who, which respondent -- he acted from a
8 belief that they were violating his trust. What an
9 irollY. He goes to jail and doesn't see the irony of
10 being in jail and getting the people out. And before
11 that, what does he do? He violates the trust that he
12 had worked so hard to engender. He SllOWS people
13 who are in a program to gain control and respect, he
14 shows them no control, he shows them no respect.
15 He violates the type of trust in the system that the
16 system was working to build and the specialty courts
17 were specifically designed to develop. And how
18 does he do that? He does it not just by putting them
19 in but by looking at them as they appear before him.
20 Two things are important here. First, a
21 number of thenl came before him and said, "Please,
22 I'm in special circumstances." Henry Smith's
23 daughter, he had custody for. He was going to pick
24 her up, scheduled to pick her up at 3:30 P.M. al1d he
25 said, "Please, nlY little girl is waiting, is going -- I'm
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1 supposed to pick her up at 3:30 P.M., I can't go into

2 jail now." What does he do? He says, "Please, send
3 me to jail next weelc." Another defendant, "I have to
4 call nlY doctor to find out whetller I'm 11aving
5 surgery. I'm scheduled -- I'm going to be scheduled
6 for -- I need to know whether I'm going to be
7 scheduled for surgery, whether I need it."
8 Disregards it. Four defendants say to him their job is
9 at jeopardy. Another defendant says he should be at
10 school. Another defendant, another person says to
11 him, "My mother is scheduled for surgery, I've got
12 to -- I can't stay here now." These are not people
13 who were talcen off the street for committing crimes.
14 These were people who walked into court because
15 the system had judged them to be fair risks for
16 returning. And they were all returning. That's the
17 other irony.
18 JUDGE KONVISER: Who made the
19 decision to let these individuals in the program?
20 Was it something Judge Restaino did?
21 MR. POSTEL: The -- it's a program-
22 basically the district attorney recommends them for
23 participation and Judge Restaino approves.
24 JUDGE KONVISER: So, he approved all
25 these people for this diversion?
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1 MR. POSTEL: Correct, right, based upon the

2 recommendation.
3 JUDGE KLONICK: Mr. Postel, how many of
4 these 46 had attorneys?
5 MR. POSTEL: Only one defendant appeared
6 before him that day with'an attorney. Only one
7 defel1dant was sent to jail after an attorney was
8 present. The rest of them had no counsel.
9 MR. COFFEY: This is almost piling on, but
10 the people who set bail -- who made bail, did they
11 have bail bondsmen? Did they have to pay money to
12 get out ofjail?
13 MR. POSTEL: Yes.
14 MR. COFFEY: Well, did the money come
15 back to them? That's my question.
16 MR. POSTEL: Let's understand this. We -- 1
17 focused at the hearing in this case and I'm focused
18 here today on the 14 defendants, rightfully, I think,
19 who were in custody, in chains. But the others were
20 not without hann. There were those who had to
21 come up with additional bail while waiting in court.
22 While -- you take, for example, one of the
23 defendants who said to the judge, "I borrowed my
24 original bail money from someone who used their
25 tax retLlrn." Respondent turns a deaf ear to this -- to
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1 tllem. So, yes, there was harm and impact upon

2 these defel1dants and their lives that tral1scel1ded just
3 the cuffs, although I would argue that the cuffs are
4 powerful evidence as to serious misconduct.
5 MR. HARDING: Mr. Postel, in the Matter of
6 Mills, you've got this young man who's found
7 inl10cent of the charge, he is, I think it said, the youth
8 was held in solitary confinement four days, and he
9 was censllred.
10 MR. POSTEL: If I were to come before you
11 today on the Matter ofMills, I would argue that case
12 for removal.
13 mDGE KONVISER: What case -- for
14 removal?
15 MR. POSTEL: For removal. There were in
16 fact three votes for removal in that case. That case
17 has a significantly distinguishing factor. Yes, as
18 Judge Ruderman has pointed out t6 us, it's only a
19 few defendants, two defendants in that case, and here
20 we have 46. But there are otl1er exacerbating factors
21 and I think they're serious. The distinguishing
22 factors, Mr. Harding, it's this. As in Sardino, the
23 judge dehumanized, insulted, demeaned the
24 defendal1ts before putting them in. That didn't
25 happen here. In Mills, the judge, although making
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1 the wrong decision and a harsh decision, was at least

2 acting under the .color of some law, under his
3 contempt authority. There should be no doubt here,
4 this is not a contempt case. Contempt was never
5 raised as an issue here. This is an incident with an
6 extra-judicial abuse of authority and knowing
7 violation of the law.
8 Respondent wal1ts to come before you, and
9 his papers say he's a model jurist. Well, as a model
10 jurist and as he acknowledged at the hearing, he was
11 aware of the requirements of Section 510.30 of the
12 Criminal Procedure Law. He knew that he had to
13 consider certain factors before making bail changes
14 on defendal1ts, and not -- and with regard to not one
15 of them did he do that. Mills was under the contempt
16 authority; whether it was right or wrong, there was
17 sonle issue abollt -- in fact, there was an issue about
18 whether or not it was one provision with contempt
19 authority or another. So, I thil1k Mills is not on point
20 at all in this case, and I don't think it holds any
21 weight or you should give it any bearing now.
22 I want to, if I might, conclude where I -- about
23 something I spol<:e to il1itially, and that's this. There
24 was no apology. I think it's very important.
25 Respondent will get up and he'll apologize to you.
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1 It's not enough. Respondent-

2 JUDGE PETERS: -- Did he -- are you saying
3 he never apologized to any of these defendants?
5 JUDGE PETERS: He never -
6 MR. POSTEL: -- He apologized to his
7 counsel. He apologized to me.
8 JUDGE PETERS: I don't care about his
9 counsel. Actually, I don't care about you either -
10 don't take it personally. But did he ever either write
11 a letter to each defendant and apologize or call each
12 defendant back into court and say, "Listen, you
13 know, I made a mistake" -
14 MR. POSTEL: -- That's not what we have.
15 JUDGE PETERS: -- "and your faith ill the
16 justice system was affected by what I did and I want
17 to make it -- I want to apologize"?
18 MR. POSTEL: We don't have that here.
19 MR. COFFEY: Even ifhe had, though, ill all
20 honesty, it wouldn't have made a difference as far as
21 you're concerned. He could have apologized,
22 written them letters, brought them in. Your position
23 is this act is so outrageous on its face that notlling he
24 could have done subsequent to that would have done
25 anything else but warrant his removal, basically.
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1 Isn't it true?
2 MR. POSTEL: That's true.
3 JUDGE KONVISER: Or nothillg before. His
4 prior record is of no -
5 MR. POSTEL: -- Right, his prior is important
6 I think to you in terms of evaluating his argument on
7 his defense of marital strain and seelcing counseling.
8 There's no indication that he ever sought cOllnseling
9 before. When you consider his marital strain defense
10 you should recognize that before he went into meet
11 with each of the two counselors, whose testimony, I
12 think, was completely undermined by cross
13 examination, respondent's counsel tallced to both of
14 tllem and they knew that lle was coming ill and that
15 administrative proceedings were relevant.
16 There are 1,600 pages of material in front of
17 you. A 1000-page transcript, 300 pages in briefs,
18 300 pages in exhibits. And yet in those 1,600 pages
19 there is only one number I think you need to
20 remember. As you retire for your deliberations, you
21 need only think of the 46 defendants, a number so
22 large, alld I apologize for this, that I could not read to·
23 you the names of each one of them, and they deserve
24 to be considered individually. Thank you.
25 MR. DANIELS: Mr. Chairman and members
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1 of tile Commission, Mr. Postel. We certainly

2 understand all of Mr. Postel's arguments and his
3 recommendation in this case. With all due respect,
4 there's another side here to Judge Restaino and
5 there's another side to this case. And there's a lot of
6 good, solid reasons why we don't believe he should
7 be removed from the bench. Except for a few hours
8 on March 11,2005, we're talking here about a judge
9 wllose record is spotless. Eleven years on the bench
10 in total, nine years before March 11, 2005, and two
11 years since, 90,000 court dispositions in a very, very
12 busy city court both criminal, civil cases, five and a
13 half years in domestic violence part, hundreds if not
14 thousands of cases of domestic violence, no
15 incidents, no complaints, no problems. Nothing like
16" this ever happened before. Lawyers-
17 JUDGE PETERS: -- I -
18 MR. DANIELS: -- Sorry, judge.
19 JUDGE PETERS: I need to interrupt
20 because -
21 MR. DANIELS: -- Certainly.
22 JUDGE PETERS: -- given this judge's prior
23 conduct, which was -
24 MR. DANIELS: -- Exemplary.
25 JUDGE PETERS: -- exemplary, can you
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1 explain to me why he wouldn't talce the time and

2 energy to apologize to each individual whose rights
3 he violated and whose faith and confidence in the
4 judiciary was destroyed by his conduct? I meal1 -
5 MR. DANIELS: -- First of all-
6 JUDGE PETERS: -- most of us, when we-
7 whether we're generally well-behaved or generally
8 poorly-behaved, those of us who are generally well
9 bellaved, when we do something wrol1g, we'll take
10 the time and energy to say, "You know, I'm really
11 sorry. I shouldl1't have said it that way, I 11urt your
12 feelings." Or, "I shouldn't have raised my voice." I
13 . mean, that's what civil means, I believe.
14 MR. DANIELS: Yes, I agree with you.
15 JUDGE PETERS: So tell me why it didn't
16 happel1.
17 MR. DANIELS: He didn't have the
18 opportunity to do that.
19 JUDGE PETERS: Since when?
20 MR. DANIELS: He wasn't able -
21 JUDGE PETERS: -- What year did this
22 happen?
23 MR. DANIELS: This happened in 2005.
24 JUDGE PETERS: Okay. It's been 24
25 months.
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1 MR. DANIELS: March 11, 2005. I

2 understand.
3 JUDGE PETERS: Why doesn't he have the
4 time?
5 MR. DANIELS: Well-
6 JUDGE RUDERMAN: -- Don't these
7 defendants keep returning to the court? Isn't that-
8 MR. DANIELS: He was taken out -
9 JUDGE RUDERMAN: -- oh, I'm sorry,
10 right.
11 MR. DANIELS: -- of domestic violence. He
12 wasn't in there.
13 JUDGE PETERS: Oh, you mean -- and he
14 couldn't ask the administrative judge ifhe could get
15 the names and addresses of the defendants so he
16 could write a "I'm sorry" letter?
17 MR. DANIELS: Well, in hindsight, maybe
18 he should have done that. I understand that. He was
19 remorseful and sorry from the get-go in this case.
20 JUDGE PETERS: When did he begin to
21 become remorseful?
22 MR. DANIELS: That afternoon when he
23 realized what he ha·d done. He made calls; he saw to
24 it that everybody was released. He was remorseful,
25 sorry, apologetic right away.
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1 MR. EMERY: He didn't see to it that they

2 had any ride back from the lock-up that they were in,
3 which was some half-hour away from where they
4 were taken, did he?
5 MR. DANIELS: I don't know how he would
6 have done that, Mr. Emery.
7 MR. EMERY: Well, how about making some
8 kind of -- he made arrangements to get them there,
9 didn't he? Can't he make arrangements so the
10 sheriff or somebody to bring them back?
i
I
11 MR. DANIELS: I'm not certain he was able

12 to do that. I don't know -
13 MR. EMERY: -- Did he malce any attempt to
14 do it?
15 MR. DANIELS: I don't believe he did and
16 I'nl not certain if the sheriff would have
17 accommodated him on that.
18 JUDGE PETERS: What do you mean by
19 remorseful? Tell me what you mean by that.
20 MR. DANIELS: He is as sorry as anyone can
21 ever be.
22 JUDGE PETERS: Sorry to whonl?
23 MR. DANIELS: He's sorry to this
24 Commission, he's sorry to those defel1dants, he·'s
25 sorry to other City Court judges. He's sorry to the
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1 system for everything that he's done and all the

2 embarrassment that he's caused here. Ifhe could
3 have gone to each one of those individuals, all 46 of
4 those individuals, and told them personally, "I'm
5 sorry for what I did," he would have done.
6 JUDGE PETERS: Well, if I understand the
7 record, he called Ray Lopez and asked for a referral.
8 Am I correct?
9 MR. DANIELS: Monday, yes, March 14th •
10 JUDGE PETERS: I know Ray Lopez very
11 well. So, if he called Ray Lopez and asked for a
12 referral and we consider the 12 steps of AA -
13 MR. DANIELS: -- Yes.
14 JUDGE PETERS: -- iSl1't one of them
15 making amends?
16 MR. DANIELS: Yes, it certainly is and he -
17 JUDGE PETERS: -- And that has not been
18 done. Am I correct?
19 MR. DANIELS: It hasn't been done in the
2.0 sense that he didn't go to each one of the 46
21 defendants and say, "I'm sorry" to each one of those
22 people or write them a letter.
23 JUDGE PETERS: Okay, but aren't those the
24 people to whom one should mal(e amends?
25 MR. DANIELS: He is sorry, he is
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1 remorseful, he apologizes, he has apologized from

2 the get-go for what 11e did.
3 JUDGE PETERS: I understand. But they
4 don't know that, right?
5 MR. DANIELS: I believe they do, they
6 understand that.
7 MR. EMERY: Let me ask you· a question that
8 is, how -- I really want to hear a meaningful
9 distinction between this case and Blackburne.
10 MR. DANIELS: In Blackburne the Co~rt of
11 Appeals gave nlore or less the green light on single

12 incident cases to impose a very severe sanction even
13 though there hadn't been any what we call venal
14 intent, in other words, no corruption, no dishonesty,
15 none of those words that the cases use. We believe
16 that there are major differences between our situation
17 and in Blackburne. First of all, in Blackburne there
18 were many, many aggravating factors. Outside of
19 this incident itself, for which we make no excuse, for
20 which we do apologize, for which we are remorseful,
21 there weren't any other aggravating factors.
22 MR. EMERY: What were the aggravating
23 circumstances in Blackburne? I don't remember
24 that.
25 MR. DANIELS: Well, I believe Judge
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1 Blackbume thwarted a potentially lawful arrest. She

2 obstructed justice, she -
3 MR. EMERY: -- Nothing happened other
4 than on the particular day, that's right?
5 MR. DANIELS: That's right.
6 MR. EMERY: And in this case there were 46
7 events on this particular day. There were, may have
8 been two or three events that you could blame
9 Blackbtlme for, and there were 46 events.
10 Blackbume released somebody who ultimately was
11 innocent but should have been arrested 011 that
12 particular day. This gentleman, this judge
13 incarcerated 46 people who should have been
14 released. He deprived them of liberty, she granted
15 liberty. Why isn"'t Blackburne far, far less severe
16 than wllat this gentleman did?
17 MR. DANIELS: We consider Blackburne
18 more severe.
19 MR. EMERY: Why? Tell me why.
20 MR. DANIELS: First of all, this is one
-·21 incident that, yes, affected 46 people. It happened on
22 one day over two hOtlrs. In Blackburne she gave the
23 police a tough time. In Blackburne she was
24 adversarial to the police, at least that's the way I read
25 that decision. The court officer in the courtroom
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1 cautiol1ed her not to do what she was doing, not to let

2 that guy slip out the back door.
3 MR. EMERY: Forty -- at least ten or twelve,
4 as I read the record, cautioned this judge that what he
5 was doing was unfair and unreasonable, and he
6 ignored that. The defendants themselves who had to
7 show a lot of COtlrage to speak up to a judge who
8 was putting them in prisol1 or jail.
9 MR. DANIELS: This judge was having
10 probably one of the most stressful evel1ts in his life.
11 He had had a rough marriage, he had had problems
12 with his marriage, he had had difficulties. It was a
13 situation tllat llad built up over the years. And on .
14 this day when he came in there, lil(e they say, it was
15 the straw that broke the camel's back when that cell
16 phone went off. And-
17 mDGE PETERS: -- You know, I read a lot
18 of this material, but I don't understand, can you
19 describe "rough marriage" for me now? I'm sorry I
20 keep asking for definitions, but we're on different
21 pages and I want to try to get on your page. What
22 about his marriage was rough?
23 MR. DANIELS: He was living with a wife
24 that he'd been married to for 22 years. She was
25 difficult for him to communicate with, he w.as having
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1 trouble with her, he tried to talk to her. There wasn't

2 any warmth, there was little intimacy. She would not
3 act as a normal husband and wife would with him,
4 and he had a lot of problems with that. He described
5 it as being almost like roommates. He said, "I would
6 come home, we barely talked. All I had in my life"-
7 JUDGE PETERS: -- I have to tell you this,
8 Ithere's a lot of married people that are exactly lil<:e
9 that -
10 MR. DANIELS: -- I understand -
11 JUDGE PETERS: -- and they don't Ptlt 46
12 people in jail.
13 MR. DANIELS: I understand that.
14 JUDGE KLONICK: Mr. Daniels, he handled
15 some cases that day where people had allegedly
16 violated the terms and conditions of the program,
17 and he was deliberate enough apparently to release
18 those people. Was he not?
19 MR. DANIELS: Yes, he was and that, Judge
20 Klonick, I suggest may in some respects prove our
21 point that here's a guy who never in all his years had
22 any trouble before on the bench. Model judge,
23 exemplary judge, great background, great everythil1g.
24 That day he's handling the court without any
25 problems, and all of a sudden the cell phone went off
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1 and -
2 JUDGE KLONICK: -- But my p_oint, Mr.
3 Daniels, is that his marriage wasn't bothering him
4 for handling those cases.
5 MR. DANIELS: No, it wasn't but when the
6 cell phone went off, something happened to him and
7 all that stress that had built up, as the psychiatrist
8 explained, he calls it displacement. What he was
9 doing was trying to control something that at least he
10 had a shot at controlling because he couldn't control
11 his wife and he couldn't control his -
12 MR. EMERY: -- So, that could happen any
13 time. So, if he stays on the bench that could happen
14 any time whel1 he has troubles at home with one of
15 the people who he wants to be intimate with in his
16 life.
17 MR. DANIELS: We don't thinl( that there's
18 much possibility at all that anything like this is ever
19 going to repeat itself. We understand the
20 Commission has concerns of if they let him stay
2-1 whether this conduct will repeat. There's few
22 guarantees in life, believe me., I'm the first one that'll
23 tell you that. But in this case we do lrnow this: he's
24 sat on the bench for eleven years, nine years before,
25 two years sil1ce, and outside of this one incident
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1 notlling else like this has ever happened. He's

2 getting help now. He had problems.
3 MR. FELDER: Mr. Daniels, let me ask ·you a
4 question. I'm looking at your brief, and you point
5 out that he did not shout or yell at any of the
6 defendants who came after. He did not visibly lose
7 his temper and he appeared to be in control. Cannot
8 an argument be made that makes it even worse?
9 This is not somebody who acted ill hot blood; this is
10 somebody who acted in a rather calculated fashion.
11 MR. DANIELS: Well, this was his
12 demeanor. He did not lose control, he didn't shout,
13 he didn't yell. He was calm and cool, more or less,
14 while he was handling the court cases that day. But
15 again I bring up, Mr. Chairman, the fact that this was
16 two hours in eleven years on the bench. Well,
17 something, something had to happen to him there.
18 MR. FELDER: But Mr. Spector is on trial
19 because something had happened in five years -- five
20 minutes in his wllole life. I mean, we have to live
21 with the consequences of our act even if it's -
22 MR. EMERY: -- You don't think that-
23 MR. FELDER: -- a short period of time.
24 MR. EMERY: You don't think that Judge
25 Blackbume would have ever released anybody who
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1 the police were going to arrest again after that

2 incident, do you? And she's removed.
3 MR. JACOB: Was there any press coverage
4 on that day or thereafter?
5 MR. DANIELS: There was press coverage
6 on this case.
7 MR. JACOB: Okay. Did he make any
8 staten1ents to the press?
9 MR. DANIELS: No, he did 110t. No, he
10 didn't make any statements. There's another matter
11 with the Blackburne case, Mr. Emery: I know you're
12 cOl1cemed abollt it and you have every right to be.
13 And I lrnow, I read your dissent in the Blackburne
14 case. And it's not that I'm disagreeing with you on
15 your findings.
16 MR. EMERY: If I were right in the
17 Blackburne case, your guy might have a much better
18 chance.
19 MR. DANIELS: Well, thllt may be. Judge
20 Blackbume -- there was questions abollt her remorse,
21 whether her remorse was genuine and honest or
22 whether it was equivocal. I recall readil1g that in the
23 Blackburne case. It's different here.
24 MR. EMERY: Well, it'd be different if he
25 apologized to each of the 46 defendants.
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1 MR. DANIELS: Ifhe had the opportunity to,

2 believe me he would have. He would have gone
3 over -
4 JUDGE PETERS: -- I'm sorry. I have to go
5 back to remorse again.
6 MR. DANIELS: I understand.
7 JUDGE PETERS: The feeling I get, and
8 maybe you can help me move off this feeling -
9 MR. DANIELS: -- I'll try to.
10 JUDGE PETERS: -- my feeling that I get
11 from this record is that the judge was remorseful
12 because he felt sorry for himself because he messed
13 up and his reputation was destroyed. I don't get the
14 feeling that he felt remorseful toward tIle individuals
15 whose rights were so egregiously violated.
16 MR. DANIELS: Maybe it's our failure to
17 malce sure that the record expressed that clearly.
18 JUDGE RUDERMAN: Are we going to hear
19 from the judge?
20 MR. DANIELS: You certainly are, yes, yes.
21 Yes, you will judge. Yes. He has every intention of
22 appearing before you. He's here to answer all of
23 your questions. He feels deeply sorry for what he
24 did and apologetic to all of these individuals, all 45
25 or 46 of them. And agail1, and 110t to sound like a
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1 broken record, but if he could go to each one and

2 visit them at their home, shake their hand, say, "I'm
3 sorry for what I did. I had a very, very tough
4 n10rning. It was problems with my wife, whatever,
5 stress, tension, displacement, whatever you want to
6 call it. I lost it that day and I'm sorry and I
7 apologize." Btlt it's the one and only time in an
8 otherwise unblemished career on the bench. Be has
9 l1ever, ever had any difficulties before. And he
th
10 called Ray Lopez on Monday, the 14 ; he was
11 referred to Dr., ; he met witl1 Dr. ; he's
12 met with Dr. . He's still been in counseling;
13 he's been in coul1seling right along. He meets with
14 the doctor once a month; he's doing fine. He sits on
15 the bench now; he handles a full calendar, no
16 incidents, no problem, no trouble, and he lmows he's
17 under a microscope. He has an outstanding track
18 record, and I tl1ink it's important for the Commissiol1
19 to consider what other judges and otl1er people have
20 said about him.
21 He certainly didn't have any head start in life.
22 He started out at a housing project; in fact, he's listed
23 on the project's wall of fame. Karyn DeGregorio,
24 she testified, she was a witness called by Mr. Postel.
25 She's beel1 a court clerk for 36'years in Niagara
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1 Falls, she's now since retired. She's seenjudges

2 come and go. She's seen them all. She had nothing
3 and I repeat nothing but high praise to say about
4 Judge Restaino.
5 mDGE KONVISER: She also said he was
6 totally in control as he was committing these
7 individuals. She said that.
8 MR. DANIELS: Yes, she did. She said that
9 he didn't shout, he didn't yell. That's part of his
10 personality. But as Dr. explained that he was
11 still ul1der enormous stress and tension and problems
12 and that's what caused him to do what he did. That's
13 why he lost it that day. And Ms. DeGregorio said
14 that cell phones had gone offbefore, and whel1 those
15 incidents would occur, they'd always be handled
16 appropriately. So, again, to us -
17 MR. EMERY: -- But they were always
18 handled in the past, as I read the record, they were in
19 the past he'd always been successful at finding the
20 cell phone. Isn't that correct? Somebody would
21 reveal -- tum the cell phone over to one of the court
22 officers and it would be taken into -- there was never
23 a situation he was presented with where his object of
24 attempting to cOl1trol the cell phone ringing had ever
25 been frustrated before.
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1 MR. DANIELS: I do know that other

2 incidences had occurred with cell phones, that they
3 have a system, the court officer will go over there,
4 try a11d locate it and talce care of it. I'm not certain
5 that that occurred each and every time. But the point
6 we want to make is that cell phones had gone off
7 before, that nothing else ever happened, nothing that
8 even came close to this. 111 fact, again, I don't want
9 to sOllnd like a brolcen record, but eleven years on the
10 bench -- you can just start with the nine before this
11 incident -- thousands and thousands of cases, cell
12 pll0ne incidents, cell phones had gone off, thousands
13 of defendants before him, and never once anything
14 tllat came close to this.
15 mDGE PETERS: I orily have one more
16 question. I'm sorry for asking so many.
17 MR. DANIELS: Ask all you want.
18 mDGE PETERS: Ifwe censure this judge"
19 instead of removing him, what message are we
20 giving the 46 people that were incarcerated?
21 MR. DANIELS: You're disciplining him,
22 you're sanctioning him, he's held up to ridicule,
23 embarrassment. They know that 11e is remorseful for
24 what he did to them.
25 MS. DIPIRRO: How?
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1 JUDGE PETERS: How do they know that?

2 MR. DANIELS: They're aware of that. They
3 know. The community lmows. People lrnow. I
4 lrnow he didn't go to each one and write a letter, I
5 know that. And I'm sure this Committee might have
6 felt better -
7 MR. COFFEY: -- Trouble is they may not
8 lrnow why he is remorseful and they figure he's
9 remorseful because he's got ajam with the
10 Commission.
11 MR. DANIELS: No, he's remorseful-
12 MR. COFFEY: -- Which is one reason, by
13 the way, he should be remorseful.
14 MR. DANIELS: Well, that's a-
15 MR. COFFEY: -- I mean, I understand as an
16 advocate you've got to argue this and, believe nle, I
17 can appreciate that. But what do we do whell people
18 say, "What are these idiots doing leavillg the man on
19 the bench? He's put 46 people in jail without a
20 reason." Which everywhere in Niagara and every
21 other place in the state, looks at this and says, "What
22 are they doing?" How do we answer that?
23 MR. DANIELS: He's too good a judge to
24 remove. He's got an excellent reputation; he's one
25 of the best liked judges ill western New York.
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1 Everyone, everyone has high praise for him. There

2 are no complaints about him. He does a great job,
3 look what his boss said, look what other judges said
4 about him.
5 JUDGE KLONICK: Mr. Daniels, you're a
6 criminal defense attorney, right?
7 MR. DANIELS: I've been there, yes, sir.
8 JUDGE KLONICK: Okay. As a judge I
9 believe one of the greatest responsibilities a judge
10 has is the ability to take away someone's liberty.
11 Would you agree that that's the judge's greatest
12 responsibility, a decision whetller to do that or not?
13 MR. DANIELS: I think sentencing is the
14 toughest job that any judge has to perform. Pllttil1g
15 someone in j ail is -
16 JUDGE KLONICK: -- And involved in that
17 is taking away a person's liberty.
18 MR. DANIELS: Absolutely.
19 JUDGE KLONICK: Thank you.
20 MR. DANIELS: And that was done here for
21 a few hours to some people. And that was an
22 outrageous thing to do, we make no excuses about
23 that. We know that. It was an abuse ofjudicial
24 discretion; it's all of-the above. We'-re not here to
25 paint another picture on it. We assert to the
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1 Commission that this was a couple of bad hours in an

2 otherwise exemplary judicial career. And some of
3 us, getting bacl( to the matrimonial situation, a lot of
4 people have problems at home. Whether it's the
5 wife's fault, the husband's fault, you leave those at
6 the doorstep when you go to worl(, and a lot of
7 people can handle it. And we asked Dr.
8 about that too, when he testified. Whatever the
9 problems are at home you leave them there.
10 MR. FELDER: Excuse me, sir. You've got
11 ten minutes left. Do you want to save any part of
12 that to do a rebuttal?
13 MR. DANIELS: No.
14 MS. DIPIRRO: Could I ask you one
15 question?
16 MR. DANIELS: Yes.
17 MS. DIPIRRO: I really would like to give the
18 judge the benefit of the doubt. I hate to see an
19 individual's career ended over one situation. But,
20 according to what I've read, he had these marital
21 problems for a long time prior to tllis incidel1t. He's
22 still married; there's been no indication that those
23 problems have been resolved. If that, in fact, is the
24 cause of this, and I question whether it's the cause or
25 it's the only thing you can attribute this bizarre
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1 behavior to, how can we assume that it won't happen

2 again?
3 MR. DANIELS: Because he's getting help
4 now, Ms. DiPirro. He meets with Dr. , WllO'S
5 a very, very well qualified and experienced mental
6 health professional, forensic psychiatrist -- a
7 therapist. He meets witll him regularly. He'll tell
8 you himself, he's doing much, much better. Things
9 have alleviated somewhat more at honle. He's
10 getting along better with his wife. He's doing very,
11 very well personally, professionally, and we see
12 very, very little chance, remote at all, if any, that
13 sometlling like this will happen.
14 MS. DIPIRRO: Who attributed this behavior
15 to his marital stress? Was it the attorney, himself or
16 the counselor? I mean, is it possible, we've all done
17 bizarre things in our life -
19 MS. DIPIRRO: -- that we can't attribllte to
20 something, that you just back filled causes and said,
21 "Well, this was going on, this was going on and I
22 think it must have contributed to a breal(down or a
23 blip in my sanity or discretion"?
24 MR. DANIELS: This, Ms. DiPirro, is not a
25 case of where we came up with some excuse to try
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1 and explain what happened. Based on my

2 conversations with the judge, and I have no reason to
3 doubt what he's telling me, he had had stressful,
4 tension-filled problems with his wife for quite some
5 time. He's just tIle type of guy that couldn't handle
6 it. Others can, they let -- again, as we've said they
7 leave it at the doorstep and they go to work. He
8 couldn't handle it.
9 JUDGE RUDERMAN: Didn't he leave it at
10 the doorstep for years before this il1cident?
11 MR. DANIELS: Well, this incident was a
12 little bit different.
13 JUDGE RUDERMAN: It was only a cell
14 phone.
15 MR. DANIELS: I -- it was just a cell phone, I
16 understand that. But the problems that he had with
17 his wife apparently from what we understand had
18 been building up for years. It's lcind of Iilee taking a
19 piece of wood and you can paint.lacquer on it and it
20 builds up layer after layer. And he went to court -
21 JUDGE PETERS: -- Isn't it all abOtlt
22 control?
23 MR. DANIELS: Yes, it is all about control.
24 And he lost control.
25 JUDGE PETERS: No. I mean, isn't it all
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1 about his need to exercise that extensive, rigid type

2 of control because in his marriage he was unable to
3 make any changes?
4 MR. DANIELS: In his marriage, he couldn't
5 control the situation.
6 JUDGE PETERS: Thank you.
7' MR. DANIELS: He couldn't control his
8 wife, she wouldn't listen to him.
9 JUDGE PETERS: I understand.
10 MR. DANIELS: He would try to talk to her.
11 JUDGE PETERS: So, here he can exercise
12 control over people's lives.
13 MR. DANIELS: Well, and he does a very
14 goodjob at it. He's been in the DV court for five
15 and a half years. All these domestic violence
16 defendants had good things to say about him. They
17 said he always acted reasonably and prudently and
18 with good judicial temperament, "every time I was in
19 tl1ere, every time I appeared before him," and then
20 that cell phone went off and -
21 MR. EMERY: -- You know, the problem
22 with this explanation, this psychological explanation,
23 at a core level is that if this is genuinely a basis to
24 mitigate sanction against a judge, how can it possibly
25 be not a basis to mitigate sanction against any
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1 number of poor and deprived people, many of whom

2 were before hinl on that very day, who had all kinds
3 of desperate needs to tal(e care of their mother, to
4 take care of their daughter, to have surgery
5 scheduled, to do all the kinds of things that were
6 personal matters in their own lives that were putting
7 great pressure on them, that he ignored? How can it
8 be that we can operate in a judicial system that takes
9 cognizance of these things when, you know, Judge
10 Konviser and Judge Ruderman and others have to
11 sentence people, who have excuses which are so far
12 more compelling than marital difficulties than -- and
13 here we have a judge who's the ultimate deterrable
14 person, and you 11ave these poor people who are very
15 difficult for them to restrain their own actions and
16 have such terrible problems in their home life. I just
17 don't see how with a straight face you call argue that
18' this judge had marital problems which caused this
19 and that we should take that into account. I don't get
20 it.
21 MR. DANIELS: Because nothing like this
22 ever, ever happelled before. He was a judge for
23 years, he worked in the DV court, he worl(ed in
24 criminal courts, he worked in the civil courts, and
25 never, ever any other incident like this ever happened
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1 before. So, Mr. ETIlery, it's just our point that

2 something must have happened to cause him to,
3 again, lose it on that day. I'm not -
4 JUDGE PETERS: -- There was another issue
5 that I brought up with Mr. Postel that I haven't
6 mentioned with you -
8 JUDGE PETERS: -- and that was the concern
9 I had with the judge not only incarcerating 46
10 people -
12 JUDGE PETERS: -- but he locked down the
13 courtroom. He el1tered an order when he took his
14 little recess that no one was permitted to leave. Am I
15 correct?
16 MR. DANIELS: Yes, he did. In a DV court
17 everyone stays throughout the entire -
18 JUDGE PETERS: -- I understand that, but
19 it's also a court open to the public like any other
20 court.
21 MR. DANIELS: Yes, it is.
22 JUDGE PETERS: Which means individuals
23 could come and go. Citizens could come and go,
24 witnesses could CO·TIle and go, girlfriends, boyfriends,
25 children, mothers, fathers, reporters from the
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1 newspaper.
2 JUDGE KLONICK: Court watchers.
3 JUDGE PETERS: Court watchers.
4 MR. DANIELS: Right.
5 JUDGE PETERS: He closed down and
6 locked down that court refusing to pennit anyone to
7 leave. Am I correct?
8 MR. DANIELS: That's true.
9 JUDGE PETERS: And it is a violation to
10 close the court to refuse people to enter. Correct?
11 MR. DANIELS: Yes, it is. He acted
12 irrationally; I'm not saying 11e didn't. There's no
13 question about it.
14 JUDGE PETERS: So, he not only acted
15 irrationally to the 46 people he arrested -
16 MR. DANIELS: -- Yes, he did.
17 JUDGE PETERS: -- but he acted irrationally
18 to every single person in the courtroom by refusing -
19 I mean, he affected their liberty.
20 MR. DANIELS: He had two hours in his life
21 if there's anything he could do -
22 JUDGE PETERS: -- Okay.
23 MR. DANIELS: -- any wish he could ever -
24 JUDGE PETERS: -- So, you understand that
25 it's not just the 46, it's the 46 plus however many
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1 people were in tIle room.

2 MR. DANIELS: I'nl not debating that.
3 JUDGE PETERS: Okay.
4 MR. DANIELS: Yes, he did. I mean, for
5 what he did was inexcusable, it was outrageous, it
6 was an abuse ofjudicial discretion.
7 MS. DIPIRRO: Can we hear from him?
8 MR. COFFEY: So, what you have is -- as I
9 understand your position it's lcind of like a
10 psychological blackout for two hours.
11 MR. DANIELS: Well, I don't know if I go

12 that far.
13 MR. COFFEY: --Well-
14· MR. DANIELS: -- But, he-
15 MR. COFFEY: -- Well, he can't explain, I
16 mean, and I was trying to -- and I'm not trying to say
17 to help, but I mean it's two hours, you're telling me
18 he can't explain it, well, it nlay not be a blackout, but
19 it's certainly something -
20 MS. DIPIRRO: -- Could we ask him to
21 explain it? Could we hear -
22 MR. EMERY: We will.
23 MR. DANIELS: The psychiatrist explained it
24 or at least he tried to explain it. And he talks about
25 tllis tenn of displacement. And essentially what he
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1 was saying is that he couldn't control his situation at

2 home, and when the cell phone went off that was like
3 the old proverbial final straw, and he said, "You
4 lrnow, I'm going to control this situation. I can't do
5 it at home so I'm transferring my emotions now to
6 the courtroom and here I'm the boss, I'm the judge
7 and I'm going to do it." And essentially, that's pretty
8 much what happened. And he acted irrational,
9 there's no question about it. But, again, nine years
10 before, spotless record, never a problem. Two years
11 since, no. And his replltation as a judge is so
12 inconsistent and his record as a judge is so
13 incol1sistent with these two hours, that's why we ask
14 you to take all that il1tO consideration. And we just
15 feel he's such a good judge that in spite of what
16 happened, and we, again, believe we provided an
17 explanation for it, that he should not be removed.
18 All these otller judges who came in to testify
19 for him, they gave hinl high praise. And I'm not just
20 talking about character witnesses that you can parade
21 in from time to time. But Judge Griffith, who's the
22 supervising Family COllrt Judge in the 8th Judicial
23 District and would assign him to Family Court cases,
24 talked about.how Judge Restaino had handled the
25 Family Court calel1dar for another judge who had
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1 passed away. And Judge Restaino went in there and

2 handled that calendar, and when another judge was
3 elected to that position, that judge had some
4 problems of handling the calendar, it's not because
5 he was a fonner legislator, but he had trouble
6 handling the calendar and Judge Restail10 went in
7 and did a great job. Judge Kloch, who's the Chief
8 Criminal Court Judge in the 8th Judicial District, had
9 high praise for him. Judge O'Donnell, who is a
10 former domestic violence coordinating judge. Cathy
11 Quattrini, who is the court clerk in Family Court,
12 Judge Restaino was assigned to worl, there for a
13 couple years. She said the guy did a terrific job. She
14 even remembered that he didn't have a legal assistant
15 with him and that he had to do his own research.
16 She described him ~s a hard-working, ambitious,
17 cooperative. The bureau chief assistant district
18 attorney for Niagara Falls City Court, she also
19 testified, Mary Jan~ Bowman, and she said she
20 appeared in front of Judge Restaino' every day, five
21 days a week for three years. Well-liked.
22 MR. JACOB: Do you have a single statement
23 from any of the 46 people who were incarcerated?
24 MR. DANIELS: Yes-
25 MR. JACOB: A single statement.
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1 MR. DANIELS: Yes, I do.

2 MR. JACOB: Wllere is it?
3 MR. DANIELS: We called one of the
4 witnesses to testify for us.
5 MR. JACOB: One?
6 MR. DANIELS: Well, Mr. Postel called
7 several and -
8 MR. JACOB: -- Yes, what was the nature of
9 that statement? What did it -
10 MR. FELDER: After you answer his question
11 YOllr time is up, I'm sorry.
12 MR. JACOB: Yes, I just need to-
13 MR. DANIELS: We called Mr. Guillenno
14 Martinez to testify. He was one of the gentlemen
15 that was locked up. And the reason we called him
16 was because he had good things to say about Judge
17 Restaino. Mr. Martinez was in the dOlllestic violence
18 part, he was a defendant, and he explained to the
19 referee how Judge Restaino had encouraged him to
20 get his GED or equivalency diplonla, which he did
21 earn, and then after this incident, in 2006, Judge
22 Restaino was sitting in Traffic Court, and Mr.
23 Martinez happened to be there because he had a
24 ticlcet. And he appeared before Judge Restaino al1d
25 he remembered Judge Restaino and Judge Restaino
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1 remembered him, and he thanked the judge for

2 11elping him.
3 MR. EMERY: Did the judge apologize to
4 him on that occasion?
5 MR. DANIELS: They had a very amiable
6 conversation.
7 MR. EMERY: I understand, but did he
8 apologize when he had an occasion to come in
9 personal contact with one of the people he put in jail
10 wrongfully?
11 MR. DANIELS: I don't blOW ifhe
12 specifically did for the record, but I don't know if it
13 was necessary -
14 MR. JACOB: -- Mr. Emery is touching UpOll
15 a very important point.
16 MR. DANIELS: Yes, he is. Yes, he is.
17 MR. JACOB: He's touching upon a point
18 that says that if I were lawyering this case -
19 MR. DANIELS: -- Yes
20 MR. JACOB: -- this is what he's saying, I
21 would have come in here with the one argument in
22 all of this world regarding this case can possibly
23 exist, that in the two years since the incarceration of
24 46 innocent people, he went from person to person
25 and not only wrote to them but personally
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1 apologized. There seems to be some inability to just

2 confront the person who was wronged and say,
3 "Here's what I did wroIlg, I'm sorry, please accept
4 my apology." That's penance, that's what we have
5 to do.
6 MR. DANIELS: Yes, sir.
7 MR. JACOB: Alld what happened here?
8 Why is there such an inability here for you to be able
9 to say that he apologized to anybody? I can't
10 understand that.
11 MR. DANIELS: He has apologized. He is
12 apologizing. Again, if they were here, he would
13 apologize to each Olle of them.
14 MR. JACOB: Yes, but -
15 MR. EMERY: --If I remember -
16 MR. JACOB: -- no, no, no, no, no. I'm
17 talking about being proactive in seeking them out -
18 MR. DANIELS: -- I-
19 MR. JACOB: -- finding them and
20 apologizing.
21 MR. DANIELS: I don't know, Mr. Jacob,
22 how logistically he would have been able to do that.
23 In hindsight -
24 JUDGE KONVISER: Well, Mr. Postel called
25 several of his witnesses. Did he have any contact at
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1 the hearing with Mr. Hinman or Hamilton or Jones

2 or Lafreniere? I mean, they testified. Did-
3 MR. DANIELS: -- Yes, they all testified.
4 JUDGE KONVISER: And was there
5 conversations apologetic or otherwise between the
6 witnesses and the respondent?
7 MR. DANIELS: I don't know if he had the
8 opportunity.
9 MR. EMERY: And Martinez did not say as I
10 remember in his testimony that he thought this was
11 anything other than unfair and terrible that he was
12 put in jail that day, did he? He wasn't excusing the
13 judge even though -
14 MR. JACOB: -- That's my recollection.
15 MR. EMERY: -- he recognized the fact that
16 the judge had helped him in some -respect. He was
17 still quite angry abollt having had this happen.
18 MR. DANIELS: No, he wasn't pleased about
19 it but-
20 MR. EMERY: Yes.
21 MR. DANIELS: -- he had good words to say
22 about the judge.
23 MR. EMERY: I understand that.
24 JUDGE KONVISER: He did. He said that
25 your client had helped him.
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1 MR. DANIELS: He did. He said he helped

2 and he encouraged him.
3 MR. FELDER: You're way over your time.
4 Thank you.
5 MR. DANIELS: Ol(ay.
6 MR. FELDER: We're going to hear from the
7 respondent?
8 MR. DANIELS: Yes, respondent's here.
9 JUDGE RESTAINO: Good afternoon. I
10 know a lot has been said about apologies, and first as
11 would be my -- ordinarily -- my approach, I would
12 lil(e to first extend my apology to each of the
13 members of the Commission. I blOW that it wasn~t
14 easy; I'm sure, to have to read this transcript and
15 have to deal with this matter.
16 I want to get to one thing specifically. I have
17 some other things that I'd like to say and there's one
18 thing I'd lil(e to get to specifically. But a v~riety of
19 the Commissioners, Mr. Chairman, have asked about
20 apologies. And I did not have the opportunity with
21 regard to an apology to the five individuals who
22 testified at the hearing. They were obviously kept
23 from me, called out, and then released. So I didn't
24 . have the chance to do that at that point. With regard
25 to a couple of them, specifically, Mr. Hinman, who I
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1 believe did testify, I ultimately saw Mr. Hinman, had

2 the opportunity -- when I saw him I stopped my car, I
3 got out and I went over to Bobby and I told him how
4 sorry I was for wllat I had done. And he told me that
5 his principal reason for coming to testify was that he
6 didn't thin1( that some of the facts that were being
7 said were accurate. And that he just wanted to make
8 sure that things were accurate. He said that he
9 thought people were saying some things that weren't
10 accurate.
11 JUDGE PETERS: In other words, you're
12 saying that his statement was that he came to testify
13 to clarify the situation.
14 JUDGE RESTAINO: That's my
15 understanding, judge.
16 JUDGE PETERS: Did he say -- did he accept
17 your apology?
18 JUDGE RESTAINO: Yes, lle did. As a
19 matter of fact, his last words to me were, you know,
'20 "We don't have any problems." And I said, "Well
21 Bobby, I hope you don't have any problems with
22 me."
23 JUDGE PETERS: Well, you know, it's really
24 nice that he accepted your apology.
25 JUDGE RESTAINO: I know it is.
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1 JUDGE PETERS: Because you certainly

2 treated him ill all offellsive manner. Correct?
3 JUDGE RESTAINO: Absolutely.
4 MR. EMERY: What about -
5 JUDGE PETERS: -- And what about all the
6 rest?
7 MR. EMERY: What about Martinez in
8 particular? When you were in Traffic Court sitting
9 in as a judge and he came in before you, did you
10 apologize to him?
11 JUDGE RESTAINO: Well, Mr. Emery, I did
12 not do it in the open court.
13 MR. EMERY: Did you do it at all?
14 JUDGE RESTAINO: Yes, I did. I had the
15 opportunity -
16 MR. EMERY: -- When?
17 JUDGE RESTAINO: When?
18 MR. EMERY: Yes.
19 JUDGE RESTAINO: Mr. Martinez was
20 remaining out in the outer courthouse area.
21 MR. EMERY: This was at the hearing?
22 JUI)GE RESTAINO: No, no, at -- well, prior
23 to the hearing I had spoken to Guillermo several
24 times. I never really engaged in a direct discussion
25 with hinl about the matter because, you know, we
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1 were still waiting for the hearing to commence.

2 JUDGE PETERS: Did you preside over a
3 traffic case before the hearing was held?
4 MR. EMERY: Yes.
5 JUDGE PETERS: Involving him?
6 JUDGE RESTAINO: Yes.
7 MR. DANIELS: In 2006.
8 JUDGE PETERS: Why wouldn't you have
9 recused yOllrself since he was a witness in a
10 proceeding against you?
11 JUDGE RESTAINO: Well, he was actually a
12 witness that we were called.
13 JUDGE KONVISER: It was his witness. He
14 called him.
15 JUDGE KLONICK: He called him.
16 JUDGE RESTAINO: We called Mr.
17 Martinez.
18 JUDGE PETERS: Oh, okay.
19 MR. EMERY: Well, even so.
20 JUDGE PETERS: Well, even so, he's still a
21 witness at a proceeding against you.
22 JUDGE RESTAINO: I understand, and I
23 didn't -- I guess I just didn't consider that. I-
24 . JUDGE PETERS: -- Do you a~ee that it
25 would have been appropriate to recuse in that case?
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1 JUDGE RESTAINO: As I sit here, stand here

2 and you're raising tllis to me, yes, I do, judge. It
3 I would have been better for me to not involve myself
4 with any of those foll(s.
5 JUDGE PETERS: Because actually, you
6 know, given what you have done to him, which was
7 so offensive, you would l1aturally want to be nicer to
8 him the second time around to mal(e up for the
9 terrible thil1g you did to him before, which means
10 you might not be objective.
11 JUDGE RESTAINO: I would be objective. I
12 understand what you're saying. And I can tell you,
13 judge, that in large measure with regard to many of
14 these individuals, one of the reasons why I didn't
15 talk with anyone tllfoughout the period was because
16 the hearing hadn't occurred. And so I was really sort
17 of navigating between what I could do and what I
18 couldn't do.
19 MR. COFFEY: Well, 1 assume at that point,
20 representing by an attorney, when we have no right
21 to know what advice is given by your attorney, that
22 there may have been some discussions as to what
23 you should do. So I assume in part what you're
24 doing is motivated by discussions with your attorney.
25 JUDGE RESTAINO: That's correct, Mr.
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1 Coffey.
2 JUDGE PETERS: I need to go way back.
3 MR. COFFEY: So, if you write a letter to
4 the, excuse me, if you write a letter to all these
5 defendants apologizing, that'd be something that had
6 to go through your attorney, I'd presume. I mean,
7 you as a lawyer would know that, right?
8 JUDGE RESTAINO: Well, yes, I don't know
9 the exact answer to that question, except to say that,
10 yes, if my attorney is engaged in a matter for me
11 right at that point and these are individuals who are
12 the subject of it, yes, I would suspect that's there
13 probably some difficulty with me communicating
14 directly with them and it would 11ave to go through
15 my attorney.
16 JUDGE PETERS: I need to go way back.
17 JUDGE RESTAINO: I'm sorry, judge. Yes,
18 judge.
19 JUDGE PETERS: You know all about
20 making amends, don't you? Obviously, you're in the
21 domestic violence program.
22 JUDGE RESTAINO: Yes, I do, judge.
23 JUDGE PETERS: You lmow Ray Lopez, you
24 lmow about amends.
25 JUDGE RESTAINO: Yes, I do, judge.
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1 JUDGE PETERS: I want to go back to long

2 before you had a lawyer ill this case.
3 JUDGE RESTAINO: Okay.
4 JUDGE PETERS: You didn't hire a lawyer
5 the day this happened, did you?
6 JUDGE RESTAINO: No.
7 JUDGE PETERS: Okay. So, it happened,
8 you put 46 people -- incarcerated 46 innocent people,
9 committed no crime. You didn't consider the
10 appropriate factors when you set their bail. It was all
11 a nlatter of control. Correct so far?
12 JUDGE RESTAINO: I was trying to control
13 the situation, yes, judge.
14 JUDGE PETERS: Okay, so then you realized
15 at sonle point that you'd done something terribly
16 wrong. Correct?
17 JUDGE RESTAINO: Yes, I did.
18 JUDGE PETERS: And in fact, you evell told
19 your administrative judge you had. Correct?
20 JUDGE RESTAINO: My administrative
21 judge, yes.
22 JUDGE PETERS: Yes.
24 JUDGE PETERS: Okay.
25 JUDGE RESTAINO: But I talked to her, yes,
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1 yes, I did.
2 JUDGE PETERS: Okay. So why not, long
3 before you hired a lawyer and long before the
4 Commission on Judicial Conduct got involved in
5 this, didn't you communicate to each individual and
6 apologize for what you did, either by writing them a
7 letter or by picking up the phone, in any way, shape
8 or form?
9 JUDGE RESTAINO: In fact,judge, I had
10 initially right after the incident, I did contact Mr.
11 Lopez as you indicated. Al1d from that point forward
12 was engaging in what I thought would be getting
13 some scheduled help for myself. Subsequent to that,
14 I contacted Mr. Daniels. So, it might not have been
15 -- I think it might have been a day or two after I
16 called Mr. Lopez. I had wanted to actually get back
17 in on the 18th of March for the purposes of
18 addressing the participants in the program.
19 JUDGE KONVISER: That was one week
20 after this incident.
22 JUDGE KONVISER: And you me·et once a
23 week, is that -
24 JUDGE RESTAINO: -- Yes, judge.
25 JUDGE KONVISER: Okay.
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1 JUDGE RESTAINO: The program met every

2 week, but not every defendant came every week.
3 JUDGE KONVISER: Okay.
4 JUDGE RESTAINO: I want to mal(e that
5 clear. And one of the things that I was advised was
6 that it wouldn't be appropriate for me to be in the
7 company of those same individuals. And so I didn't
8 do that.
9 MS. DIPIRRO: Advised by who?
10 JUDGE RESTAINO: In part by counsel as
11 well as by the Chief Judge of the Court.
12 JUDGE PETERS: What do you mean by
13 counsel? Your lawyer?
15 JUDGE PETERS: You had a lawyer already?
16 JUDGE RESTAINO: Well, the 18~h was the
17 day I was going to go in. I thought, I suspected -- I
18 contacted, and I don't know the exact day, but I think
th th
19 I cOl1tacted Mr. Daniels the 15 or 16 •
20 JUDGE PETERS: So, you had an attorney

21 within a week of the incident?
22 JUDGE RESTAINO: I was advised -- in fact,
23 the information that came to me, yes, judge, the
24 information that came to me was that I needed to get
25 an attorney. And so after I talked to Mr. Lopez', I
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1 contacted Mr. Daniels. In terms of writing to them,

2 while I certainly could have, although given the
3 restrictions that I just discussed a few minutes ago on
4 my ability to do that, the records at the Niagara Falls
5 City Court in terms of addresses are sketchy at best.
6 People do change their address. Those of you that
7 are familiar with those types of the local criminal
8 courts, it isn't uncommon for that to happen. And so
9 it would be difficult for me to simply rely upon the
10 addresses at the courthouse.
11 MS. DIPIRRO: Can I interrupt you, judge?
12 JUDGE RESTAINO: I'm sorry, yes.
13 MS. DIPIRRO: Could you just tell us in your
14 own words, forget all that's written here -
15 JUDGE RESTAINO: -- Yes.
16 MS. DIPIRRO: -- just tell us from your heart.
17 What do you think triggered what happened that
18 day?
19 JUDGE RESTAINO: I know -
20 MS. DIPIRRO: -- I mean, did you com.e -
21 did you wake up feeling -- did you walk into the
22 courtroom -- you lmow, what triggered actually what
23 happened at that point?
24 JUDGE RESTAINO: In my -- in my personal
25 life, ill my personal life, I'd been married at that
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1 point to my wife, as counsel said, for 22 years. All

2 of it hadn't been a problem. All of it had not oeel1 a
3 problem. And as you have in the record, you're
4 aware of certain things that occurred during the
5 course of my marriage for which I wasn't proud of.
6 And I had believed, in fact, that my wife and I had
7 gotten through that. But over the more recent period
8 and as I think I may have said, 2002 or 2003, the
9 relationship between my wife and I had in fact
10 deteriorated. It was not even much of a relationship.
11 MS. DIPIRRO: What happened that day?
12 JUDGE RESTAINO: I will get there, and
13 I'm sorry. On that day, when I got up that morning,
14' it had beel1 lilce perhaps the last three years of 52'
15 weelcs of mornings· where there is really there was
16 not nluch between, no communication, no nothing. I
17 was existing essentially alone. And I 11ad been
18 searching throughout that period for what the
19 problem was. Was it a revisiting of the things that I
20' had done? Did I -- was I somehow responsible for
21 it? And I had asked over that period of time for my
22 wife and I to get some help, and she wasn't receptive
23 to that, wasn't interested in that. All of that
24 throughout that entire period had weighed very
25 heavily on me. It was difficult every day. Every day
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1 was difficult.
2 JUDGE PETERS: Did you get help on your
3 own?
4 JUDGE RESTAINO: Excuse me?
5 JUDGE PETERS: Did you get help on your
6 own?
7 JUDGE RESTAINO: My wife had said tllat
8 -- and I'm going to tell you, judge, I was -
9 MR. FELDER: -- I'm sorry, judge.. At the
10 end of this whatever you're going to say, your ten
11 Ininutes are up.
12 JUDGE RESTAINO: Okay, I'm sorry. I had
13 just said today as a matter of fact that my wife many
14 times had responded to me, "If you think you need
15 some help go get it." And maybe it's my own
16 stubbornness, maybe it was my own sense that
17 somehow or another we had to do this together, and I
18 never did that. And I wish today as I stand here in
19 front of you now, I wished I would have done that.
20 Because I know, judge, I know, judge, that if I had
21 done that, I know that I wouldn't be here with you
22 foll(s today. I know now as I lool( at my relationship
23 with my wife and given the assistance through my
24 counseling with Dr~ , I know that I am better
25 on my end of the relationship. I don't blame my
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1 wife, I'm the one who's responsible, I did it. Thank

2 you, Mr. Chairman.
3 MR. FELDER: Mr. Postel, do you want to
4 tal<:e any part of your rebuttal time?
5 MR. POSTEL: I might. As you sit here, I ask
6 you t9 review the objective evidence set forth on the
7 record before you. That objective evidence is that
8 although respondent testified at the hearing to certain
9 marital strain, there's also unequivocal testimony
10 that he did not seek help at all during the period of
11 time when this strain was supposedly occurring
12 despite the fact that respondent sat in a part of the
13 court in which counseling is a major portion. At the
14 hearing, respondent testified it wasn't until he
15 personally went into counseling after this evel1t that
16 he recognized that counseling was okay. I submit
17 that that's not credible.
18 It's clear, Judge Peters, with regard to
19 ,respondent's statement to you that he hired an
20 attorney within a few days of when this event
21 occurred and that it's ul1questioned that he nlet with
22 that attorney, that attorney contacted both of these
23 doctors before respondent met with them a first time.
24 It;s unquestioned that in Or. ;s description of
25 what occurred and his discussion, about the marital
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1 strains he could himself in discussions with

2 respondent, and as respondent stated during cross
3 examinatioll, identify allY single or multiple -- any
4 instance at all of any event that led to that marital
5 strain. Furthermore, Ms. DiPirro, the testimony is
6 that there was no event in his marriage on that day
7 that led to tllis. So that Dr. had no basis for
8 his uncertainty as to what caused the marital strain,
9 llncertainty as to what led to the events on that day,
10 uncertainty built upon uncertainty.
11 In reviewing this question of marital strain
12 and stress, I ask you to remember the hundreds and
13 perhaps thousands of other judges in the state who
14 preside daily with their own personal stresses, and
15 stresses that exceed the type of stress that respondent
16 has described by leaps and bounds, without engaging
17 in misconduct of any nature, let alone outrageous
18 conduct of this llature. In evaluating the testimony
19 of the experts and in addressing Mr. Daniels'
20 discussion with you, he referred to displacement as
21 this concept as to why respondent did what he did.
22 On cross-examillation respondent's expert
23 acknowledged that displacement was not recognized
24 as a valid psychological condition pursuant to tIle
25 diagnostic and statistical manual DSM 4.
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1 Two other things, if I might, and they have to

2 do specifically with the defense. Respondent's
3 counsel comes before you and respondent's brief to
4 you talks -- and Mr. Coffey, you asked him why he
5 should be censured, what lcind of message that sends.
6 And Judge Peters, you said, "What lcind of message
7 does it send to the 46 defendants?" The message is
8 also, "What is it saying to the public to censure this
9 judge? What it is saying to the other judges and to
10 the working members of the legal system ofjustice,
11 the administration ofjustice system in this state?" It
12 sends completely the wrong message especially
13 when it's based on a defense that s~ys, "I'm too
14 good, I'm too smart, I'm too important," which is
15 what he's saying to you, "I've done too nluch."
16 MR. JACOB: Well, what if the judge were to
17 offer you or had offered you to apologize in person
18 and in writing, would you then agree to a censure?
19 MR. POSTEL: That's not something that we
20 could ever agree to. That's not part of the process
21 we would be involved in. That's a-
22 MR. JACOB: -- Well, suppose he had done
23 that before he came here, would your conclusion be
24 different?
25 MR. POSTEL: My conclusion would not be
70.
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1 different, although I think that this is an exacerbating

2 factor and it goes directly to your eVialuation of his
3 credibility as to -
4 MR. COFFEY: -- Yes, btlt you know what?
5 Here's the problem with that I have. And I disagree
6 I think with the other members. It sounds like you're
7 almost criticizing his attorney. We don't lmow what
8 advice or what discussion took place. We don't
9 know whether Mr. Daniels said, "Listen, before you
10 start getting into this, you know, and before you start
11 writing letters, we better be careful about this." We
12 don't know that.
13 MR. POSTEL: -- I'm not criticizing Mr.
14 Daniels. I'm saying that -
15 MR. COFFEY: -- So, I don't think it's a
16 credibility question -
17 MR. POSTEL: -- he had all opportunity
18 within a few days to take action and he didn't. He
19 can't be given the benefit of that doubt in this
20 instance because of words counsel mayor nlay not
21 have said to him.
22 MR. COFFEY: But in fairness, you indicated
23 before even if he had stood up in the court and said,
24 "I'm sorry," you'd say, listen, the very act ill and of
25 itself is a res ipsa questioll. In other words, that act
71.
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1 in of itself of incarcerating 46 innocent people is

2 enough to remove a judge.
3 MR. POSTEL: I agree with that, but I think
4 tllat it's an important factor. Lastly, let me say this,
5 respondent places a great deal of emphasis on his so
6 called spotless record. As I said, to allow him -- to
7 censure him on the basis of his argument on "too
8 good, too smart, too important" reinforces the type of
9 arrogance that we saw on this day, it se11ds the wrong
10 message. But lastly, it's this, a spotless record. I
11 recommend -- and the extensive character testinl0ny
12 -- I recommend to you reading during your
13 retirement to consider this case -- your deliberations,
14 three cases. First, Matter ofSpector. The Court of
15 Appeals in its very first case, anticipating this type of
16 defe11se, said this type of public service, this type of
17 record, his action in other cases is not an excuse. In
18 its wisdom in its first 'Case it said that. It reinforced
19 that nlessage twice more. 111 Matter ofEsworthy, a
20 judge 40 years of an unblemished record, the judge
21 was removed despite those 40 years of an
22 unblemished record. And in Matter ofShilling, the
23 Court of Appeals specifically said to us character
24 evidence of this nature is of slight value where the
25 evidence we have here is cumulative and reliable.
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1 Thank you.
2
MR. FELDER: Thank you, gentlemen, Mr.
3
Daniels, Mr. Postel.
4
5 (Whereupon the oral argument was

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concluded at 3:32 P.M.)
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1
CER TIFICA TION
2
3
I, LINDA O. D'UMAS, a Secretary of the State Commission
4
on Judicial Conduct, do hereby certify that the foregoing is a true and
5 accurate transcript of the tape recording of the proceedings transcribed by
6
me, to the best of tny knowledge and belief, in the matter held on
7
September 18, 2007.

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Dated: September 25, 2007
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61 Broadway

Viii. Oral Argument

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Viii. Oral Argument

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STATE OF NEW YORK

COMMIS'SION'"ON JUDICIAL CONDUCT

a Judge of the Niagara Falls City Court,

Jean M. Savanyu, Esq.

Edward Lilldner, Esq.

For the Respondent

Mark R. Dba, Esq. ,

Hon. Robert M. Restaino

New York, New York 10006

1 that no mitigation, no contrition, no character

New York, New York 10006

1 reconsideration following misconduct is very

10 mDGE KONVISER: -- Was 46 accurate?

New York, New York 10006

1 designed for one or two people, which on that day, as

New York, New York 10006

New York, New York 10006

1 a cell phone related to what went off was ever

New York, New York 10006

1 ma1<~es good on his promise.

New York, New York 10006

1 evaluated their cases in a considered fashion? Only

New York, New York 10006

1 MR. POSTEL: Sure. I think Blackburne is

New York, New York 10006

1 warrants, he considered the fact the defendants

New York, New York 10006

1 He was incarcerating them because he didn't like the

New York, New York 10006

1 MR. COFFEY: -- They weren't put ill prison.

New York, New York 10006

1 mDGE PETERS: -- Isn't that like

New York, New York 10006

1 they got there, they were eventually released. How

New York, New York 10006

1 he did it on his own.

New York, New York 10006

1 Y-A, he appeared and he said, "Judge, excuse me"

New York, New York 10006

1 upon respect, faith and confidence. And my concenl

New York, New York 10006

1 supposed to pick her up at 3:30 P.M., I can't go into

New York, New York 10006

1 MR. POSTEL: Correct, right, based upon the

New York, New York 10006

1 tllem. So, yes, there was harm and impact upon

New York, New York 10006

1 the wrong decision and a harsh decision, was at least

New York, New York 10006

1 It's not enough. Respondent-­

New York, New York 10006

New York, New York 10006

1 of tile Commission, Mr. Postel. We certainly

New York, New York 10006

1 explain to me why he wouldn't talce the time and

New York, New York 10006

1 MR. DANIELS: March 11, 2005. I

New York, New York 10006

1 MR. EMERY: He didn't see to it that they

11 MR. DANIELS: I'm not certain he was able

23 MR. DANIELS: He's sorry to this

24 Commission, he's sorry to those defel1dants, he·'s

25 sorry to other City Court judges. He's sorry to the

New York, New York 10006

1 It's not enough. Respondent-