ALBANY - Supreme Court Justice Joseph S. Alessandro (See Profile) was removed from the bench yesterday by the Court of Appeals, which determined that the same punishment was too harsh for his brother, Bronx Civil Court Judge Francis M. Alessandro (See Profile).
Editor's Note: This article has been modified to reflect a Correction.
The Court instead reduced the removal recommendation made against Francis by the Commission on Judicial Conduct to an admonition. That will allow Francis, 70, to serve out the final weeks of his judicial career from the bench before he faces mandatory retirement at the end of this year.
The judges had harsh words for Joseph, 64, and his handling of a $250,000 loan he took out during his 2003 race for Westchester County Court judge from Barbara Battista, the manager of his campaign.
Read the Court' of Appeals' decision in Alessandro. Yesterday's Court of Appeals rulings begin on page 36 of the print edition of today's Law Journal.
Not only did Joseph's actions suggest that he was not willing to repay the loan on time, the Court ruled, he also failed to disclose the obligation on court financial disclosure forms and on loan applications.
The Court also said Joseph's "evasiveness" created "a strong inference that he was dishonest" in both his dealings with Ms. Battista and her lawyer over the loan and with the Commission on Judicial Conduct in its investigation of his activities.
"We recognize that Joseph's inexperience as a political candidate in 2003 may have contributed to his decision to accept a problematic loan from his campaign manager in the first place," the Court concluded yesterday. "Nevertheless, having accepted the loan, he was required to meet this obligation with 'the highest level of judicial honesty and integrity.'"
His subsequent failure to disclose the loan on legal filings with banks and the courts "is consistent with an ongoing pattern of shirking his obligation" to repay the loan, the Court held.
Ms. Battista ultimately sued for repayment. Joseph settled with her for $273,000 in 2005.
Joseph won the 2003 campaign and ran successfully in the 2005 race for a seat on the Supreme Court's Ninth Judicial District, which covers Westchester, Putnam, Dutchess, Orange and Rockland counties.
As a result of the removal, Joseph cannot hold judicial office again in New York state.
He had been continuing to draw his $136,700-a-year salary as he challenged the commission's removal recommendation.
Turning to Francis, the Court called his failure to fully list assets and liabilities on his court financial disclosure statements in 2003 and 2004 a "serious matter." Among other things, information provided on those forms enables lawyers and litigants to determine if judges are potentially conflicted and recusal is warranted, the judges noted.
The Court concluded, however, that it could not see how omissions Francis made on the financial disclosure statements, or on loan application forms, were intentional or to his advantage.
"Careless omissions from a financial disclosure statement are not the type of 'truly egregious' conduct that warrants removal from judicial office," the Court ruled, citing Matter of Cunningham, 57 NY2d 270 (1982).
Likewise, filling out loan applications in a "sloppy fashion where there is no evidence of intent to deceive" also does not warrant a judge's removal, the Court held.
Francis argued before the commission and the Court that he did not list the Battista loan on his disclosure or loan statements because he understood it to be Joseph's obligation and not his own.
Francis had initially co-signed for the loan, but his name was removed when Joseph signed a new agreement that Ms. Battista said obligated Joseph to repay the money within one year. Joseph said the new loan document gave him 15 years.
In any event, Francis argued that Joseph said he would take care of the loan.
Francis has been a Civil Court judge since 1990. He has continued to receive his $115,400-a-year salary as his challenge was heard by the Court of Appeals.
The Court decided the two disciplinary cases by 6-0 margins in one written ruling. The cases are Matter of Honorable Joseph S. Alessandro, 126, and Matter of the Honorable Francis M. Alessandro, 127.
Judges' Future
Paul DerOhannesian II, Joseph's attorney, said his client was disappointed with the finding.
"However, he does appreciate that the Court took the significant step of determining that removal was not the appropriate sanction for his brother in this transaction," Mr. DerOhannesian said.
As for his client's future, Mr. DerOhannesian noted that nothing in the disciplinary case would prevent Joseph from resuming the practice of law, which he claims Joseph did "successfully and with an unblemished record" before becoming a judge.
Robert P. Roche, Francis' attorney, said the brothers' cases were the latest in a string of tragedies to befall the Alessandro family.
The brothers both argued before the Court of Appeals that their form-filing deficiencies occurred in a period when their parents both died and Francis' wife was diagnosed with Alzheimer's.
"I was heartbroken for Joseph," Mr. Roche said in an interview. "I was pleased because Francis got the right decision, but I was sad to see that they did not carry that over to his brother."
Mr. Roche described both brothers, who once practiced law together, as very close.
"They were always good friends," Mr. Roche said. "It was always Francis' dream that little Joey would be a judge some day. But it was also little Joey's dream that he would follow in his big brother's footsteps."
The Commission on Judicial Conduct had voted 9-0 to recommend Joseph's removal and 8-1 for Francis' ouster. In separate decisions containing nearly identical findings, the commission determined that the brothers' actions had "irretrievably damaged" their ability to remain as judges (NYLJ, Feb. 24).
Mr. Roche said Francis believed he had reached a stipulation with the commission under which he was to receive an admonition but that the agreement was rejected without explanation and the panel voted for removal.
At oral arguments before the Court of Appeals in September, Mr. Roche had pleaded with the judges not to allow Francis' judicial legacy to be overshadowed by removal in the twilight of his career.
Mr. Roche said Francis' troubles with the conduct commission will undoubtedly be remembered along with his judicial record. But Mr. Roche said he hoped the "affection" with which Francis is held in the Bronx will soften memories of the difficulties of the last year.
Commission attorney Edward Lindner argued before the Court in support of the panel's recommended removals.
Commission administrator Robert Tembeckjian said yesterday that the Court affirmed the panel's findings that both brother deserved to be punished.
"In removing one, the Court underscored the egregiousness of willful misconduct and lack of candor," he said. "In admonishing the other for negligence and carelessness, the Court affirmed the importance of honest and accurate financial disclosure statements."
Counting yesterday's rulings, the Court of Appeals has upheld 66 removal recommendations by the commission and in 10 other instances reduced removals to lesser sanctions.
The Alessandro ruling was the first time the Court modified a commission recommendation since 2003, when Lockport City Court Judge William Watson's removal was reduced to a censure.
The commission had found removal was warranted for the campaign ads Judge Watson ran in which he promised to be tough on criminals.
Joseph Alessandro was elected to Supreme Court with the help of a deal under which Democratic leaders in the Ninth Judicial District agreed to cross-endorse him while Republican leaders cross-endorsed a Democratic candidate for Supreme Court, Jonathan Lippman, who is now chief judge.
Judge Lippman did not take part in September's oral arguments or yesterday's decision.
@|Joel Stashenko can be reached at jstashenko@alm.com.
