Rochester City Judge Leticia Astacio.

A Rochester City Court judge who was recommended for removal from office earlier this year by the state Commission on Judicial Conduct will have her case to be reinstated heard by the state's highest court next week.

Judge Leticia Astacio, whose removal was recommended in April, is asking the Court of Appeals to lower the commission's recommendation from a removal to a censure for driving while intoxicated in 2016, violating her conditional discharge, and acting inappropriately from the bench.

Robert Julian, a personal injury attorney from Utica, is representing Astacio before the court. He argued in a brief in June that the commission's chair introduced prejudicial information against Astacio during the proceeding that was not part of the evidence presented against her.

He said in his brief the commission's decision amounts to “career capital punishment.”

The case dates back to 2016 when Astacio was charged and convicted of driving while intoxicated. Despite the conviction, she has maintained that she was not drunk at the time of her arrest. The commission claimed in their brief to the Court of Appeals that Astacio also “asserted her judicial office in an implicit request for special treatment” during her arrest.

She violated the terms of her conditional discharge by drinking after her conviction, the commission said. They knew she drank because an ignition interlock device on her car detected alcohol twice after her conviction.

Astacio claimed that during the first occasion she was unaware that she was not allowed to drink as part of her discharge. Julian said during oral arguments before the commission that Astacio did not know about the second “bad blow.”

When her attorney, which wasn't Julian at the time, contacted her about the second violation to tell her she was ordered to appear in court, Astacio did not comply. She was on an international vacation and did not return to Rochester until a few days after her scheduled appearance, the commission said.

Julian said in his brief that Astacio had asked her attorney to email her if he needed her instead of calling. He claimed that if her attorney had emailed her, she may have been able to return to the country in time for the court appearance.

Since those violations, Astacio has gone through rehabilitation programs, and according to Julian's reply brief, has been found “fit to serve” by an examiner with the Office of Court Administration.

“Her two failures to adhere to the conditional discharge were not defiant or petulant, but rather based on a failure to fully and completely comprehend the parameters of the conditional discharge,” Julian wrote. “She was wrong. She acknowledges it.”

The commission also removed her for her conduct on the bench. In one occasion, she failed to recuse herself in a case where the defendant was a former client. In multiple other occasions, the commission said, she exhibited rude and unprofessional behavior. During an arraignment on a sexual misconduct charge, Astacio laughed after an attorney said the victim in the case had “buyer's remorse.”

“Oh, man. I don't mean to be so inappropriate,” Astacio said after the arraignment, according to the commission. “I thought that was freakin' hilarious.”

The commission issued a formal complaint against Astacio at the end of its investigation into her conduct in 2017.

The testimony Julian is asking the Court of Appeals to review happened in April 2018, days before the commission recommended Astacio's removal. During oral arguments, Astacio was granted an opportunity to speak on her own behalf. She apologized for her actions and misconduct while serving on the bench.

Astacio also said John Postel, who led the investigation for the commission, had “done a wonderful job and I think he's done an outstanding job in spite of his recommendation.”

That evidently struck a nerve with Joseph Belluck, chair of the commission.

“Well, you started this by saying that you have respect for Mr. Postel and that he hasn't made you upset with him and that you have respect for us but you've also made comments in public that you are not going to take any shit from the judicial conduct commission and that's recent,” Belluck said.

“I don't understand how you can come before this commission and tell the commission that you have a level of respect for us and you appreciate our work and you are not upset with Mr. Postel and also be making those comments,” he continued.

Astacio asked Belluck to explain what he was referencing. According to Julian, the commission never followed up with more information and did not give them the chance to respond before Astacio was recommended for removal. Julian said in his brief that Belluck's comments stacked the deck against Astacio.

“Petitioner and her counsel were dismissed on that day with no opportunity to further argue or explain the damaging and unsupported accusations,” Julian wrote. “In the mainstream, there can be little doubt that the commission on judicial conduct proceedings are lopsided events.”

The Court of Appeals is set to hear arguments in the case on Sept. 5.