No amount of remorse may have been enough to convince the Commission on Judicial Conduct to keep Rochester City Court Judge Leticia Astacio on the bench given her actions, state attorneys argued before the state Court of Appeals on Wednesday.

But that didn't stop her attorney, Robert Julian from Utica, New York, from trying to persuade the state's highest court otherwise. The Court of Appeals has the power to reject the commission's recommendation for her removal, which was decided in April.

Julian argued that Astacio had apologized repeatedly for her actions, which include a conviction for driving while intoxicated, violating provisions of her conditional discharge on that conviction, and making inappropriate comments from the bench.

Astacio has been the subject of controversy in Rochester since her arrest for driving while intoxicated in 2016. Her attorney said on Wednesday that she still maintains she was not drunk during the arrest.

“She did not believe at the time she was driving at 7 o'clock in the morning and she was driving to the YWCA to work out,” Julian said. “She did not believe she was under the influence of alcohol but she accepts the verdict.”

A significant part of Wednesday's arguments centered around whether Astacio was an alcoholic, and whether that should factor into the court's decision on her removal.

Judge Eugene Fahey, for example, asked Edward Lindner, who argued for the commission, whether the commission's decision might have been different if she publicly sought treatment for alcoholism after her conviction.

“If afterwards, [Astacio] had gone to Alcoholics Anonymous, gone through a program, sworn off all alcohol, came out public and said as an alcoholic, 'I made some mistakes but I still want to be a judge and I can serve the community effectively.' … In that circumstance do you think the recommendation might have been different?” Fahey said.

Lindner said Astacio's behavior was severe enough that a public apology and admission of a problem with alcohol may not have changed the commission's decision.

“Alcoholism is not an offense, it's an explanation,” Lindner said. “In a case where a judge has gone to jail for violating a court order, who's twice tried to drive while intoxicated, I think this might be a case where even if there had been severe contrition, it might not have been enough.”

Julian said after court that the point is moot because Astacio is not an alcoholic.

“You don't label yourself an alcoholic. Ultimately the diagnosis of alcoholism is a diagnosis made by health care professionals,” Julian said. “In her case, she went through several alcohol programs as an outpatient and she was found to be a mild alcohol abuser. Does that mean she's an alcoholic or not an alcoholic? I think those are terms we should leave to the doctors.”

Lindner also argued that Astacio, two years after her arrest for driving while intoxicated, has lost the confidence of the people who elected her to the bench in the first place. He said reinstating Astacio would be an unprecedented decision by the court.

“A judge is responsible for her conduct. When a judge commits crimes that are newsworthy, it has an impact on public confidence,” Lindner said. “You have never had a judge who was incarcerated for violating a court order and went back on the bench and it would be unprecedented to do that here.”

In his brief to the Court of Appeals before arguments, Julian had based his appeal on remarks from the commission's chair, Joseph Belluck, during a hearing on Astacio's conduct in April. Belluck had accused Astacio of making derogatory remarks about the commission in public, a charge that Astacio has denied. Julian argued in the brief that Belluck's remarks could have inappropriately influence the commission's decision.

Despite being a main argument for the appeal, the remark was only discussed briefly during arguments. Julian chose instead to focus on Astacio's remorse, which included an apology to the commission during the same hearing.

Chief Judge Janet DiFiore asked Lindner during arguments how the court could be sure that Belluck's complaint did not influence the commission's decision on her removal.

“Read the decision,” Lindner said. He argued that the decision, which is a detailed account of the commission's work, does not mention the remark outside of the transcript from that hearing.

Astacio is still a sitting judge on the Rochester City Court, though no cases have been assigned to her since the commission's decision. If the Court of Appeals agrees to remove her from the bench, she will leave the position immediately.

A decision is likely to come down from the court on Astacio's removal next month.