114 N.Y.S. 375 | N.Y. App. Div. | 1909
The Association of the Bar of the City of New York has presented to this court a petition alleging that the respondent, a city magistrate of the city of Hew York, was guilty of such conduct as required his removal from office. A copy of this petition was served upon the respondent, who submitted his answer. The respondent, by his answer, does not directly put in issue any of the allegations of fact in the petition. He admits and alleges that he was appointed a city magistrate on the 18th day of July, 1907; that on January 6, 1908, while holding the Magistrate’s Court in the second district, he duly convicted one Louise Durand of disorderly conduct tending to a breach of the peace, and that in pursuance of section 707 of the charter of the city of Hew York (Laws of 1901, chap. 466, as amd. by Laws of 1905, chap. 638) he committed her to the workhouse for a term of six months, or until the commissioner
The respondent denies that he executed this order solely as the result of the said telephonic communication, but alleges that there had come a question in his mind as to the justice of his decision ; that on the morning of the seventh of January these facts had been called to his attention in the conversation over the telephone and that when the respondent on that morning was brought to a realization that there was grave doubt as to the propriety of the conviction, he concluded that since the defendant had paid a higher penalty for the offense than was usually imposed by the other magistrates, where guilt was clear, she had paid a sufficient penalty for her misconduct, even upon the assumption of guilt, and that in view of the doubt as to her guilt, the ends of justice would best be met by causing her forthwith to be released upon probation and, accordingly, he issued the said order to that effect; that he issued this order without making any further investigation in the matter. The answer then alleges that there is a certain custom among the city magistrates in relation to the discharge upon probation of persons convicted of similar offenses, but admits that after he issued the probation order he did not inform the probation officer of the discharge, nor did he make a record of the same in such a way that the proba
Upon cross-examination he testified that on the night of the fifteenth of January he had a conversation with a reporter from the Hew York World, who said that they were looking over the probation records of the court, but would not give the respondent anything in the nature of an assurance about the story; that the respondent was admitted to the bar here in 1896, and on being asked as to what law gave to a magistrate power after commitment to discharge a prisoner on probation, the respondent stated that it was section 710 of the charter. The witness further testified that as a rule he would turn over these charges to the probation officer and let him attend to the rest of it.
One of the probation officers testified that as a rule when an application was made to discharge on probation a prisoner after he had been committed to the workhouse by the magistrate the probation officer investigated the case and tried to verify the statement of the person making the application, and the discharge would depend upon the report of the probation officer; but that it occasionally occurred that this was not done, and the prisoner would be discharged without such investigation ; that the usual practice was to order the investigation first.
Schavrien, who first communicated with the magistrate in relation to this charge, testified as to his communication with the respondent and as to the respondent’s communication with him; that two or three days after the discharge Eosenbach said that he had got a good fee in the matter and would give the witness a piece of it; that Eosenbach then gave the witness seventy-five dollars ; that he had two other cases in which he had obtained a discharge from the magistrate, and that in these two cases he received a fee, and had also received a fee of twenty-five dollars in another case.
After this hearing, and after the case had been submitted, there was presented by the Bar Association of the City of New York what may he called a supplemental petition also asking for the removal of the magistrate upon additional facts. From that petition it appears that the petitioner had received from the corporation counsel of the city of Hew York a special report by the commis
By section 707 of the charter (as amd. supra) the court or magistrate before whom a person is convicted of disorderly conduct is required to impose upon a person so convicted one or the other of the penalties therein provided. The magistrate may commit the person convicted to the workhouse to be detained for the term of six months, impose a fine not exceeding ten dollars or require the person convicted to give sufficient surety for his good behavior. The section also provides that any court or magistrate may suspend sentence in the case of any person convicted and may release such person upon probation, upon such terms and conditions and for such period of time, not exceeding six months, as the court or magistrate may deem best; that a person released on probation, in accordance with the
It is made the duty of tire probation officers to supervise the conduct of each person placed under their charge respectively and to report any violation by any such person of the terms and conditions of his release. • If two or more probation officers were assigned to any city magistrate’s court, the court or magistrate is required to designate the officer under whose charge each person on probation shall be placed.
It is quite clear that the magistrate had no power under this section to discharge a prisoner who had been convicted and committed to the workhouse. After conviction the magistrate could have suspended sentence and released the person upon probation, upon such terms and conditions and for such period of time, not exceeding six months, as he might deem best. When thus released the person who had been convicted of disorderly conduct was not to be discharged, but was to be “ placed under the charge and supervision of a probation officer ” and furnished by the clerk of the court with the terms and conditions of his or her release. If the magistrate did not see fit to suspend sentence, he was then required either to impose a fine not exceeding ten dollars, or require the convicted person to give security for good behavior, or commit the person so convicted to the workhouse to be detained for a period of six months. With the commitment to the workhouse the jurisdiction of the magistrate ceased and the time of the prisoner’s discharge was to be ascertained under sections 708, 709 and 710 of the charter (as amd. by Laws of 1905, chap.’633) by the commissioner of correction and witli such a discharge the magistrate had nothing to do. When a prisoner had been committed and his case came under section 710 of the charter and where the date of discharge named in the commissioner’s order was more than twenty days and less than one hundred and sixty days after the date of the last warrant of commitment, the magistrate could, under section 711 of the charter, after twenty days, direct the discharge of a prisoner so committed ; but no such order could be granted by any magistrate in any case except upon the written certificate of the commissioner stating
The orders discharging the prisoner were, therefore, unauthorized, and the commissioner of correction or the superintendent or other person having- charge of the workhouse should not have obeyed them.
While, therefore, the order of the magistrate was absolutely without justification, violating the plain mandatory provisions of the statute, destroying a system which had been carefully devised to regulate the term of imprisonment of persons convicted and sentenced, depending upon their former record and whether they w'ere hardened offenders, the fact that most if not all the magistrates had exercised this power is to be considered in determining whether this respondent should be removed from office for violating this provision of the statute under which he acted when he convicted and sentenced those brought before him.
We will assume that under the existing circumstances as disclosed in this proceeding, the mere fact that such discharges were granted would not justify the removal of a magistrate. The methods adopted by the respondent, the manner in which he exercised this power which he says he believes he had, in the light of his own explanation of his conduct, will now he considered. The facts in relation .to the discharge of the Durand woman have been stated. She had been convicted and sentenced, and as the result of a simple telephone message from his former associate in business and a conversation with a person representing himself to be the attorney for the convicted woman, he signed at his house a discharge placing the prisoner on probation without notifying the probation officer, disregarding the plain provisions of the statute in relation to a discharge on probation, where it was apparent that the prisoner would be discharged before the probation officer had an opportunity to take charge of the prisoner, even if he had subsequently informed her, as he said he intended; yet, instead of waiting for any report from the commissioner, without requiring any affidavit as to the reason for the discharge, and without giving the discharge to a probation officer so that the officer could at least keep some record of the case and
The magistrate knew that it was his judicial record that was being examined in connection with these charges. There was not the slightest foundation for the suspicion that the story about to be published which would involve him in disgrace was one that had already been published in relation to his .experience in Baltimore, Md., and the whole episode is so disgraceful and unbecoming a judicial officer that, taken in connection with his administration of the powers which he now says he supposed he had, it forces the conclusion that he is entirely unfit to continue to exercise the power of a city magistrate. To these magistrates are committed large discretionary power’s, the proper and judicious exercise of which is essential to the well being of a very large proportion of the people, who have little knowledge of judicial proceedings, and who have no one to look to for protection except the policemen and police magistrates. There are few public officers who have the opportunity of preventing or permitting so much oppression as these police magistrates,' who are given large discretion to aid in the administration of justice; but the method before detailed has no relation to the administration of justice, as I understand it, and the facts before us have convinced the court that the respondent is entirely unfit to" be trusted with. the power and authority with which police magistrates are vested. '
The authority of this court to remove a judicial officer is based upon section 17 of article 6 of the Constitution, which provides that justices of the peace and judges or justices of inferior courts not of record and their clerks may be removed for cause, after due notice and an opportunity of being heard by such courts as are or may be prescribed by law. Section 132 of the Code of Criminal Procedure provides that justices of the peace, police justices, jus
The respondent’s explanation of his conduct but confirms the impression made by a consideration of his answer. The fact that the discharge of the Durand woman, which was a distinct violation of the statute, was the result of the solicitation of bis associate, occupying offices with him which he was in the habit of occasionally visiting, who had received a fee for his interference, and that the same thing had happened in other cases before this particular" magistrate, and the other instances' in which he had granted similar discharges without examination or investigation, and the fact that he had paid $250 to suppress a story that was to be published in relation to his official conduct, is not consistent with the qualities necessary for the proper performance of his judicial duties,
McLaughlin, Laughlin, Houghton and Scott, JJ., concurred.
Charges sustained, and respondent removed from office. Settle order on notice.
See Laws of 1873, chap. 335, § 28.—[Rep.
Brooklyn Daily Eagle, Feb. 20, 1895.— [Rep.