New York State

Commission on Judicial Conduct

In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law, in Relation to

LAWRENCE J. FLECKENSTEIN,

A Justice of the Moravia Town Court and an Acting Justice of the Moravia Village Court, Cayuga County.

THE COMMISSION:

Henry T. Berger, Esq., Chair

Honorable Myriam J. Altman

Helaine M. Barnett, Esq.

Herbert L. Bellamy, Sr.

Honorable Carmen Beauchamp Ciparick

E. Garrett Cleary, Esq.

Dolares Del Bello

Lawrence S. Goldman, Esq.

Honorable William C. Thompson

APPEARANCES:

            Gerald Stern (John J. Postel, Of Counsel) for the Commission

            Charles A. Marangola for Respondent

            The respondent, Lawence J. Fleckenstein, a justice of the Moravia Town Court and the Moravia Village Court, Cayuga County, was served with a Formal Written Complaint date April 21, 1992, alleging that he improperly delegated his authority to review and approve bail bonds.  Respondent filed an answer dated May 5, 1992.

            On August 18, 1992, the administrator of the Commission, respondent and respondent’s counsel entered into an agreed statement of facts pursuant to Judiciary Law §44(5), waiving the hearing provided in Judiciary Law §44(4), stipulating that the Commission make its determination based on the pleadings and the agreed upon facts, jointly recommending that respondent be admonished and waiving further submissions and oral argument.

            On September 18, 1992, the Commission approved the agreed statement and made the following determination.

            1.  Respondent has been a justice of the Moravia Town Court since 1972 and acting justice of the Moravia Village Court since 1977.

            2.  On February 11, 1983, respondent signed a resolution passed by the Cayuga County Magistrates’ Association in which he delegated authority to the county sheriff’s department to review and approve bail bonds presented by any certified bondsman at the county jail for defendants committed by respondent.  The department was also authorized to release the defendants on respondent’s behalf.

            3.  On March 31, 1988, respondent arraigned Richard G. Maycumber on charges of Criminal Possession Of A Weapon, Fourth Degree; Illegal Possession of Fireworks; Aggravated Harassment, and Harassment and committed him to jail in lieu of $2,500 cash bail or $5,000 bail bond.

            4.  On April 1, 1988, a bail bond was presented to Sheriff’s Lt. Frank Thomas at the jail.  He signed respondent’s name to a Certificate of Release and released Mr. Maycumber pursuant to the authority delegated by respondent in the magistrates’ association resolution.     

            5.  Before Mr. Maycumber’s release, respondent had not reviewed and approved the bail bond, as required by CPL 510.40(3).

            6.  After Mr. Maycumber’s release, respondent received the bail bond from the Sheriff’s department.   Respondent did not revoke bail, demand the production of a Justifying Affidavit or take any other corrective action, even though the bail bond was legally insufficient because it did not include a Justifying Affidavit and because the Undertaking of Bail had not been sworn to by the surety-obligor, as required by CPL 520.20.

            7.  On April 30, 1988, respondent arraigned Michael Klimoszewski on charges of Driving While Intoxicated, Driving With Blood Alcohol Content In Excess Of  .10 Percent, Aggravated Unlicensed Operation and Speeding and committed him to jail in lieu of $500 cash bail or $1,000 bail bond.

            8.  On May 1, 1988, a bail bond was presented to Lieutenant Thomas at the jail.  He signed respondent’s name to a Certificate of Release and released Mr. Klimoszewski.

            9.  Before Mr. Klimoszewski’s release, respondent did not review and approve the bail bond, as required by CPL 510.40(3).

            10.  After Mr. Klimoszewski’s release, respondent received the bail bond from the sheriff’s department.   He did not revoke bail, demand the production of a Justifying Affidavit or take any other corrective action, even though the bail bond was legally insufficient because it did not include a Justifying Affidavit and because it did not include a Justifying Affidavit and because the Undertaking of Bail had not been sworn to by the surety-obligor, as required by CPL 520.20.

            Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated the Rules Governing Judicial Conduct, 22 NYCRR 100.1, 100.2, 100.3(a) and 100.3(b), and Canons 1, 2, 3A and 3B of the Code of Judicial Conduct.  The charge in the Formal Written Complaint is sustained, and respondent’s misconduct is established.

            The law permits a judge to accept a bond to ensure a criminal defendant’s reappearance in court (CPL 520.10) but provides several safeguards to the procedure (CPL 520.20).

            Upon posting of bail in any form, a judge must examine it to determine that it complies with the court’s order.  (CPL 510.40[3]).  Bail bonds must be submitted to the court and must contain certain information identifying the person or organization posting the bond on behalf of the defendant and promising to pay the court of the defendant does not appear.  (CPL 520.20[1], [2]).  The bond application must also include a Justifying Affidavit, containing such information as the amount of the premium paid, security and promises received and any personal and real property pledged as security and its value.  (CPL 520.20[4]).

            Thus, it is the responsibility of the judge to ensure that a bail bond provides adequate protection that a defendant will return to court.  Judicial duties cannot be delegated to jailers or any other non-judicial officers.  (See, judicial officers.  (See, Matter of Greenfeld v. State Commission on Judicial Conduct, 71 NY2d 389; Matter of Rider, 1988 Ann Report of NY Commn on Jud Conduct, at 212; Matter of Hopeck, 1981 Ann Report of NY Commn on Jud Conduct, at 133).

            By authorizing the sheriff’s department to perform a judicial function and permitting a jailer to release two defendants on legally insufficient bail bonds, respondent was not faithful to the law and did not diligently perform his judicial duties.

            By reason of the foregoing, the commission determines that the appropriate sanction is admonition.

            Mr. Berger, Judge Altman, Ms. Barnett, Judge Ciparick, Mr. Cleary, Mrs. Del Bello, Mr. Goldman, Judge Salisbury and Judge Thompson concur.

            Mr. Bellamy and Mr. Sheehy were not present.