IV. Documents Received Into Evidence at The Hearing

NEW YORK STATE
COMMISSION ON JUDICIAL CONDUCT

61BROADWAY
NEW YORK, NEW YORK 10006
RAOUL LIONEL FELDER, CHAIR

212-809-0566 212-809-3664
TELEPHONE FACSIMILE
HON. THOMAS A. KLONICK, VICE CHAIR
STEPHEN R. COFFEY www .scj c.state.ny. us
COLLEEN C. DIPIRRO
RICHARD D. EMERY
PAUL B. HARDING
MARVIN E. JACOB
HON. JILL KONVISER
HON. KAREN K. PETERS
HON. TERRY JANE RUDERMAN November 13, 2007
MEMBERS
JEAN M. SAVANYU
CLERK
Honorable Judith S. Kaye

Chief Judge
Court of Appeals
Eagle Street
Albany, New York 12207
Dear Chief Judge Kaye:
Pursuant to Article VI, Section 22, of the Constitution of the State of New
York, Article 2-A of the Judiciary Law, and Part 530 of the Rules of Practice of the Court
of Appeals, enclosed please find three copies of a Determination and related documents
of the State Commission on Judicial Conduct in the matter involving the Honorable
Robert M. Restaino, a Judge of the Niagara Falls City Court, Niagara County. Judge
Restaino's home address is .
Very truly yours,
Jean M. Savanyu
Enclosures
cc: Robert H. Tembeckjian, Esq.
BY HAND
November 15,2007
CONFIDENTlj\~
HOI1. Raoul Lionel Felder, Chairman

State Commission on Judicial Conduct
61 B~oadway, 12th Floor
New York, New York 10006
Dear Mr. Felder:
Chief Judge Judith S. Kaye has asked me to acknowledge receipt on

November 14, 2007 by hand of three copies of a Commission determination dated
November 13, 2007, and files in the Matter of Ron. Robert M. Restaino, a Judge of the
Niagara Falls City Court, Niagara COllnty.
Chief Judge Kaye has requested today, November 15, 2007, that I initiate
notification and ~ervice on Judge Robert M. Restaino by certified mail, return receipt
requested, in accordance with judiciary Law, section 44, subdivision 7. That has been
done and I enclose a copy of Chief Judge Kaye's notification letter to Judge Robert M.
Restaino.
Very truly yours,
~fi1.~
Stuart M. Cohen
JAC:ai
Enclosure
cc: Hon. Ann T. Pfau

Robert H. Tenlbeckjian, Esq.
ff~ 0/~ c7d//
~, ~ §/~ /~~(},?
November 15, 2007
CONFIDENTI]\~L
Hon. Robert M. Restaino

Judge of the Niagara Falls City
Court, Niagara County
Niagara Falls, New York 14305
Dear Judge Restaino:
In accordance with section 2:, subdivision a, of

Article VI of the New York State Constitution and with section
44, subdivision 7, of the Judiciary Law, I am hereby notifying
you of the determination of the Commission on Judicial Conduct,
dated Noverr~er 1~, 2007 and transmitted to me by hand on November
14, 200~J and I am also sending you by certified mail, return
re,ceipt requested a cOTI1plete set of the papers.
I
1 draw your particular attention to section 44,

subdivision /, of the Judiciary Law which also provides:
IIUpon completion of servicE, the
determination of the commission,
its findings and conclusions and
the record of its proceedings shall
be made public and shall be made
available for public inspection at
the principal office of the commis
.s~Qn .and at the office of the clerk
of the court of appeals. The jUdgE
involv~d may either accept the de
termination of the cornrnissiorl or
make written request to the chief
jUdgE, wit~in thirty days after re
ceipt of sDch determination, for c
Hon. Robert M. Restaino page 2
review thereof by the court of ?p

peals.
* * * * * '*
If the commission has determined
that 0 judge be removed or retired,
and if the judge accepts such de
termination or fails to request a
review thereof by the court of ap
pealE, th~ court of appeals shall
thereupon order hiB removal or re
tirement in accordance with the
findinge of the commission. 11
cc: HOD. Raoul Lionel Felder

Hon. Ann T. pfau
Han. Stuart M. Cohen
Robert H. Tembeckjian, Esq.
Certified MaiJ.
Return Receipt Requested
November 21,2007
COl\TFIDENTIAL
Hon. Raoul Lionel Felder, Chairman
61 Broadway, 12th Floor
Dear Mr. Felder:
Chief Judge Judith S. Kaye has asked me to acknowledge receipt on

November 14,2007 by hand of three copies ofa Commission determination dated
November 13, 2007, and files in the Matter of Ron. Robert M. Restaino, a Judge of the
Niagara Falls City Court, Niagara County.
Chief Judge Kaye has requested today, November 21, 2007, that I initiate
notification and service on Judge Robert M. Restaino by certified mail, return receipt
. requested, in accordance with Judiciary Law, section 44, subdivision 7. That has been
done and I enclose a copy of Chief Judge Kaye's notification letter to Judge Robert M.
Restaino.
Very truly yours,
~\~~C/~ f\. \l~~~

Richard A. Reed
Deputy Clerk
JAC:ai
Enclosure
cc: Hon. Ann T. Pfau

~o/~~
~, ~ f?/~ /iPiPtJ7
Novembe~ 21, 2007
CONFIDENTIAL

Judge of the Niagara Falls City
In accordance with section 22,- subdivision a, of

Article VI of the New York State Constitution and with section
44, subdivision 7, of the Judiciary Law, I am hereby notifying
you of the determination of the Commission on Judicial Conduct,
dated November 13, 2007 and transmitted to me by hand on November
14, 2007, and I am also sending you by certified mail, return
receipt requested, a complete set of the papers.
I draw your particular attention to section 44,

subdivision 7, of the Judiciary Law which also provides:
"Upon completion of service, the

determination of the commission,
its findings and conclusions and
the record of its proceedings shall
be made public and shall be made
available for public inspection at
the principal office of the commis
sion and at the office of the clerk
of the court of appeals. The judge
involved may either accept the de
termination of the commission or.
make written request to the chief
judge, within thirty days after re
ceipt of such determination, for a
Hon. Robert M. Restaino page 2

peals.
* * * * * *
If the commission has determined
that a judge be ~emoved or retired,
and if the judge accepts such de
termination or fails to ~equest a
peals, the court of appeals shall
thereupon order his removal or re
tirement in accordance with the
findings of the commission. II
very~~our. I
Judith S. Kaye
cc: Hon. Raoul Lionel Felder

Hon. Ann T. pfau
Hon. Stuart M. Cohen
Robert H. Ternbeckjian, Esq.
Certified Mail
Return Receipt Requested
~~~W.od
~~~~
November 26, 2007

Administrator
61 Broadway
Re: Matter of Hon. Robert M. Restaino,

Judge of the Niagara Falls City Court,
Niagara County
Dear Mr. Tembeckjian:
Please be advised that proof of service of the Commission's file in

the above matter was received in the Clerk's Office of the Court of Appeals
November 26,2007.
A copy of the post office receipt is enclosed.
Very truly yours,
~1t1.~
Stuart M. Cohen
SSD:ai
enc.
cc: Chief Judge Judith S. Kaye

Hon. Raoul Lionel Felder
Hon. Ann Pfau
f • ,Complete items 1, 2~ an((~:~Al~ cornPletj
item 4 if, Restricted Delivery is (fesi'red. . ~
• Print your name and address on the revEtse
so that we can retum the card to you.
• ' Attach this card to the back of the maitpiece, X 0 Agent
or on the front if space perm~. 0 Addressee
i:-.- ------------------1.
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to:
1. Article Addressed
. D. rs_erv address different from item 11 0 Yes
If YES,. enter delivery address below: 0 No
IHan. Robert M. Restaino'~f\ . .

1Judge of the Niagar~ FaIl$~
~ity Court, Niagara Co. '
~~.~~<f~~cc:~='~p=~=~=,-~t'A'==D=~=.~==H=M=a"=.========~
d Registered" 0 Return Receipt for Merchandise
1:;1 I~~ MaJl·. 0 C•.O.o.
2. ArtIcle Number (Copy' from service label)
PS'h':orm 381,1 , July 1999 ; ~ ~
. '. Sende;r: Pleas
;"68.
Stu'art M'.:Jx'",
Clerk of tb. C'
NYS Court of A'
20 Eagle Str~, '"
Albany, NY 122
NOU-27-2007 11:40 P.01/03
FAX TRANSMISSION SHEET
CONFIDENTIALITY NOTICE
This transmission ls'intended for the named recipient(s) only,

and may be confidential or privileged. If you have received this
transmission in error. please do not disclose its contents to
anyone, and telephone Donna McMillen collect during regular
business hours at (518) 455·7707 for Instructions. Thank you.
DATE: _tt.- ;;1-, -oj

TO:
FROM: ~Q<b- ~_
SENDER'S VOiCE TELEPHONE NUMBER: (518) 455- ~......._g.. .~3~
.. .....
# OF PAGES (INCLUDING THIS COVER SHEET) BEING FAXED: 3

ACTION TO BE TAKEN: DELIVER IMMEDIATELY ~"L
AS REQUESTED
'-···'-·~-FOR-YOUR INFORMATION
PLEASE APPROVE AND CALL
OTHER ACTION TO BE TAKEN
---
______
EX_PLA_NA_TI_ON_: f<---.,;;e~-<~,.....~)~ Q.ul---..,;r:uii&~
.. ~ __
P.02/03
~OV-27-2007 11:40
November 26, 2007
Robert H. Tembeckjian! Esq.

Administrator
61 Broadway
New Yorkt New York 10006
Re: Matter of Han. Robert M. Restaino,

Judge of the Niagara Falls City Court,
Niagara COWlty
Please be advised that proof of service of the Commission's file in
the above matter was received in the Clerkls Offioe of the Court of Appeals
November 26, 2007.
A copy of the post office receipt is enclosed..
Very truly yours, .
~ftf.~
Stuart M. Cohen
SSD:ai
enc.
co: Chief Judge Judith S. Kaye
Hon. Raoul Lionel Felder·
Han, Ann Pfau
P.03/03
NOV-27-2007 11:40
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IHon. Robert M. Restaino',::" . ".

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;',Judge of toe Niaga.ra Falls~",
ei ty Court, Niaga~a Co.
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INiagar~ Fall!3,' NY 14305
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2. ArtIcIeNUmbllt{Copy'ti'om~~ 'i}OPP ~,&:~Pi O;O~t'~939p:;14~? ",I.; ....... i::
PS Form 3811 July 1999 . 1

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TOTAL P.03
November 29, 2007

Judge o·f the Niagara Falls City
Re: In the Matter of the Hon. Robert M. Restaino,

a Judge of the Niagara Falls Court,
Niagara County.
Pursuant to New York State Constitution Article 6, section

22, further pursuant to Judiciary Law, section 44, subdivision 8, and
finally pursuant to 22 NYCRR 530.7, this Court has directed me to give
notice that it may consider, on its own motion, your suspension from
the exercise of the powers of the office of Justice of the Court,
County.
You may pres'ent to the Court in wri ting (ten legibly

reproduced copies will be acceptable) no later than December 7, 2007,
your reasons or arguments why suspension action should not be taken.
You may address any relevant aspect of this matter including the issue
of suspension with or without pay. IMPORTANT: Your response to this
inquiry does not excuse the need to file, separately and timely, the
written request required by Judiciary Law, section 44, subdivision 7,
if review of the Commission on Judicial Conduct's determination is
sought.
The Commission on Judicial Conduct, by receipt of a copy of
this letter, is also authorized to present its views, if any, with
respect to any aspect of this matter relevant at this time.
Your respective submissions should be filed (i.e. actually

at the Courthouse) no later than December 7, 2007.
Very truly yours,
~ft1.~
Stuart M. Cohen
JAC:ai
cc: Commission on Judicial Conduct

Hon. Ann pfau
NEW YORK STATE
61 BROADWAY
NEW YORK, NEW YORK 10006
212-809-0566 212-809-3664
TELEPHONE FACSIMILE ROBERT H. TEMBECKJIAN
JEAN M. SAVANYU
CLERK OF THE COMMISSION ADMINISTRATOR & COUNSEL
www.scjc.state.ny.us
December 3,2007
Honorable Stuart M. Cohen
Clerk of the Court
Court of Appeals Hall
20 Eagle Street
Albany, New Yorlc 12207-1095
Re: Matter ofRobert M Restaino
Dear Mr. Cohen:
The Commission has asked me to reply to your letter dated Noverrlber 29,
2007, concerning the Court's motion relative to the suspension of the Honorable Robert
M. Restaino and your invitation therein for the Conlmission to file its views, if any, with
respect thereto0
The Commission respectfully declines to prese1lt allY views with respect to

the matter of suspellsion.
Very truly yours,
Robert H. Tembeckjian
cc: Hon. Robert M. Restaino

~~~W~
£~~~
December 10, 2007
Connors & Vilardo, LLP

Attn: Terrence M. Connors, Esq.
1000 Liberty Building
424 Main Street
Buffalo, New York 14202
Re: In the Matter of the Honorable Robert M. Restaino,

Judge of the Niagara Falls City Court, Niagara County
Dear Mr. Connors:
On behalf of Chief Judge Kaye, I acknowledge receipt on December 10, 2007,

of your request, dated December 6, 2007, for Court of Appeals review of the Commission
on Judicial Conduct determination in this matter. In accordance with section 530.1(b) of
the Rules of the Court of Appeals Governing Judicial Review this proceeding is deemed
commenced as of December 6,2007.
A copy of the Court's Rules is enclosed. Please note immediately those

sections governing content and time for filing (see sections 530.2 and 530.6).
Very truly yours,
Stuart M. Cohen
JAC:ai
Enclosure
cc: The Judges of the Court of Appeals

DECISION December 13, 2007
SCJC No. 184 On the Court's own motion, it is

In the Matter of the determined that Honorable Robert M.
consideration of the suspension Restaino is suspended, with pay, effective
of Hon. Robert M. Restaino immediately, from the office of Judge of
from the office of Judge of the the Niagara Falls City Court, Niagara
Niagara Falls City Court, Niagara County, pending disposition of his request
County, pursuant to New York for review of a determination by the State
Constitution, Article 6, Commission on Judicial Conduct.
section 22, subd, e and g, Chief Judge Kaye and Judges Ciparick,
and Judiciary Law section 44, Graffeo, Read, Smith and Jones concur.
subd. 8(a) and (c). Judge Pigott took no part.
£,tatr of Rr\\1 ~ork,
Q:onrt of Slpptals
At a session 0/t"e Courl, "eldatCourt 0/
Appeals Hall in the City 0/ Albany
on t"e ~~~:r:~.:.:.~~.~ day
of ;Q.~.9.f?r:rH:?~;r;....... 2007
~rr.srnt, HON. JUDITH S. KAYE, Chief Judge, presiding.
SCJC No. 184

In the Matter of the
consideration of the suspension
of Hon. Robert M. Restaino
from the office of Judge of the
Niagara Falls City Court, Niagara
County, pursuant to New York
Constitution, Article 6,
section 22., subd. e and g,
and Judiciary Law section 44,
subd. 8(a) and (c).
On the Court's own motion pursuant to New York State
Constitution, article 6, section 22, and Judiciary Law section 44
(8), the Court having considered whether to suspend the Honorable
Robert M. Restaino from the office of the Niagara Falls City Court,
Niagara County, and due deliberation having been thereupon had, it
-is
DETERMINED, that Honorable Robert M. Restaino is
suspended, with pay, effective immediately, from the office of
Judge of the Niagara Falls City Court, Niagara County, pending
disposition of his request for review of a determination by the
State Commission on Judicial Conduct.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read,
Smith and Jones concur. Judge Pigott took no part.
Stuart M. Cohen
Clerk of the Court
STATE OF NEW YORK
COURT OF APPEALS
================
SCJC No. 184

In the Matter of the
consideration of the suspension
of Hon. Robert M. Restaino
from the office of Judge of the
Niagara Falls City Court, Niagara
County, pursuant to New York
Constitution, Article 6,
section 22., 8ubd. e and g ,.
and Judiciary Law section 44,
8ubd. 8(a) and (c).
=========
o R D E R
=========
ENTERED December 13, 2007

P.01/02
JAN-17-2008 10=47
FAX TRANSMISSION SHEET
CONFIDENTIALITY NOTICE
This transmission is intended for the named recipient(s) only,

and may be confidential or privileged. If you have received this
transmission in error, please do not disclose its contents to
anyone, and telephone Donna McMillen collect during regular
busIness hours at (518) 455-7707 for instructions. Thank you.
DATE: 11/1108
I I
TO:
FROM:
SENDER'S VOICE TELEPHONE NUMBER: (518) 4SS. ~JS~,_ , ""
# OF PAGES (INCLUDING THIS COVER SHEET) BEING FAXED: ---..-J..~-
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,,..- -A§..B~"ql)ESTED
lxt
FOR YOUR INFORMATION
PLEASE APPROVE AND CALL
OTHER ACTION TO BE TAKEN ---..-.-.-
EXPLANATION:
J8N-17-2008 10:47 P.02/02
CONNORS & VILARDO., LLP
LAw OFFICES
1000 LmERTY B1JIIiDIN(i:
424 MAIN STImh~
BUFFAI~, NEW YORK 142O'l
'IEWffiONE (716) 852·5533 FAX (716) &~2~t;6l9 SllAAN Bt F's(:IJE1~, R,N.

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January 3, 2008
G)\ISl~I'ltE A. 11·rol~IT()
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RECEIVED
*A(~o1If.) AJ)Mn"il~~J I~ D1S'l'KJt~l" (,)1: CtIU"MUlA
JAN 0 ~1 20D8
t AI,.,"'O :\ll!\1rrn~l) IN CAUFORNIA
NEW YORK S~rATE
Hon . Stuart M, Cohen r Clerk of the Court COURT OF APPF..At.S
STATE OF NEW YORK
COURT OF APPEALS
20 Eagle Street
Albany, New York 12207-1095
Re: In the Matter of the Proceedings Pursuant to

Section 44 r SUbdivision 4, of the Judiciary Law in
Relation to ROBERT M. RESTAINO, a Judge of the
N:iagara Falls City, C,ou:r,t, Niagara Cou,nty
Dear Mr . Cohen:
Please allow this letter to confirm that on behalf of

petitioner, Hon. Robert M. Restaino, 'we have requested and
received an extension of time to file the necessary papers for
review of the Determination of the state Commission on JUdicial
Conduct dated November 13, 2007. Our papers must now be filed on
or before January 28, 2008. We appreciate the Court's courtesy
ir! this regard.
Sincerely,
Vincent E. Doyle III

sb
, "'

Attn: John J.. Postelr Dep~ty Ad,miTl,ist~,~~o~" ,in cI:arge
W'RITER.'S E-MAIL AD[)RE~$~ ved@COkiliors-vihtrdo"conl

TOTAL P.02
CONNORS & VILARDO, LLP
LAW OFFICES
1000 LIBERTY BUILDING
424 MAIN STREET
BUFFALO, NEW YORK 14202
TELEPHONE (716) 852-5533 FAX (716) 852-5649
TERRENCE M. CONNORS SllSAN B. FISCHER, R.N.
LAWilENCE J. VILARDO CURTIS J. AHRENS, ,fa.
RANDALL D. Wmrn* DAWN M. Bm1mmA11
Jo11N T. Loss FAITH M. AmHss, R.N.
VINCENT E. DOYLE III LYNN M. BonmNEK
MrcnAEL J. R1w:11 DONNA J. RITZ, R.N, B.S.N.
LAWLOR F. QtllNIAN III PARAl.EliAl.S
JAME..'i W. GRABLE, JR.
A.MY c. MARTOCllE
ELIZABETH B. HARNED
Gl!ISEl'l'E A. IPPOLITO
JosEJ'H D. MoRKm, JR.
January 22, 2008
JENNIFEI{ R. ScHARFt
*Ai.so ADM1n1m 1:-. D1sTR1cT oF Cm.n1111A

t Al.<;() .\llMIITEll ('.'; CAUFOR\'IA
Hon. Stuart M. Cohen, Clerk of the Court

STATE OF NEW YORK
COURT OF APPEALS
20 Eagle Street
Re:In the Matter of the Proceedings Pursuant to Section 44,

subdivision 4, of the Judiciary Law in Relation to ROBERT M.
RESTAINO, a Judge of the Niagara Falls City Court, Niagara
County
Dear Mr. Cohen:
Please allow this letter to confirm that on behalf of petitioner, Hon. Robert
M. Restaino, we have requested and received an extension of time to file the
necessary papers for review of the Determination of the State Commission on
Judicial Conduct dated November 13, 2007. Our papers must now be filed on or
before January 29, 2008. We appreciate the Court's courtesy in this regard.
Sincerely,

sb

Attn: Edward Lindner, Esq., Deputy Administrator for Litigation
WRITER'S E-MAIL ADDRESS: ved@connors-vilardo.com

To be Argued by:
TERRENCE M. CONNORS, ESQ.
Estimated Time for Argument:
(30 Minutes)
STATE OF NEW YORK
<trnurt nf Appeals
In the Matter of ROBERT M. RESTAINO,
A Judge of the Niagara Falls City Court,
Niagara County,
Petitioner,
vs.
STATE COMMISSION ON JUDICIAL CONDUCT,

Respondent.
BRIEF FOR PETITIONER

ROBERT M. RESTAINO

Attorneys for Petitioner
Robert M. Restaino
424 Main Street
Telephone: (716) 852-5533
Facsimile: (716) 852-5649

VINCENTE. DOYLE III, ESQ.
Of Counsel
BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ....................................... 1
QUESTION PRESENTED ........................................... 4
STATEMENT OF FACTS ........................................... 5
Judge Robert M. Restaino ....................................... 5
Career on the Bench ........................................... 9
Participation in the Creation of the Niagara Falls Domestic

Violence Court .............................................. 12
Unrecognized and Untreated Psychological Stressors . . . . . . . . . . . . . . . . 16
Events of March 11, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Aftermath of March 11, 2005 ................................... 23
Proceedings Before the Commission ............................. 28
ARGUMENT: REMOVAL IS NOT THE APPROPRIATE SANCTION ..... 32
I. THIS COURT SHOULD DETERMINE THE APPROPRIATE

SANCTION ................................................. 32
-11-
TABLE OF CONTENTS - Continued
Page
II. IN DETERMINING THE APPROPRIATE SANCTION,

THIS COURT SHOULD CONSIDER THE EVIDENCE THAT
THE MISCONDUCT WAS THE RESULT OF PSYCHOLOGICAL
STRESSORS, WHICH HA VE BEEN ADDRESSED BY
PETITIONER ............................................... 34
A. This Court Should Consider Evidence of Psychological

Factors in Judicial Disciplinary Matters ...................... 35
B. The Psychological Evidence Submitted by Petitioner

Supports a Sanction Less Severe Than Removal ............... 41
III. BECAUSE PETITIONER IS FIT TO SERVE AS A JUDGE,

HE SHOULD NOT BE REMOVED FROM OFFICE ................ 45
A. Removal Is Appropriate Only When the Judge Is Unfit ......... 45
B. The Undisputed Evidence Indicates That Petitioner

Is Fit to Serve .......................................... 46
1. Petitioner Had an Unblemished Record of Exemplary

Service .......................................... 47
2. Petitioner Acknowledged the Inappropriate

Nature of His Conduct .............................. 52
3. Petitioner Has Expressed Remorse and Contrition

for His Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4. Petitioner's Misconduct Was an Aberration ............. 54
-111-
TABLE OF CONTENTS - Continued
Page
5. Petitioner's Conduct Was Caused by Psychological

Factors ........................................... 55
6. The Evidence Indicates That There Is Little Risk

That the Misconduct Will Recur . . . . . . . . . . . . . . . . . . . . . . 55
CONCLUSION ................................................... 59
-IV-
TABLE OF AUTHORITIES
Page
Cases:
Matter of Cunningham, 57 N.Y.2d 270, 456 N.Y.S.2d 36 (1982) ............ 45
Matter of Duckman, 92 N.Y.2d 141, 677 N.Y.S.2d 248 (1998) ........... 45, 46
Matter of Edwards, 67 N.Y.2d 153, 501N.Y.S.2d16 (1986) ............... 46
Matter of Esworthy, 77 N.Y.2d 280, 567 N.Y.S.2d 390 (1991) .............. 45
Matter of Kelso, 61 N.Y.2d 82, 471 N.Y.S.2d 839 (1984) ............... 33, 46
Matter of Kiley, 74 N.Y.2d 364, 547 N.Y.S.2d 623 (1989) ................. 45
Matter of LaBelle, 79 N.Y.2d 350, 582 N.Y.S.2d 970 (1992) ............... 46
Matter of Quinn, 54 N.Y.2d 386, 446 N.Y.S.2d 3 (1981) .................. 32
Matter of Sims, 61N.Y.2d349, 474 N.Y.S.2d 270 (1984) ................. 33
Matter of Skinner, 91N.Y.2d142, 667 N.Y.S.2d 675(1997) ................ 46
Matter of Spector, 47 N.Y.2d 462, 418 N.Y.S.2d 565 (1979) ................ 1
Matter of Watson, 100 N.Y.2d 290, 763 N.Y.S.2d 219 (2003) ........... 45, 46
-v-
TABLE OF AUTHORITIES - Continued
Page
Other Authorities:
Richard Boldt & Jana Singer, Juristocracy in the Trenches:

Problem-Solving Judges and Therapeutic Jurispn1dence
in Drug Treatment Courts and Unified Family Courts,
65 Md. L. Rev. 82, 87 (2006) ................................... 39
Center for Court Innovation, Planning a Domestic Violence

Court: The New York Experience (2004), available at
http://www.courtinnovation.org/index.cfm ............... 14, 39, 43, 44
William W. Eaton, Occupations and the Prevalence of

Major Depressive Disorder, Journal of Occupational
Medicine, Vol. 32, No. 11 at p. 1079 (1990) ....................... 35
Barbara Glesner Fines & Cathy Madsen, Caring Too Little,

Caring Too Much: Competence and the
Family Law Attorney, 75 UMKC L. Rev. 965 (2000) ................ 38
Ian M. Gomme & Mary P. Hall, Prosecutors at Work: Role

Overload and Strain, Journal of Criminal Justice,
Vol. 23, No. 2, at 191 (1995) ................................... 38
Peter G. Jaffe, et al., Vicarious Trauma in Judges:

The Personal Challenge of Dispensing Justice,
54 Juv. & Family Ct. Journal 1 (2003) ......................... 37-39
Hon. Judith S. Kaye & Susan A. Knipps, Judicial Responses

to Domestic Violence: The Case for a Problem Solving Approach,
27 W.St. U.L. Rev. 1 (1999-2000) ............................... 12
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Page
Susan A. Knipps & Greg Berman, New Yorlc's Problem-Solving

Courts Provide Meaningful Alterations to Traditional
Remedies, NYSBA Journal, June 2000, at 10 ...................... 43
Andrew P. Levin, Vicarious Trauma in Attorneys,

24 Pace L. Rev. 245 (2003) .................................. 37-39
Daryl J. Levinson, Collective Sanctions,

56 Stan. L. Rev. 345 (2003) .................................... 44
Dan Lukasik, Depression in the Legal Profession:

Let's Help, Lawyers Assistance Trust News, Vol. 6, No. 3,
at 8 (Summer 2007), available at http://www.nylat.org/publications/
newsletters/documents/NewsletterSummer2007.pdf ................. 35
Monica K. Miller & James T. Richardson, A Model of

Causes and Effects of Judicial Stress,
45 No. 4 Judges J. 20 (Fall, 2006) ............................... 37
Monica K. Miller, et al., Addressing the Problem of

Courtroom Stress, 91 Judicature 60
(Sept-October 2007) .......................................... 3 7
Brian Mockenhaupt, The Army We Have, The Atlantic, June 2006,

available at http://www.theatlantic.com/doc/200706/
mockenhaupt-army/3 .......................................... 44
New York State Bar Association, Judge's Assistance, available at

http://www.nysba.org/content/NavigationMenu/ForAttorneys/
LawyersAssistanceProgramLAP/Lawyer_Assistance_Pr.htm .......... 3 7
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Page
New York State Commission on Drugs and the Courts, Confronting

the Cycle of Addiction and Recidivism (2002), available at
www.courts.state.ny.us/reports/addictionrecidivism.shtml ......... 14, 43
New York State Lawyer Assistance Trust, Annual Report of

the Board of Trustees at 6 (2002), available at
http://www.nylat.org/publications/annualreports/
documents/LATAnnualReport2006.pdf ........................... 36
New York State Unified Court System, Domestic Violence Courts:

Key Principles, available at www.courts.state.ny.us/ip/
domesticviolence/keyprinciples .shtml ...................... 14, 43, 44
Reflections of Problem-Court Justice, NYSBA Journal,

June 2000, at 14 .............................................. 39
Sue Shellenbarger, Even Lawyers Get the Blues:

Opening Up About Depression,
Wall Street Journal, Dec. 13, 2007, at Dl, available at
http://online. wsj .com/ public/article-print/
SBl 19751245108525653.html .................................. 36
Patricia Spataro, Vicarious Trauma: An Overlooked Source of

Burnout, Lawyers Assistance Trust News, Vol. 6, No. 3, at 3
(Summer 2007), available at http://www.nylat.org/publications/
newslettersdocuments/NewsletterSummer2007.pdf .................. 38
Robert A. Stein, Help is Available: The ABA Has Made Great

Strides in Reaching Out to Lawyers in Need, ABA Journal,
June 2005, at 64 .............................................. 36
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PRELIMINARY STATEMENT
[E]very judge is obliged to set aside his or her personal

problems upon entering the courtroom and to be an
exemplar of dignity, courtesy and patience.
Determination of Commission on Judicial Conduct in the Matter of Robert M.

Restaino. Record on Review ("R.") at 19.
Understandably, no Judge can respond with less than

pride to the flattering proposition that more may be
expected of judges than of ordinary mortals. It would be
regrettable in the extreme, however, if we were driven to
prove this by stripping members of our judiciary of the
right they share with all people to be judged fairly.
Matter of Spector, 47 N.Y.2d 462, 475, 418 N.Y.S.2d 565, 558 (1979)
(J. Fuchsberg, dissenting).
Judge Robert Restaino proved himself an ordinary mortal on March
11, 2005, when he reacted inappropriately to a breach of courtroom decorum.
When a cell phone or other electronic device went off and the owner of the device
failed to come forward to accept responsibility, Judge Restaino imposed an ill-
advised "collective punishment" and sanctioned all the defendants in his Domestic
Violence Court by reinstating or raising their bail. A short time later, he
recognized that his actions were wrong, and he ordered all the defendants released.
Today, he is remorseful and embarrassed by what he admits was misconduct.
-1-
The question before this Court is not whether Judge Restaino is guilty
of misconduct. It is clear that he is. Rather, the question is whether he deserves
the ultimate punishment for his actions. Because this Court has said repeatedly
that removal is appropriate only when a judge is unfit to serve, removal is
inappropriate here.
Judge Restaino's conduct that day was clearly aberrational. He had
never before engaged in any conduct even remotely similar to what occurred.
Indeed, the undisputed evidence at the hearing was that Judge Restaino's character
and reputation were completely the opposite: he was considered a paragon of
judicial temperament and fairness by judges, lawyers, courtroom staff, police
officers and defendants. Paraphrasing Judge Restaino's comment to the
psychiatrist who treated him after the event, on March 11, 2005, Judge Restaino
did something that he would not have done in his "wildest dreams."
Moreover, his eruption in court was the result of severe psychological
stressors at work and at home. At work, he labored with an overwhelming
caseload in his own court, while also volunteering to help alleviate the crushing
caseloads of other local courts. At home, his marriage deteriorated under the
weight of a past traumatic loss, and mounting marital strain. Judge Restaino's
response to all of his problems was to "bury" himself in more work. According to
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the psychiatrist and psychologist who testified at the hearing, these stressors were
exacerbated and became "unbearable" because of Judge Restaino 's regular service
in the Domestic Violence Court. The stress of serving in that court, and dealing
over and over with issues similar to his own marital strife, caused him to react in
what his mental health professionals viewed as a classic "displaced" eruption of
tension and frustration.
The psychiatric and psychological experts who have examined Judge
Restaino have opined that his overreaction will not be repeated. Now that Judge
Restaino is aware of the stressors and how they affected him, he will be on guard
not to let this recur. More importantly, Judge Restaino has taken a step that the
stigma of anxiety and depression prevent many professionals from taking: he has
sought professional help for his problem. Judge Restaino's new insight, combined
with his professional counseling, have caused his treating psychiatrist to opine that
this event was a "one and only time[,] lapse of judgment."
The mental health professionals have explained Judge Restaino's
behavior; they have not excused it, nor can they. But they have done one thing
more: they have made it clear that it will not be repeated. Because removal is
appropriate only when a judge is unfit to serve, Judge Restaino should be
permitted to return to the bench.
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QUESTION PRESENTED
Is the Hon. Robert M. Restaino fit to serve as a judge?
Answer below: The Commission on Judicial Conduct, by a 9 to 1
decision, answered no and recommended removal. The Chair of the Commission,
in a dissenting opinion, answered yes and recommended censure.
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STATEMENT OF FACTS
Judge Robert M. Restaino:
Robert Restaino was born in 1959 and raised in the City of Niagara
Falls in Western New York. Record on Review ("R.") at 670, 1271. His father,
Antonio, was an employee of the City of Niagara Falls and is now retired.
R. at 670. His mother, Rose, worked as a school crossing guard. R. at 397.
Judge Restaino has an older brother, Anthony, who is currently the Commissioner
of the Niagara County Department of Social Services. R. at 671. He also has a
younger brother and sister. R. at 671. When he was growing up, Judge
Restaino's family was of modest means and lived in one of the City's public
housing projects. R. at 578-79, 672.
Despite their financial difficulties, Judge Restaino's family was close-
knit and loving. R. at 979-80. To this day, the Restaino siblings enjoy a close
and loving relationship. R. at 980-81. Judge Restaino was strongly influenced by
the strong, solid marriage of his parents, who have been together for over 50 years.
R. at 712. His parents were his role models, and one of his life goals was to
emulate his parents' close relationship when he married. R. at 712-13, 986.
Judge Restaino was raised in the Roman Catholic faith, and he still
attends Mass every day, usually with his mother. R. at 712. He attended a
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Catholic grammar school and high school. R. at 672. He was elected student
council president in his senior year of high school. R. at 672.
Judge Restaino attended Niagara Community College, where he
received an Associate's Degree in Liberal Arts. He then obtained a Bachelor's
Degree from Niagara University, a Catholic institution, in 1981. R. at 673.
After graduating from Niagara University, Judge Restaino was
undecided about his future plans. His older brother Anthony had attended law
school but left after only one year. R. at 673. His brother's experience and the
fact that there had never been a lawyer in the family left Judge Restaino with
doubts about whether he could "make it" in law school. R. at 673. He set his
mind to it, however, and in 1982 he entered the University at Buffalo Law School.
R. at 673-74. He graduated in 1985, and he was admitted to the New York Bar in
1986. R. at 674.
After admission to the bar, Judge Restaino began the private practice
of law. R. at 675. He had a general practice, handling criminal, family court and
civil matters. R. at 525-26, 675. He also served as a part-time assistant public
defender for Niagara County, representing indigent defendants in criminal matters
in Niagara Falls City Court, Niagara County Court and Supreme Court.
R. at 675-76. In addition, he represented parties in Family Court matters.
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R. at 676. Witnesses at the hearing who knew Judge Restaino as a practicing
attorney -- including police officers, court clerks, other attorneys, and judges --
described him as a hard-working and dedicated advocate who always was
respectful and represented his clients professionally and zealously. R. at 144, 213,
225, 237, 538, 663. He was known as a "champion" of his clients' rights.
R. at 478.
Throughout his career, Judge Restaino has been a positive influence
in Niagara Falls, both in the legal community and in the wider community.
R. at 1292-94. He is a former President of the Niagara Falls Bar Association.
R. at 700-01, 1292-94. He served as a Director of the Legal Aid Society of
Niagara County. R. at 1292-94. He has been a Trustee and Chairman of the
Board of Trustees of Niagara Catholic High School, his alma mater. R. at 545,
702, 1292-94. He is an active supporter of and consultant to the Niagara Falls
Public Library, and he has served on the Library Board. R. at 554-55, 563-64,
702-03.
Judge Restaino has shown a particular concern for issues involving
families and children, especially those facing the type of economic disadvantages
he faced as a child. He is a member of the City of Niagara Falls School District's
Juvenile Justice Board. R. at 700, 1292-94. He serves on the Board of Directors
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for the Community Mission in Niagara Falls, a not-for-profit agency that provides
food, clothing and shelter to homeless and disadvantaged families. R. at 701. He
also served on the Board of Directors of the Boys & Girls Club of Niagara Falls,
which provides recreational activities for children who, for reasons including
financial hardship, would not otherwise be able to enjoy those activities.
R. at 701-02, 1292-94. He is a consultant to the Niagara County Domestic
Violence Intervention Program. R. at 699-700. Judge Restaino also has served on
the Boards of Directors for the Music School of Niagara and the Defranco Public
Charity for Education. R. at 1292-94.
Judge Restaino has received several awards from community
organizations. R. at 1292-94. Among other distinctions, he was selected for the
Niagara Falls Housing Authority's Wall of Fame, which identifies individuals who
grew up in the City's public housing projects but nonetheless have obtained a
level of accomplishment in the community. R. at 579, 703. The Wall of Fame
provides real-life examples for the current residents of the public housing projects,
showing them that with hard work they too can rise above their present
circumstances. R. at 578-79, 703.
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Career on the Bench:
In 1996, the Mayor of the City ofNiagara Falls appointed Judge
Restaino to a part-time position on the Niagara Falls City Court. Later that same
year, Judge Restaino was elected to a six-year term as a City Court Judge.
R. at 509-10, 676-77. As a part-time City Court Judge, Judge Restaino was
permitted to continue his private practice. Nevertheless, he limited his practice to
Family Court matters to avoid any conflict with his City Court duties. R. at 678.
In 2001, Judge Restaino was elected to a ten-year term as a full-time City Court
Judge. R. at 678-79.
The Niagara Falls City Court is an extremely busy court. R. at 506.
Indeed, due to the ever-increasing caseload, the Chief Judge of the court
characterizes it as a "zoo." R. at 506. The court is presently comprised of three
full-time judges. R. at 509, 523. Each of those judges has between 400 and 475
pending criminal cases. R. at 509. Judge Restaino handled an average of 100 to
120 cases on a normal day. R. at 679-80. From the time Judge Restaino assumed
the bench through October 2006, the Niagara Falls City Court disposed of over a
quarter of a million cases. R. at 511-12. Judge Restaino was responsible for
approximately 90,000 of those dispositions, even though he was only a part-time
judge for five of those years. R. at 511.
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Judge Restaino proved himself to be a valuable asset to the Niagara
Falls City Court. He was known for being prompt and efficient in handling his
busy calendar. R. at 162, 193, 517, 679, 715. He always made himself available
to assist the other judges with their responsibilities. R. at 524. According to the
Court's Chief Judge, Hon. Mark Anthony Violante, Judge Restaino never turned
down any request for assistance. R. at 524. He also helped institute new practices
and procedures, particularly in restructuring the civil calendar based upon his
experience in private practice. R. at 525-26.
Judge Restaino readily assumed challenging responsibilities in
addition to his regular calendar as a Niagara Falls City Court Judge. He accepted
appointments as Acting Niagara County Court Judge and Acting Niagara County
Family Court Judge. R. at 602, 697. These assignments helped to handle the
excessive caseloads of these courts -- a caseload the supervising judge of the
district's criminal courts called "crushing." R. at 602. The Administrative Judge
of the Eighth Judicial District appointed Judge Restaino to assist with these
crushing caseloads upon the recommendation of Chief Judge Violante. R. at 524.
As an Acting County Court Judge, Judge Restaino handled D and E level felonies.
R. at 697. As an Acting Family Court Judge, Judge Restaino presided over
custody and visitation cases, juvenile delinquency and Persons in Need of
-10-
Supervision matters, and other Family Court matters. R. at 694-95. Judge
Restaino also was appointed Acting Judge of the Buffalo City Court to help with
that Court's backlog. R. at 524-25, 1292.
While carrying out his duties as a Niagara Falls City Court City Court
Judge and the additional duties as an Acting Judge in three neighboring courts,
Judge Restaino has always met the "standards and goals" for his cases established
by the New York State Office of Court Administration. R. at 524, 596, 695.
Judge Restaino has been a member of the New York State City Court
Judge's Association and has served on the Executive Committee of that
organization for several years. R. at 522, 698-99, 1292-94. He is currently First
Vice President of the Association. According to Chief Judge Violante, Judge
Restaino has contributed to the effectiveness of the Association and has served
with distinction in all the Association's activities. R. at 522-23.
Virtually every witness who testified at the hearing attested to Judge
Restaino's impeccable reputation among the Niagara County bench, bar and
community-at-large. In sum, he is known as an intelligent, even-tempered and
unquestionably fair judge working hard in courts with oppressive, "crushing"
caseloads. R. at 527, 540-41, 547, 558, 566, 581, 587-88, 603-04, 666, 759.
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Participation in the Creation of the Niagara Falls Domestic Violence Court:
The Niagara Falls Domestic Violence Court is an initiative of the
Niagara Falls City Court designed to address the root causes of recurrent violence
in the home. R. at 96-97, 151-52, 682-83. The initiative was specifically
undertaken by the Niagara Falls City Court in response to the request of Hon.
Judith S. Kaye, Chief Judge of the State ofNew York. R. at 512. 1
The Domestic Violence Court is a type of "specialty" or "problem-
solving" court. R. at 151, 515. The program is intended to address the underlying
problems that lead to violent crimes against family members and other loved ones.
It is designed to assist certain individuals involved in the criminal justice system
to improve their lives so that they can, in tum, improve their interpersonal
relationships. R. at 682, 688, 965.
In the Domestic Violence Court, potentially eligible defendants are
screened following arrest and their first appearance on domestic violence charges.
R. at 96, 152, 683-84. Many of these individuals have had bail set at the time of
Based upon the model of the Brooklyn Felony Domestic Violence

Court, the New York State Unified Court System has encouraged the
development of special domestic violence courts, including in "high
volume" misdemeanor courts, based upon "problem solving justice"
concepts. See Hon. Judith S. Kaye & Susan A. Knipps, Judicial
Responses to Domestic Violence: The Case for a Problem Solving
Approach, 27 W.St. U.L. Rev. 1 (1999-2000).
-12-
their initial arraignment. If accepted into the domestic violence program, they are
ordinarily released on their own recognizance. R. at 687, 718, 817-18.
When a defendant is accepted into the program, he or she agrees to
participate in counseling, rehabilitation and education programs established by the
court and administered by outside human services agencies. Those programs
typically include drug and alcohol abuse counseling and anger management.
R. at 97-98, 152-53, 513, 682-83.
Participants in the Niagara Falls Domestic Violence Court are
required to report regularly to the court regarding their progress in counseling,
abstinence from controlled substances, and avoidance of other criminal activity.
At first, participants are required to report every week. Once a participant has
demonstrated commitment to and compliance with the program, the court may
permit him or her to appear less frequently. The standard period of participation
in the Domestic Violence Court is 26 weeks. R. at 684-85, 689. 628.
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If a participant in the Domestic Violence Court fails to comply with
the terms of the program, he or she is subject to "sanction" by the Court. 2
R. at 154-55. Among the sanctions the court can impose is a brief period of
imprisonment, which the court imposes by setting or raising bail on the underlying
criminal charge. R. at 154-55, 685-86. The Domestic Violence Court participants
know that this sanction is a possibility. R. at 349,378. It is common for one or
more defendants to be sanctioned in this manner and taken into custody for non-
compliance at any given weekly court appearance. R. at 155.
Judge Restaino was specifically chosen by Chief Judge Violante to
help set up the Domestic Violence Court of the Niagara Falls City Court and to
preside over it when it began taking cases. R. at 510, 513, 680-81. Chief Judge
Violante selected Judge Restaino because of his high opinion of Judge Restaino.
R. at 514-15. The Chief Judge lmew that Judge Restaino was experienced in both
2
Close judicial monitoring of the defendant's conduct, and the swift
and immediate imposition of sanctions by the judge for improper
behavior, are considered necessary features of problem-solving
courts, including domestic violence courts. See Center for Court
Innovation, Planning a Domestic Violence Court: The New York
Experience at 6 (2004), available at http://www.courtinnovation.org/
index.cfm; New York State Commission on Drugs and the Courts,
Confronting the Cycle of Addiction and Recidivism, at 3 8 (June
2000), available at http://www.courts.state.ny.us/reports/
addictionrecidivism.shtml.
-14-
domestic violence matters and problem-solving models. R. at 514-15. Chief
Judge Violante also believed that Judge Restaino had a special interest in assisting
families and was uniquely qualified to set up and run the part. R. at 514-15. For
eight years, Judge Restaino presided over the Domestic Violence Part, earning the
praise of Chief Judge Violante and others for his dedicated, confident and
compassionate handling of that court. R. at 156-58, 516-17.
During the time Judge Restaino presided over the Domestic Violence
Court, there were typically between 60 and 70 participants who attended the
weekly court sessions. R. at 155, 715. Judge Restaino conducted those sessions
on Friday mornings. R. at 681.
Judge Restaino not only succeeded in setting up and running the
Domestic Violence Court effectively and compassionately, he also expanded the
program to address a need he recognized: the alarming number of youths involved
in domestic violence. R. at 157, 518-21, 692. Judge Restaino conceived,
implemented and coordinated the Adult and Teenage Opportunities for
Non-Violence Education (ATONE) Program, which began in 2002. R. at 518-21,
692. The ATONE Program was a specialized part within the Domestic Violence
Court. Id. As part of this innovative program, young adult defendants were
removed from the adult calendar, and their matters were handled separately. The
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young defendant, were required to appear for the calendar with their parents or
guardians, and sometimes with their educators and counselors. R. at 518-20.
Through the input of these participants, Judge Restaino could familiarize himself
with all aspects of each defendant's life and tailor an approach to each defendant's
individualized needs. R. at 157, 519-20. In supervising the ATONE Program,
Judge Restaino regularly traveled to the local high school to visit the young
defendants in their classrooms. R. at 157.
The ATONE Program was a great success story. R. at 521, 693. The
supervising judge of the Eighth Judicial District, Hon. Sharon S. Townsend,
intended to expand the program throughout the Eighth Judicial District. R. at 520.
Unrecognized and Untreated Psychological Stressors:
Though Judge Restaino appeared to be functioning well as a highly
respected judge known for his good temperament, the undisputed testimony at the
hearing was that he was silently battling extreme psychological stress.
Judge Restaino was presiding in several courts with overwhelming
caseloads. As a City Court Judge, he had an active caseload of 400 to 475
criminal cases and handled 100 to 120 cases on a daily basis. R. at 679-80. He
heard between 300 to 500 cases each and every week. R. at 714. During a 10-year
-16-
period, he disposed of approximately 90,000 cases. R. at 511-12. He accepted
assignments as an acting judge in other courts in Niagara County and Erie County
to help with the "crushing" caseloads in those courts. R. at 602, 697. Indeed, he
never turned down any request for assistance. R. at 524. He also spent time trying
to improve the courts, and he initiated innovative new programs that would benefit
the justice system and community. R. at 157, 518-21, 525-26, 692.
Adding to the stress of this oppressive workload was severe stress in
his home life. Judge Restaino had always yearned for the type of marriage his
parents enjoyed -- a close, supportive and loving relationship. But in recent years,
he found himself and his wife growing quite detached from one another.
R. at 705, 990-91. In Judge Restaino's words, things had become "quite distant"
between them. R. at 705. Mrs. Restaino seemed to withdraw, and their ability to
share and communicate became less and less. R. at 706. The two had virtually no
social life together. R. at 711. Judge Restaino described their relationship as
becoming "like we were roommates, even less than roommates." R. at 706. On
several occasions, Judge Restaino asked his wife to go to marriage counseling, but
she refused. R. at 708. Divorce was not an option for Judge Restaino because of
his adherence to the teachings of the Roman Catholic Church. R. at 711-12.
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Unfortunately, Judge Restaino did not seek out any help or assistance
in dealing with his slowly deteriorating marriage. R. at 706, 709, 991-92. Instead,
he tried to deal with the problems by losing himself at work: "It has always been
my, when confronted with sorts of problems, just to work. I would bury myself
into work. I would try to work harder to occupy my mind, occupy my time, and
give me, an avenue other than thinking about those things that are troubling me."
R. at 709. With stress at work and stress at home, he had nowhere to go for
respite.
Judge Restaino's marital difficulties became more and more
frustrating for him in light of his work in the Niagara County Family Court and the
Domestic Violence Part of the Niagara Falls City Court. In those courts, the Judge
considered it part of his job to help the parties solve their domestic problems.
R. at 707. But he was unable to solve his own problems, and that added to his
stress and growing sense of frustration. R. at 707-09. After presiding in these
courts and helping the litigants to resolve their own issues, he would go to a home
that suddenly struck him as "an empty place for me." R. at 709-09.
According to Dr. , the who treated
Judge Restaino after the events in March 2005, the stress on Judge Restaino was
exacerbated by the fact that his children were approaching adulthood and soon
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would be leaving for college and graduate school. R. at 467-69. Dr.
testified that the imminent future of an empty nest caused the grief from the
stillbirth of Judge and Mrs. Restaino's third child many years before to resurface.
R. at 467. According to Dr. Mrs. Restaino had never adequately dealt
with her grief over the loss of this child and had never been able to bring herself
to visit the graveyard. R. at 467. Dr. opined that these family situations
combined to "raise[] the stress level again beyond the bearable point."
R. at 468-69.
Events of March 11, 2005:
The facts regarding the events of March 11, 2005 have never been in
dispute. Virtually all the events occurred on the record in court, and the transcript
has always been available. R. at 998-1066. In addition, Judge Restaino admitted
all the factual allegations in the formal written complaint. R. at 43. Likewise,
Judge Restaino did not dispute the findings of the Referee (see R. at 1511-13 ), and
he does not dispute the 27 individually numbered findings of fact made by the
majority of the Commission in its Determination. See R. at 5-13.
On March 11, 2005, Judge Restaino presided over the regularly
scheduled Friday morning term of the Domestic Violence Court. After
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approximately one hour of the session, at approximately 10:00 a.m., a cell phone
or other electronic device rang in the seated gallery of the courtroom. R. at 99,
165-66, 177, 195-96, 715, 725, 835, 1021.
All visitors to Niagara Falls City Court are advised in several ways
that cell phones and electronic devices are to be turned off before entering court.
Court security officers at the entrances to the court building warn everyone
entering the building to tum off their cell phones. R. at 195, 223, 642, 725-26.
Officers standing at the entrance to the courtroom itself similarly warn people
entering the courtroom to tum off their electronic devices. R. at 195. A printed
sign outside each of the courtrooms, including the courtroom in question, advises
those entering the courtroom to make sure that their cell phones are turned off.
R. at 223.
When Judge Restaino heard the electronic device, he asked whoever
possessed it to bring it to the bench. R. at 100, 165-66. Judge Restaino repeated
his request, but no one in the courtroom accepted responsibility for the device.
R. at 101, 1021-23. Judge Restaino advised the defendants seated in the
courtroom that he would reinstate the bail of each defendant and would remand
each defendant to custody unless someone stepped forward to take responsibility.
R. at 728, 838, 1021-23.
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When none of the defendants took responsibility for the disturbance,
Judge Restaino left the bench and took a recess for a few minutes. R. at 101, 106,
166, 730, 843. In his absence, the defendants in the courtroom spoke amongst
themselves, encouraging the responsible person to come forward. When Judge
Restaino returned, he asked the court officers whether the device had been located,
and he was told that it had not. R. at 730, 1022.
Judge Restaino resumed the Domestic Violence Court calendar,
calling the case of each defendant -- including 11 defendants whose cases had
been called prior to the interruption of the electronic device. See generally
R. at 1021-66. Judge Restaino questioned each defendant about his or her
knowledge of the device. Id. After each defendant denied having the device or
knowing who had it, Judge Restaino "sanctioned" each defendant by reinstating or
raising bail, and he remanded them into custody. R. at 728. In total, Judge
Restaino committed 46 defendants. R. at 37-38, 43.
Of the 46 defendants remanded to custody, approximately 32 already
had bail on account with the court or were able to post new bail and were therefore
promptly released from police custody within hours. R. at 1512. Fourteen
defendants could not post bail and were committed to the custody of the Niagara
County Sheriff. Id. These defendants were transported -- in handcuffs and leg
-21-
shackles, as per the policy of the Sheriffs Office -- from the Niagara Falls City
Court Building to the Niagara County Jail. R. at 255-56.
Immediately following the Domestic Violence calendar, which ended
at approximately 11 :30 or 11 :45 a.m., Judge Restaino attended a scheduled tour of
a juvenile detention facility in Erie County. R. at 790. During the tour, Judge
Restaino reflected on his conduct and realized that he had made a gross error in
judgment. R. at 790-91. He decided to call the court staff so that arrangements
could be made to release any of the defendants still in custody. 3 Because he does
not own a cell phone, Judge Restaino asked the person giving the tour ifhe could
use a phone in a conference room. He called the Chief Clerk of the Niagara Falls
City Court and instructed that all necessary resources be assembled to accomplish
the release of the defendants. R. at 790-91. Judge Restaino returned from the tour
and, as soon as the court staff assembled the necessary files and personnel, he
3
In its Determination, the Commission comments that Judge Restaino
did not take any steps to arrange for the defendants' release until
learning from a court clerk that the press had inquired into his actions.
R. at 12. In a concurring opinion, one of the Commissioners goes
further, alleging that Judge Restaino realized his error only "when" he
learned the press was interested. R. at 22. Judge Restaino testified,
however, that he realized the error of his action and decided to effect
the release of all the defendants before he spoke to the court clerk.
No evidence contradicting this assertion was introduced, nor did the
Commission exercise its right to call the court clerk as a rebuttal
witness.
-22-
ordered the release of the 14 individuals still in custody. Release orders were
faxed to the jail at approximately 4:50 p.m. By approximately 6:00 p.m., all the
defendants who had been transported to the jail were released from custody.
R. at 260-61, 342, 373, 655, 1253-56.
Aftermath of March 11, 2005:
On Monday, March 14, 2005 -- the very next business day after the
courtroom events of March 11 -- Judge Restaino placed a call to the Lawyers
Assistance Program, which offers counseling and other services to lawyers
experiencing problems with depression, stress, other mental illnesses and
substance abuse. Judge Restaino testified that he decided to call the program after
reflecting on his conduct of March 11, 2005, and recognizing that "there is
obviously something that I wasn't dealing with correctly and I know what was
going on in my private life, my personal life." R. at 792. He recalled a mailing
that he had received regarding the Lawyers Assistance Program, consulted the
mailing, and saw that services were available to lawyers and judges suffering from
"stress." R. at 792-93. He called the number on the mailing, and was put in touch
with Mr. Ray Lopez, the Program Director. Mr. Lopez asked Judge Restaino
about the nature of his problem, and Judge Restaino explained what had happened
-23-
the previous Friday. R. at 793. Mr. Lopez referred Judge Restaino to psychologist
. R. at 463, 794. Judge Restaino called Dr. the same
day to make an appointment. R. at 794.
Dr. was educated at Harvard University and the State
University of New York at Buffalo. R. at 461-62. Over the years, Dr. has
seen many patients referred by the Lawyers Assistance Program. Due to that
relationship, Dr. has treated numerous attorneys and judges facing various
stressors in their lives. R. at 462.
Judge Restaino met with Dr. for the first time on March 18,
2005, one week after the March 11 incident. R. at 463, 475, 794, 1274-75. Dr.
found Judge Restaino to be depressed, with a demeanor that was
"chastened." R. at 464. Judge Restaino was tearful, sad and remorseful.
R. at 464. Dr. diagnosed Judge Restaino with depression and mounting
stress. R. at 1274.
Dr. began counseling Judge Restaino and had a total of five
therapy sessions with him. R. at 465, 467, 794-95, 1274-75. Dr. explored
Judge Restaino's professional and personal life, focusing particularly upon the
stress caused by Judge Restaino's marital problems. R. at 466-67, 1274-75. Dr.
found that Judge Restaino's marriage was a "severe stressor" to him.
-24-
R. at 467, 1274-75. He identified a past trauma to the Restainos as a factor
contributing to the "mounting stress." R. at 1274. Though the Restainos were
blessed with a son and a daughter, a third child -- a daughter whom they had
named -- was stillborn. R. at 1274. Dr. believed that unresolved feelings
of grief -- Mrs. Restaino had never been able to visit their daughter's grave
-- resulted in severe marital strain. R. at 466-67, 1274. Mrs. Restaino refused to
participate in Dr. counseling efforts. R. at 494-95.
Dr. characterized Judge Restaino's progress in therapy as
"startling." R. at 1274-75. According to Dr.
R. at 1274-75.
Judge Restaino later obtained an evaluation and counseling by board-
certified forensic psychiatrist , M.D. Dr. is a highly
-25-
credentialed physician who has extensive experience in medical-legal issues.
R. at 387-93.
Dr. initially met with Judge Restaino in May 2005. R. at 393,
401, 1271-1273. Judge Restaino continued counseling sessions with Dr.
ultimately seeing Dr. approximately 13 times between May 2005 and the
time of the hearing in this matter. R. at 412, 796.
As a result of his evaluation and treatment of Judge Restaino, Dr.
agreed with Dr. that the Judge's marital situation was a severe
stressor that played a role in bringing about the Judge's aberrant behavior on
March 11, 2005. Dr. explained his opinion as follows:
-26-
R. at 402-03. Dr. characterized the cell phone interruption in the
courtroom as the "last straw" in Judge Restaino's "growing sense of frustration."
R. at 409-10.
Dr. also found it significant that Judge Restaino's "displaced"
en1ption occurred in Domestic Violence Court. R. at 406. Dr. opined that
Judge Restaino 's marital stress found expression in the Domestic Violence Part
because "marital strife is the sum and substance of that part." R. at 407.
Judge Restaino testified that the intervention ofDrs. and
has been very helpful to him individually and to his relationship with his
wife. He and Mrs. Restaino have gained greater insight into the problems
affecting their relationship. Further, the Judge has greater insight into how
stresses in his personal life can affect him on the job. As the Judge explained:
I suspect there are a lot of people who feel this way, you
lmow you deal with, everyone deals with tension and
stress and those types of things and often it isn't the first
course to go see a therapist or a psychologist, or a
psychiatrist or a physician to talk about your problems
and as I said to you earlier, my method of addressing it
was simply to work harder, to take my problems and
bury them under a workload that would divert my
attention from the problem and clearly I wasn't making
the problem go away. In my discussions with Dr.
-27-
that's one of the things that I was talking about
earlier when I said to you I made some, it's helped me
personally as well as helped me in my marriage and that
he has, first of all talking to Dr. helped me
recognize that it's not a bad thing to talk with
professionals about these issues. It is as appropriate as
any other problem that you go to a physician about, and
Dr. as well has given me --- that sense and that
advice.
R. at 797.
Significantly, both Dr. and Dr. testified that Judge
Restaino is free from mental disease or defect. R. at 411, 468-69. Dr.
specifically testified that given the counseling treatment, Judge Restaino is not at
risk for a similar eruption in the future. R. at 413.
Proceedin~s Before the Commission:
On June 20, 2006, the Commission issued a notice of formal written
complaint. R. at 35-42. Judge Restaino answered the written complaint, admitting
all the factual allegations. R. at 45-46. The Commission designated Hon. Edgar
C. NeMoyer as referee to hear and report proposed findings of fact and
conclusions of law. R. at 45. The hearing was held over three days in November
2006. Though Judge Restaino had admitted the factual allegations of the written
complaint, and though there was an actual transcript of the proceedings at issue,
-28-
the Commission's attorney called 10 witnesses to testify about the events of March
11, 2005.
Judge Restaino called Drs. and who both provided a
psychological explanation for Judge Restaino's conduct in court that day.
Numerous character witnesses also testified, including the Chief Judge of the
Niagara Falls City Court; the Supervising Judge of the Criminal Courts for the
Eighth Judicial District; the Supervising Judge of Domestic Violence Courts in the
Eighth Judicial District; attorneys with experience both as prosecutors and
defenders; community leaders; police officers; court employees; and litigants.
Even one of the defendants whom Judge Restaino remanded into custody on
March 11, 2005, testified on Judge Restaino's behalf. R. at 604-18. Finally,
Judge Restaino himself testified. R. at 669-96. He unequivocally admitted his
misconduct, expressed remorse, and explained the steps he had taken through
counseling and treatment to address the underlying causes of his behavior on
March 11, 2005. Id.
The Referee issued a report dated March 30, 2007. R. at 1511-13.
He found that the allegations of the formal written complaint had been proven. Id.
He also made findings regarding the evidence offered by Judge Restaino in
mitigation:
-29-
The judge testified at length during the proceeding and
expressed remorse for his conduct, which appeared to be
sincere. Following this incident, [Judge Restaino]
sought treatment from psychologist ,
and psychiatrist , both of whom testified
as to their treatment of [Judge Restaino] and their
opinion that something of this nature would not likely
reoccur. Both have impressive credentials and gave
persuasive testimony. The testimony also indicated that
[Judge Restaino] had been an efficient and competent
judge outside of this incident and is well-regarded in the
community.
R. at 1512.
On September 19, 2007, the Commission heard oral argument.
R. at 1641-1715.
On November 13, 2007, the Commission issued its determination,
sustaining the charges and concluding that Judge Restaino violated§§ 101.1,
100.2(A), 100.3(B)(l), 100.3(B)(3) and 100.3(B)(6) of the Rules Governing
Judicial Conduct. Nine members of the Commission voted to recommend removal
as the appropriate sanction. R. at 17.
The Chair of the Commission dissented, voting that censure was a
sufficient sanction. R. at 24-31. The Chair found that Judge Restaino's conduct
"was a total aberration from his character and demeanor as a judge for 11 years
(and previously as public defender for 10 years) .... " R. at 24-25. The Chair felt,
-30-
after careful consideration of the matter, that censure was the more appropriate
remedy:
Having listened to the judge, and having considered the

matter carefully, I cannot find it within myself to destroy
this individual's professional life over this regrettable
episode. The record shows without contradiction that he
is a decent, humble, dedicated individual who is well-
liked and respected .... Although the ultimate cause of
[Judge Restaino's] bizarre behavior that day may never
be known with certainty, it is uncontroverted that the
conduct was a profound aberration in an otherwise
unblemished career. On a human level, I simply do not
believe that such an episode should outweigh a lengthy,
distinguished career of public service.
R. at 30-31.
Judge Restaino filed a timely request for review of the Commission's
determination. R. at 3.
-31-
ARGUMENT
REMOVAL IS NOT THE APPROPRIATE SANCTION.
I. THIS COURT SHOULD DETERMINE THE APPROPRIATE

SANCTION.
As this Court has noted, the powers of review in judicial conduct
matters, particularly as to the appropriate sanction, are different than in other
matters. The scope of this Court's review in judicial conduct matters "is broader
than that traditionally assigned to an appellate court." Matter of Quinn, 54 N.Y.2d
386, 391, 446 N.Y.S.2d 3, 6 (1981) (citation omitted). Under the provisions of the
New York Constitution and Judiciary Law that govern such reviews:
We are not limited to considering alleged errors of law.

Nor in considering the propriety of the sanction are we
bound to treat the Commission's determination with the
same deference due to other State agencies by
considering it beyond our review unless found to be
'shocking to one's sense of fairness.' ... On the
contrary, in matters involving the conduct and continued
fitness of judicial officers, the Constitution has conferred
upon this Court broad plenary power to determine the
facts and appropriate sanction in the exercise of its own
sound discretion and judgment.
Matter of Quinn, 54 N.Y.2d at 391, 446 N.Y.S.2d at 6-7 (1981) (citation omitted).
Indeed, this Court is specifically "vested not only with the authority to review the
Commission's findings of fact and conclusions of law, but also to determine the
-32-
appropriate sanctions for the misconduct found and to impose a less or more
severe sanction." Matter of Sims, 61 N.Y.2d 349, 353, 474 N.Y.S.2d 270, 272
(1984). "In passing on the sanction to be imposed against a judge found to have
engaged in misconduct, this Court is presented with one of the rare occasions
when it may review findings of fact and determine of its own accord what penalty
shall be imposed against a party." Matter of Kelso, 61 N.Y.2d 82, 86-87, 471
N.Y.S.2d 839, 841 (1984) (citation omitted).
In light of the unique circumstances here, this Court should impose a
sanction of censure, not removal.
-33-
II. IN DETERMINING THE APPROPRIATE SANCTION, THIS
COURT SHOULD CONSIDER THE EVIDENCE THAT THE
MISCONDUCT WAS THE RESULT OF PSYCHOLOGICAL
STRESSORS, WHICH HAVE BEEN ADDRESSED BY PETITIONER.
What happened is not at issue. Whether some sanction is warranted
has already been conceded. But this Court should indeed be interested in why this
aberrational conduct occurred because the answer to that question can help guide
this Court toward the most appropriate penalty.
The psychological evidence submitted at the hearing explains why the
misconduct occurred. This evidence by no means excuses what Judge Restaino
did, nor does it exonerate him from blame. But it does provide insight into how a
well-respected jurist with such a remarkable and exemplary past could make such
an uncharacteristic mistake. And that insight should enable this Court to better
evaluate the misconduct in light of Judge Restaino's prior service and to determine
whether he is unfit to serve.
The Commission essentially chose to ignore this evidence. In a single
paragraph, it belittled and dismissed the significance of the psychological
testimony, observing that judges are "obliged" to set aside all personal problems
before entering the courtroom. But that approach is tantamount to holding judges
to the superhuman standard Judge Fuchsberg criticized in the quote at the
-34-
beginning of this brief. And it judges jurists less fairly than others, exactly what
Judge Fuchsberg said the Court should guard against.
The psychological evidence should have been given more careful
consideration.
A. This Court Should Consider Evidence of Psychological Factors in

Judicial Disciplinary Matters.
The scientific community has long recognized the relevance of
psychological factors in assessing one's conduct. In certain contexts, such as
criminal law, family law and personal injury, the legal system takes psychological
factors into consideration on a regular basis. In fact, an entire discipline -- the
field of forensic psychiatry -- deals with how law and psychiatry fit together.
Ironically, the legal profession has only recently come to accept the
undeniable fact that its own members are affected by psychological issues.
Despite evidence that the legal profession experiences one of the highest rates of
depression and stress (see William W. Eaton, Occupations and the Prevalence of
Major Depressive Disorder, Journal of Occupational Medicine, Vol 32, No. 11 at
p. 1079 (1990)), the fear of a negative stigma has prevented lawyers from seeking
professional help. See Dan Lukasik, Depression in the Legal Profession: Let's
-35-
Help, Lawyers Assistance Trust News, Vol. 6, No. 3, at 8 (Summer 2007),
available at http://www.nylat.org/publications/newsletters/documents/
NewsletterSummer2007.pdf; Sue Shellenbarger, Even Lawyers Get the Blues:
Opening Up About Depression, Wall Street Journal, Dec. 13, 2007, at Dl,
available at http://online.wsj.com/ public/article-print/SBl 19751245108525653.
html. But that seems to be changing in recent years. Thanks to the leadership of
the court system and bar associations, there is increased awareness of the
psychological problems that lawyers may face. See Robert A. Stein, Help is
Available: The ABA Has Made Great Strides in Reaching Out to Lawyers in
Need, ABA Journal, June 2005, at 64. In the past few years, the State's Lawyer
Assistance Programs have seen the number of calls relating to depression, stress,
anxiety and burnout "increase dramatically." New York State Lawyer Assistance
Trust, Annual Report of the Board of Trustees at 6 (2002), available at
http://www.nylat.org/publications/annualreports/documents/LATAnnual
Report2006. pdf.
As anyone familiar with the attorney disciplinary system knows, that
system has played an important role in bringing about a change in attitude towards
these problems. The willingness of the disciplinary system to take psychological
considerations into account in determining the appropriate punishment for lawyers
-36-
facing discipline has resulted in a fairer system which actually encourages
attorneys in need of help to come forward.
A growing body of research suggests that the psychological stressors
experienced by judges are the same as, if not greater than, those suffered by
practicing attorneys. See, ~, Monica K. Miller, et al., Addressing the Problem of
Courtroom Stress, 91 Judicature 60 (Sept-October 2007); Monica K. Miller &
James T. Richardson, A Model of Causes and Effects of Judicial Stress, 45 No. 4
Judges J. 20 (Fall, 2006). The New York State Bar Association recently created a
"Judge's Assistance Program" to mirror the services available to lawyers through
its Lawyer's Assistance Program. The program offers help to judges suffering
from depression and stress. See New York State Bar Association, Judge's
Assistance, available at http://www.nysba.org/content/NavigationMenu/
ForAttorneys/LawyersAssistanceProgramLAP/Lawyer_Assistance_Pr .htm. The
psychological stressors are particularly severe for those judges who work in high
volume courts and who deal with stressful cases, such as domestic violence
matters. See Peter G. Jaffe, et al., Vicarious Trauma in Judges: The Personal
Challenge of Dispensing Justice, 54 Juv. & Family Ct. Journal 1 (2003); see also
Andrew P. Levin, Vicarious Trauma in Attorneys, 24 Pace L. Rev. 245 (2003).
-37-
Research also has shown that judges and attorneys who work in
domestic violence courts can experience a range of reactions to their high stress,
high workload settings. See Jaffe, supra; Levin, supra. Mental health
professionals give various labels to these phenomena, including "Compassion
Fatigue," "Secondary Traumatic Stress" and "Vicarious Traumatization." See
Levin, supra at 245-46; see also Patricia Spataro, Vicarious Trauma: An
Overlooked Source of Burnout, Lawyers Assistance Trust News, Vol. 6, No. 3, at
3 (Summer 2007), available at http://www.nylat.org/publications/newsletters
documents/NewsletterSummer2007.pdf; Barbara Glesner Fines & Cathy Madsen,
Caring Too Little, Caring Too Much: Competence and the Family Law Attorney,
75 UMKC L. Rev. 965 (2000). Those who work in the domestic violence field,
including judges, are also at high risk for the psychological syndrome known as
"burnout." Levin, supra at 248. Experts believe that these various conditions
result from the burdens of overwhelming workloads, the accumulation of stress,
and the unique emotional impulses associated with these types of case. See, Jaffe,
supra; Ian M. Gomme and Mary P. Hall, Prosecutors at Work: Role Overload and
Strain, Journal of Criminal Justice, Vol. 23, No. 2, at 191 (1995).
Moreover, judges in problem-solving courts, such as domestic
violence courts are encouraged to develop an empathetic connection with the
-38-
defendants and to take personally the defendants' successes and failures. See
Richard Boldt and Jana Singer, Juristocracy in the Trenches: Problem-Solving
Judges and Therapeutic Jurispn1dence in Drug Treatment Courts and Unified
Family Courts, 65 Md. L. Rev. 82, 87 (2006). This connection and emotional
investment also takes its toll on judges. See, Levin, supra. The results can include
depression, frustration, anger, intolerance of others and a sense of isolation. See,
Jaffe, supra; Levin, supra.
The risk of stress, burnout and other psychological problems faced by
judges in domestic violence courts has been recognized in this state. In a
publication of the New York State Bar Association, the Hon. John Leventhal,
Presiding Judge of the Brooklyn Domestic Violence Court, commented that there
was a "downside" to his work. Reflections of Problem-Court Justice, NYSBA
Journal, June 2000, at 14. According to Justice Leventhal, "I live with my cases
all the time, which can interfere with my time outside of the court." Id. A
publication by the Center for Court Innovation, a public/private partnership with
the New York State Unified Court System, warns that psychological burnout is
indeed a risk in domestic violence parts. See Center for Court Innovation,
Planning a Domestic Violence Court: The New York State Experience, (2004)
("Bench burnout is another issue confronting the court."). The same publication
-39-
quotes Judge Leventhal as saying that even after eight years of working in the
Domestic Violence Court, he "constantly considers asking to be reassigned." Id.
For Judge Restaino, his depression, marital stress, and work in the
Domestic Violence Court created the perfect storm. The ringing cell phone simply
put into motion the factors that already were there. Again, that does not excuse his
behavior, but it does explain it. And that explanation, coupled with the expert
testimony (and the Referee's conclusion) that the conduct will not be repeated,
demonstrates that Judge Restaino is indeed fit to resume his duties.
Though petitioner attempted to place this issue before the
Commission, the Commission belittled and dismissed it. Indeed, the
Commission's reaction -- commenting that everyone has stress, that judges are
above that, and that judges must never let stress get the better of them -- is exactly
the type of attitude that perpetuates the negative stigma feared by any judge who
should seek treatment for stress or other psychological problems. By
demonstrating that it is open to consider evidence of psychological factors in
judicial disciplinary matters, this Court can acknowledge the deleterious effect of
untreated and unmanaged stress and at the same time help dispel the unfortunate
and counterproductive stigma attaching to those who seek help.
-40-
B. The Psychological Evidence Submitted by Petitioner Supports a
Sanction Less Severe Than Removal.
The evidence at the hearing demonstrated that what happened on
March 11, 2005 was indeed the result of psychological issues exacerbated by
stress in the work place and at home. Judge Restaino worked tirelessly in a court
that was a "zoo," while also serving as an acting judge in different courts with
"crushing" caseloads. As part of his duties, he worked in a domestic violence part
that carries a significant risk of "burnout" and other psychological problems. At
the same time, Judge Restaino believed that his marriage was deteriorating.
Despite his hope that he would enjoy a loving and supportive relationship like his
parents had, his relationship with his wife came to resemble something "less than
roommates." To make bad matters worse, he felt trapped in his marriage: As a
devout Catholic, he did not have the option to divorce. Despite repeated requests,
his wife refused to attend counseling with him. Sadly, he also did not feel that he
could seek out psychological counseling himself. Despite the fact that as a judge
he often recommended counseling to defendants before him, he was unable to
recognize the extent of his own problem and accept his own need for counseling.
His response to the problem was to bury himself in more work.
-41-
The experts who testified at the hearing explained the effect of all
this. Psychiatrist described how Judge Restaino's growing
frustrations and stress were exacerbated by his presiding over the Domestic
Violence Court. Dr. observed that Judge Restaino's inner turmoil, caused
by difficulties in his own domestic relationship, were mirrored by the domestic
strife he saw regularly in the Domestic Violence Part. R. at 407. In short, his
personal problems were figuratively played out over and over every time he
presided in the Domestic Violence Court. Judge Restaino's response -- to "bury
himself' at work -- not only did not resolve these issues, it made them worse.
The stresses and increasing fn1stration became "unbearable,"
according to psychologist . The ringing cell phone on
March 11, 2005 was, figuratively, the "straw that broke the camel's back."
R. at 468. All Judge Restaino's frustration and anger at his marital situation came
out in a classic "displacement" -- similar to someone kicking a pet to vent anger or
frustration from some other source. R. at 402-03. And the fact that Judge
Restaino was presiding over Domestic Violence Court contributed to his eruption
because his own internal stress was likewise caused by domestic strife.
R. at 406-07.
-42-
The manner in which Judge Restaino's eruption manifested itself also
was a function of where it occurred. One of the distinguishing features of
problem-solving courts, including domestic violence courts, is close monitoring of
the defendants to ensure proper conduct. See New York State Commission on
Drugs and the Courts, Confronting the Cycle of Addiction and Recidivism at 17
(2002), available at http://www.courts.state.ny.us/reports/addictionrecidivism.
shtml Center for Court Innovation, Planning a Domestic Violence Court at 6
(2004 ). It is vital to the success of a problem solving court that a single authority
figure -- the judge -- be empowered to impose swift and immediate sanctions or
punishment for non-compliance or any other misconduct. See Confronting the
Cycle of Addiction and Recidivism, supra at 99; Susan A. Knipps & Greg Berman,
New York's Problem-Solving Courts Provide Meaningful Alterations to
Traditional Remedies, NYSBA Journal, June 2000, at 10. Judges in specialty
courts are encouraged to impose discipline swiftly and with certainty. See
Confronting the Cycle of Addiction and Recidivism, supra at 38; New York State
Unified Court System, Domestic Violence Courts: Key Principles, available at
http://www.courts.state.ny.us/ip/domesticviolence/keyprinciples.shtml; Center for
Court Innovation, Domestic Violence Courts available at http://www.court
-43-
innovation.org/index.cfm. Furthermore, specialty courts often attempt to foster a
"team approach" and consequently encourage the use of "consistent" treatment of
defendants, including uniform punishments. 4 See Center for Court Innovation,
Domestic Violence Courts, supra; New York State Unified Court System,
Domestic Violence Courts: Key Principles, supra .
As Judge Restaino testified, when he imposed his collective
punishment upon the Domestic Violence Court defendants on March 11, 2005, he
believed at the time that he was carrying out the concepts of the court. R. at 728,
729-30, 839, 856. He was imposing a swift, uniform, certain and collective
punishment on the defendants for what he believed was a breach of courtroom
decorum. Of course, Judge Restaino overreacted, and he has repeatedly admitted
that. But the particular way in which his growing stress and frustration was
expressed on March 11, 2005, reflects the cause of that stress: his service in the
Domestic Violence Court.
4
The concept of collective punishment, though not expressly discussed
in the literature regarding specialty courts, is well known in other
arenas, including schools, sports teams and the military. See, M.,.
Daryl J. Levinson, Collective Sanctions, 56 Stan. L. Rev. 345 (2003);
Brian Mockenhaupt, The Army We Have, The Atlantic, June 2006
available athttp://www.theatlantic.com/doc/200706/mockenhaupt-
army/3. ("The threat of collective punishment for individual
infractions is one of the most powerful motivators in military
training.").
-44-
III. BECAUSE PETITIONER IS FIT TO SERVE AS A JUDGE, HE
SHOULD NOT BE REMOVED FROM OFFICE.
A. Removal Is Appropriate Only When the Jud2e Is Unfit.
As this Court has stated repeatedly and without exception, the
purpose of the sanction of removal is not punishment, but protection: Removal is
warranted only to protect the public by taking unfit incumbents off the bench. See
generally Matter of Watson, 100 N.Y.2d 290, 303, 763 N.Y.S.2d 219, 226 (2003);
Matter of Esworthy, 77 N.Y.2d 280, 293, 567 N.Y.S.2d 390, 391 (1991).
Removal is "an extreme sanction" that "should not be ordered for conduct that
amounts simply to poor judgment, or even extremely poor judgment." Matter of
Cunningham, 57 N.Y.2d 270, 275, 456 N.Y.S.2d 36, 38 (1982); see also Matter of
Kiley, 74 N.Y.2d 364, 369-70, 547 N.Y.S.2d 623, 625 (1989) (characterizing the
removal as the "ultimate sanction").
"The actual levels of discipline to be imposed by the court for judicial
misconduct are, in the end, institutional and collective judgment calls. They rest
on [this Court's] assessment of the individual facts of each case, as measured
against the Code and Rules of Judicial Conduct and the prior precedent of this
Court." Matter ofDuckman, 92 N.Y.2d 141, 152, 677 N.Y.S.2d 248, 254 (1998)
(citations omitted). In reviewing a recommendation of removal, the Court's
-45-
"objective" is "to attempt to assess petitioner's fitness based on his prior record."
Matter ofDuckman, 92 N.Y.2d at 156n.6, 677 N.Y.S.2d at 256n.6.
B. The Undisputed Evidence Indicates That Petitioner Is Fit to

Serve.
When this Court has rejected a Commission recommendation of
removal and imposed a lesser sanction, it has noted the presence of one or more
factors indicative of the jurist's continued fitness to serve. Among these factors
are: a record of exemplary service on the bench without prior discipline (see
Matter of Skinner, 91N.Y.2d142, 144, 667 N.Y.S.2d 675, 677(1997)); the
judge's acknowledgment of the inappropriate nature of the conduct (see Matter of
Watson, 100 N.Y.2d 290, 304, 763 N.Y.S.2d 219, 227 (2003)); the judge's
remorse and contrition for the conduct (see Matter of LaBelle, 79 N.Y.2d 350,
363, 582 N.Y.S.2d 970, 976 (1992)); evidence that the misconduct was an
aberration (see Matter of Edwards, 67 N.Y.2d 153, 155, 501N.Y.S.2d16, 17
(1986)); evidence that the judge's conduct was caused by of depression or other
psychological factors (see Matter of Kelso, 61 N.Y.2d 82, 88, 471 N.Y.S.2d 839,
842 (1984)); and, evidence upon which it can be safely concluded that the
misconduct will not recur. Id.
-46-
Because the evidence here demonstrates each of these mitigating
factors, this Court should conclude that Judge Restaino is fit to serve and should
not be removed.
1. Petitioner Had an Unblemished Record of Exemplary

Service.
The undisputed evidence at the hearing indicated that before March
11, 2005, Judge Restaino had an unblemished record of exemplary service as an
attorney and a judge. As an attorney, both in private practice and as an Assistant
Public Defender, Judge Restaino was known to be competent, knowledgeable and
respectful to the court, court personnel and witnesses. R. at 144, 190-91, 212, 225,
538, 663. He was praised by one Judge before whom he appeared as a "champion
of his clients' rights." R. at 538.
At the hearing, an impressive array of witness were called to attest to
Judge Restaino's character and reputation. Witnesses from the legal community
came from both sides of the bar, from the bench, and from the courts' support
staff. They included a former prosecutor and a former public defender; the Deputy
Chief Clerk of the Family Court; the Supervising Judge of the Criminal Courts of
the Eighth Judicial District; the former and current Supervising Judges of the
-47-
Family Courts of the Eighth Judicial District; and the two other judges, including
the Chief Judge, of the Niagara Falls City Court. Witnesses from the greater
community included the president of the largest local public university, the
director of the local library system, the deputy superintendent of the city school
district and the executive director of the local housing authority.
Indeed, five of the Commission's own witnesses testified on cross-
examination that Judge Restaino has an excellent reputation as a fair, reasonable
and even-tempered jurist. R. at 144-50, 193, 213-14, 226, 237-38.
In his nine years as a judge, Judge Restaino was known by all
participants in the justice system as diligent, hardworking and eminently fair to
both sides. R. at 147, 190-91, 212-14, 225-26, 237-38, 516-17, 538-41. Defense
lawyers, prosecutors, police officers and defendants considered him to be
unerringly impartial. R. at 147, 190-91, 585-88. He was particularly and
consistently respectful and courteous to all who appeared before him -- including
defendants involved with the Domestic Violence Court. R. at 147, 156, 168, 190,
194, 199,227,228-89, 352-53.
In the Domestic Violence Court, Judge Restaino earned a reputation
as a caring and compassionate jurist who pursued and achieved the most ambitious
goals in that setting. He treated the defendants fairly and respectfully. R. at 227.
-48-
When necessary, he took the time to share his wisdom with defendants, especially
the younger ones. R. at 214. He demonstrated good judgment and restraint in his
treatment of all defendants.
His treatment of Kevin Lafreniere, one of the defendants who was
present in court on March 11, 2005, demonstrates that restraint. At a prior court
appearance, Mr. Lafreniere tested positive for a controlled substance, violating the
terms of the Domestic Violence Part. Though Judge Restaino certainly could have
revoked Mr. Lafreniere's bail as a "sanction" at that time, he chose not to do so as
long as Mr. Lafreniere agreed to continue to participate in the Domestic Violence
Court. R. at 317-19, 737-38. On another occasion, Judge Restaino reasonably
considered all the circumstances and permitted Mr. Lafreniere to miss a
counseling session without penalty, though that too was a condition of continued
participation in the Domestic Violence Court. R. at 321-22.
Judge Restaino's record of exemplary service went far beyond simply
presiding in City Court. He devoted considerable efforts to improve the
administration of the Niagara Falls City Court. He accepted numerous additional
responsibilities; indeed, the Chief Judge of Niagara Falls City Court said that
Judge Restaino never turned down an assignment. R. at 524. He served as Acting
Judge in the Niagara County Court, the Niagara County Family Court and the
-49-
Buffalo City Court, without any additional staff being made available to him.
R. at 594. Further, he helped to set up the Domestic Violence Court, and he
created the innovative ATONE program for youngsters charged with domestic
violence to further expand and improve the reach of that court.
Judge Restaino immersed himself in Domestic Violence Court, doing
far more than his office required. In retrospect, that immersion in a court that
contributed to his stress may well have contributed to his problem. But there is no
doubt that his work in that court went above and beyond what was expected of
him. Rather than simply process cases, he dedicated himself to becoming as
familiar as he could with each individual before him so that he would better
understand how to best deal with him or her. R. at 690-91. Judge Restaino and
those who appeared before him routinely discussed issues that transcended
program compliance and toxicology tests. For example, Judge Restaino often
inquired into personal matters that might have a bearing on the individual's ability
to comply with the requirements of Domestic Violence Court. Judge Restaino
explained, "I would make note of them and then talk with the participant about
that as we went forward. If it were a particular issue, just ask them how it was
going or to try and become something other than just the judge who they see every
Friday." R. at 691.
-50-
Judge Restaino 's success in becoming more than ')ust the judge who
they see every Friday," is perhaps best exemplified by the hearing testimony of
Guillermo Martinez. R. at 604-18. Mr. Martinez, a participant in the Niagara
Falls City Court Domestic Violence Court, was one of the defendants improperly
jailed by Judge Restaino on March 11, 2005. Mr. Martinez explained in detail the
extent to which Judge Restaillo helped him and served as a positive influence. He
said that Judge Restaino "would give me the feeling that there's always something
better out there and this is just a time in life that, you know, I need to listen and get
through the program and learn something from it." R. at 612. Mr. Martinez
testified that Judge Restaino encouraged him and helped him make progress in
dealing with the issues that brought him to the Domestic Violence Court.
R. at 612. Mr. Martinez considered Judge Restaino to be a positive influence in
his life and credited Judge Restaino for getting him to pursue his general
equivalency diploma. R. at 612-14. After Mr. Martinez obtained his diploma, he
appeared before Judge Restaino on September 8, 2006, to give Judge Restaino a
copy of his diploma and a photograph of himself in his cap and gown.
R. at 615-18, 1289. Judge Restaino led the courtroom in applauding Mr.
Martinez. R. at 61 7. At the time of the hearing, Mr. Martinez was still employed
and had plans to go college. R. at 618. His success story demonstrates why the
-51-
Domestic Violence Court was designed in the first place. Judge Restaino 's
handling of Mr. Martinez's matter was nothing short of exemplary.
2. Petitioner Acknowledged the Inappropriate Nature of His

Conduct.
Judge Restaino recognized his serious mistake shortly after it
occurred and took measures to correct the consequences of his misconduct. Since
that time, he has repeatedly accepted responsibility and acknowledged that what
he did was inappropriate. When he began seeing a psychiatrist after the event,
Judge Restaino admitted to him that his actions were wrong. R. at 407. He
admitted the factual allegations of the complaint. R. at 43. He admitted
misconduct at the hearing before the referee. R. at 729-30, 733, 856, 944-95. He
admitted misconduct when he personally appeared before the Commission.
R. at 1703, 1709-1710. And before this Court, Judge Restaino admits the factual
findings of the Commission and accepts its determination that he committed
misconduct.
In short, since hours after the conduct at issue, Judge Restaino has
consistently and repeatedly admitted the inappropriate nature of his conduct.
-52-
3. Petitioner Has Expressed Remorse and Contrition for His
Conduct.
Judge Restaino has repeatedly expressed remorse and contrition that
his psychologist, his psychiatrist and the Referee have found to be sincere and
genuine. R. at 412-13, 464-65, 1512. Dr. the psychiatrist, testified that
Judge Restaino understands the gravity of what he did. R. at 413. According to
Dr. Judge Restaino's misconduct has "caused in an of itself a fair amount
of personal anguish" for Judge Restaino, and the Judge "appreciates what all
occurred." Id. "This is an intelligent, sensitive individual, this is not lost on him."
Id. Likewise, Dr. found Judge Restaino to be "chastend," "tearful" and
"remorseful." R. at 464. Dr. found these emotions to be "genuine."
R. at 1274. The Referee, who observed Judge Restaino at the hearing, agreed:
"The Judge testified at length during the proceedings and expressed remorse for
his conduct, which appeared to be sincere." R. at 1512. 5
5
The Commission appears to have been influenced by the claim that
Judge Restaino never personally apologized to the individual
defendants who were in court on March 11, 2005. R. at 18,
1697-1709. But that was an unfair criticism given that Judge
Restaino had been instn1cted by both his Chief Judge and his attorney
not to have any contact with the defendants. R. at 1705.
-53-
4. Petitioner's Misconduct Was an Aberration.
Judge Restaino's actions on March 11 were completely contrary to
the conduct for which he was known. Before March 11, 2005, Judge Restaino was
known for being calm and "even-handed" in court. R. at 149-50, 191. Numerous
witnesses described him as a decent, polite and courteous jurist. R. at 156, 214,
581, 585. Prior to March 11, 2005, he always treated defendants, including those
in the domestic violence specialty court, respectfully and fairly. R. at 156-58, 194,
227, 515-16, 585. There is absolutely no question that what occurred on March
11, 2005 was unprecedented for Judge Restaino. Indeed, nothing even remotely
close had ever happened before.
Even the defendants who were in court on March 11, 2005 testified
that before that date, Judge Restaino had been reasonable, courteous and fair in his
treatment of them. R. at 289, 292, 351-53, 378, 612-14. Perhaps Judge Restaino
said it best to his psychiatrist at his first appointment: "I did something that I
would not have done in my wildest dreams." R. at 407.
-54-
5. Petitioner's Conduct Was Caused by Psychological Factors.
As discussed at length in Section II, supra, Judge Restaino's conduct
on March 11, 2005 was the result of psychological issues exacerbated by stress in
the Domestic Violence Court and at home. Unfortunately, Judge Restaino had not
recognized these issues at the time and had not taken any steps to address them.
Fortunately, Judge Restaino has since undergone extensive treatment and
counseling for these issues and, in the opinion of his mental healthcare providers,
has adequately addressed them. The evidence of these psychological issues and
the efforts Judge Restaino has taken to address them demonstrates his fitness,
rather than unfitness, to continue to serve on the bench.
6. The Evidence Indicates That There Is Little Risk That the

Misconduct Will Recur.
The record provides compelling evidence that the events that took
place on March 11, 2005, will never recur. Dr. gave the following
professional opinion in this regard:
-55-
R. at 413 (emphasis added). According to Dr. Judge Restaino "now
understands the nature of his own actions, and his good insight, and I trust that this
will not be any kind of future problem. I feel this was a one and only time[,] lapse
in judgment." R. at 1271-73. Dr. the psychologist, was also of the
opinion that there is little risk of recurrence. As he stated in his report, "I will be
even more surprised if there are any subsequent outbursts in court."
R. at 1274-75.
At the hearing, the Referee specifically asked Judge Restaino how he
would respond in the future if confronted with a similar situation in the courtroom:
Judge Restaino Well, actually it's happened and what I would do

is what I've always done that is the officers will
attend to it if they can, if they can't, then
obviously I lmow I'm just going to be concerned
with keeping decorum in the courtroom. I suspect
that what I would do is make the same speech I
make always about the need for quiet and decorum
in the courtroom and that if whoever is in
possession of the offending instrument, if it hasn't
been discovered, they should please tum it off and
make sure that it is not in the courtroom.
-56-
Referee In other words, you can't solve it,
sometimes you have to eat it, right?
Judge Restaino Yes, Judge, sometimes you got to eat it.
Referee Do you realize that group punishment is

improper?
Judge Restaino Yes, I know that, sir.
Referee OK. What assurance can you give me that

something like this won't happen again?
Judge Restaino Well, as I told Mr. ... as I told Mr. Daniels,

one of the things that I have gained out of
this was my own, and I was speaking to Mr.
Postel too about this, is that I've recognized
that every, all of us, have things that are
going on outside of our jobs, whether you're
a judge or an attorney or whatever and
you've also got a life outside of there and
those things are, you have to deal with
those, and you have to deal with your
professional life. I've learned through this
process that what I've, what I experienced
on that day and since that there are avenues
and if the family isn't there to help with
that, then there are professionals, there are
people, Lawyers Assistance Program, the
Judge Assistance Program, people you can
talk to, to address those outside the
courtroom concerns so that those things are
met head on and don't become a problem in
your work life.
R. at 994-95.
-57-
The Referee explicitly noted that he found the evidence that this
misconduct would not recur to be persuasive. R. at 1512.
Both experts and the Referee thus agreed that there was little chance
that this conduct would ever recur. If fitness to serve is truly the touchstone for
removal, then this jurist with an exemplary record whose only mistake was an
outburst caused by psychological issues should be returned to the bench.
-58-
CONCLUSION
For nearly a decade before March 11, 2005, Robert Restaino had been
a rising star in the Western New York judiciary and a paragon of judicial virtue.
He tirelessly handled an oppressive workload in his own court, yet also willingly
accepted assignments to other courts to help with their crushing caseloads. He
also found time to work to improve the court system, and he began innovative
programs designed to improve the lives of families and children coming into
contact with the courts. Universally praised for his ability, compassion and work
habits, Judge Restaino was probably best known for his unerringly courteous and
fair treatment of all who appeared before him.
On March 11, 2005, a relatively minor courtroom annoyance
triggered a reaction that no one -- including Judge Restaino himself -- could have
expected from the Judge. His fellow judges, court personnel, lawyers who
appeared before him and litigants he helped over the years all were mystified by
what happened. But the evidence developed at the hearing demonstrated that what
happened was simply the displaced eruption of severe psychological stressors that
had long been suppressed. Despite Judge Restaino's efforts to bury his problems
in more and more work, they spilled over on March 11, 2005, proving that he was,
after all, only human.
-59-
None of this excuses Judge Restaino's conduct. But understanding
why the conduct occurred is necessary to decide an appropriate sanction. Robert
Restaino is a man who did his best to live up to the lofty standards set for judges.
Not recognizing the stress he was under, he added to that stress by taking on more
and more work to help those around him. He has accepted responsibility for his
aberrant conduct and repeatedly expressed sincere remorse. The experts agree that
his conduct was caused by psychological factors and is extremely unlikely to
recur.
This one event in an otherwise exemplary career is not evidence that
Judge Restaino is unfit to serve on the bench, especially because it was triggered
by psychological stressors that are obvious only in retrospect. This Court should
censure Judge Restaino but allow him to continue a judicial career that -- except
for a few hours on a single day -- has been a shining example of how a judge can
benefit his community.
Dated: Buffalo, New York

January 28, 2008 ~.~J
Terrence M. Connors, Esq.
Vincent E. Doyle III, Esq.
(716) 852-5533
-60-
STATE OF NEW YORK
<!tnurt nf App.eats
STATE OF NEW YORK
In the Matter of the Proceeding Pursuant to Section 44,

Subdivision 3, of the Judiciary Law in Relation to
ROBERT M. RESTAINO,
A Judge of the Niagara Falls City Court, Niagara County.
NOTICE OF MOTION TO FILE AND SERVE A BRIEF

AMICUS CURIAE IN THE COURT OF APPEALS AND
AFFIDAVIT IN SUPPORT OF MOTION
JOHN M. A VERSA, ESQ.

Attorney for Amici Curiae
625 Sixth Street
Telephone: (716) 285-8825
Facsimile: (716) 285-2313
Bar Association of Niagara County Niagara Falls Bar Association

Amicus Curiae Amicus Curiae
P.O. Box 570 City Hall
Lockport, New York 14095 Niagara Falls, New York 14302
Telephone: (716) 285-8825 Telephone: (716) 286-4420
Lockport Bar Association Community Missions of the

Amicus Curiae Niagara Frontier, Inc.
P.O. Box 1096 Amicus Curiae
Lockport, New York 14095 1570 Buffalo Avenue
Telephone: (716) 693-2335 Niagara Falls, New York 14303
Telephone: (716) 285-3403
Ni~ara County Legal Aid Society Bar Association of the Tonawandas
Armcus Curiae Amicus Curiae
Angelo A. DelSignore Civic Building P.O. Box 604
Niagara Falls, New York 14302 North Tonawanda, New York 14120
STATE OF NEW YORK
COURT OF APPEALS

a Judge of the Niagara Falls City Court,
Niagara County, NOTICE OF
Petitioner, MOTION FOR
LEAVE TO FILE
-vs- A BRIEF AMICI
CURIAE
NEW YORK STATE COMMISSION ON
JUDICIAL CONDUCT
Respondent.
PLEASE TAKE NOTICE that upon the annexed affidavit of John M.
Aversa, Esq., and the accompanying proposed brief, and upon all prior
proceedings herein, the undersigned will move this Court at a motion term
thereof to be held at the Court of Appeals Hall, Albany, New York on the 11th
day of February 2008 for an order granting the Bar Association of Niagara
County, the Lockport Bar Association, the Niagara County Legal Aid Society,
the Niagara Falls Bar Association, the Community Missions of the Niagara
Frontier, Inc. and the Bar Association of the Tonawandas, jointly, leave to
appear and file the accompanying proposed brief, as amici curiae in support
of Petitioner's position on this appeal, and for such other and further relief as
the Court may deem just and proper in the circumstances.
DATED: Niagara Falls, New York

February 1, 2008
/lll
J?HN.· )~1. AfERSA, ESQ.
( / I i
\/HI L
7
y;for proposed Amici Curiae

(716) 285-8825
TO: Terrence M. Connors, Esq.

Buffalo, NY 14202
(716) 852-5533
61 Broadway
New York, NY 10006
(212) 809-0566
STATE OF NEW YORK
COURT OF APPEALS

Niagara County, AFFIDAVIT IN
Petitioner, SUPPORT OF
MOTION
-vs- TO FILE
AMICI CURIAE
NEW YORK STATE COMMISSION ON BRIEF
JUDICIAL CONDUCT
Respondent.
STATE OF NEW YORK )

) SS.:
COUNTY OF NIAGARA )
JOHN M. A VERSA, ESQ., being duly sworn, states as follows:
1. I am the President of the Bar Association of Niagara
County, the President of the Community Missions of the
Niagara Frontier, Inc. and the Treasurer of the Niagara
County Legal Aid Society. I make this affidavit in support
of the motion of the Bar Association of Niagara County, the

Lockport Bar Association, the Niagara County Legal Aid
Society, the Niagara Falls Bar Association, the Community
Missions of the Niagara Frontier, Inc., and the Bar
Association of the Tonawandas, for leave to participate in
this appeal as amici curiae.
Background of this Appeal
2. This is a matter pursuant to section 44, subdivision 7 of the
Judiciary Law pertaining to Niagara Falls City Court Judge
Robert M. Restaino.
3. As reflected in the record before this Court, on March 11,
2005, Judge Restaino was presiding over the Niagara Falls
4. Based on information provided to the undersigned, "after a
long period of personal stress he simply snapped when he
heard a cell phone go off in his courtroom and engaged in
what can only be described as two hours of inexplicable
madness." (Dissenting Opinion of Raoul L. Felder, Esq.,
2
Chairman of the New York State Commission on Judicial
Conduct.)
5. Judge Restaino seemingly believed that he had to preserve
the integrity of the domestic violence court and thus
committed forty-six ( 46) defendants into custody.
6. Based on the facts before them, the Commission on Judicial
Misconduct found Judge Restaino guilty of committing
misconduct in the performance of his official duties and
recommended the penalty of removal.
7. Judge Restaino apologized for his conduct.
8. For reasons stated in the accompanying brief, the Bar
Association of Niagara County, the Lockport Bar
Association, the Niagara County Legal Aid Society, the
Niagara Falls Bar Association, the Community Missions of
the Niagara Frontier, Inc., and the Bar Association of the
Tonawandas respectfully assert that based on the facts of
this case, removal is not the appropriate sanction and the
penalty of censure should be imposed.
3
Statement of Interests of Amici
9. The Bar Association of Niagara County is a professional
association of attorneys in Niagara County. Membership in
the Bar Association of Niagara County is open to all current
and retired attorneys in the State of New York.
10. Historically, the Bar Association of Niagara County has
taken public positions on issues relating to the operation of
the unified court system and the administration of justice in
the County of Niagara. This includes participation as
amicus curiae on issues of widespread concern to Niagara
County's attorneys.
11. This proceeding presents issues with important
ramifications, far beyond the interests of Judge Restaino.
The Bar Association of Niagara County's members have a
strong interest in the resolution of these issues.
12. In addition, the Lockport Bar Association, the Niagara
County Legal Aid Society, the Niagara Falls Bar
Association, the Community Missions of the Niagara
4
Frontier, Inc. and the Bar Association of the Tonawandas,
whose missions include ensuring that judges conduct
themselves in a proper and ethical manner, fostering the
continued improvement of the administration of justice, and
ensuring that judges' decisions are not rendered based upon
selfish, venal or other outside influences, have a strong
interest in the resolution of these issues.
13. This case raises the important issue of the criteria required
for removal of a City Court Judge.
14. The Bar Association of Niagara County, the Lockport Bar
Tonawandas respectfully submit that the allegations in this
case do not rise to the level warranting removal.
CONCLUSION
15. Given the undisputed absence of evidence of bias, self-
interest or corruption, the Bar Association of Niagara
5
County, the Lockport Bar Association, the Niagara County
Legal Aid Society, the Niagara Falls Bar Association, the
Community Missions of the Niagara Frontier, Inc., and the
Bar Association of the Tonawandas urge this Court to
conclude that removal is not justified in this case.
16. This case has implications for all City Court Judges. Based
on the facts of this case, the law is well-settled that Judge
Restaino's single lapse in judgment should not, without
more, warrant removal from office.
17. Given the extreme importance of these issues, the Bar
Association of Niagara County, the Lockport Bar
Tonawandas respectfully request permission to participate
as amici curiae in the appeal.
6
f
I
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/Ah
1
,.
!1A111
v / .·
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L\ //llv
Joif¥'~- A VERSA, ESQ .

.~ \v ;)·
J,
1st day of February 2008

(- ~-,,"\\·-"""-,
\~
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-~
Notary Public
AMY ANN BUSH

Notary Public, State of New York
Registration No. 01 BU6156714
Qualified in Niagara County
My Commission Expires Nov. 22, 2010
7
STATE OF NEW YORK
<!tnurt nf Appeuln
STATE OF NEW YORK

ROBERT M. RESTAINO,
BRIEF OF AMICI CURIAE
JOHN M. A VERSA, ESQ.

625 Sixth Street
Telephone: (716) 285-8825
Facsimile: (716) 285-2313
Bar Association of Niagara County Niagara Falls Bar Association

Amicus Curiae Amicus Curiae
P.O. Box 570 City Hall
Lockport, New York 14095 Niagara Falls, New York 14302
Lockport Bar Association Community Missions of the

Amicus Curiae Niagara Frontier, Inc.
P.O. Box 1096 Amicus Curiae
Lockport, New York 14095 1570 Buffalo Avenue
Telephone: (716) 693-2335 Niagara Falls, New York 14303
Telephone: (716) 285-3403
Ni~ara County Legal Aid Society Bar Association of the Tonawandas
Armcus Curiae Amicus Curiae
Angelo A. DelSignore Civic Building P.O. Box 604
Niagara Falls, New York 14302 North Tonawanda, New York 14120
Date of Completion: January 28, 2008.
TABLE OF CONTENTS
Page
Preliminary Statement 1
Factual Background 2
Interest of Amicus Curiae 4
ARGUMENT
Point One 6
NIAGARA COUNTY WOULD BE DEPRIVED,

BY THE SANCTION OF REMOVAL, OF A
COMPETENT AND EXPERIENCED JUDGE
A. JUDGE RESTAINO IS A DISTINGUISHED 6

MEMBER OF THE JUDICIARY
B. THE EFFECT ON THE INDEPENDENCE OF 8
THE JUDICIARY
c. THE DOMESTIC VIOLENCE COURT HAS 9
A UNIQUE NATURE
- I -
Point Two 11
AS A JURIST WITH A PREVIOUSLY

UNBLEMISHED RECORD, JUDGE RESTAINO'S
SINGLE ERROR OF JUDGMENT WARRANTS
CENSURE BUT NOT REMOVAL FROM THE
BENCH
Point Three 13
THE DECISION OF THE COMMISSION ON

JUDICIAL CONDUCT WAS UNPRECEDENTED
Conclusion 16
THE DETERMINATION OF THE

COMMISSION RECOMMENDING REMOVAL
SHOULD BE REJECTED AND THIS COURT
INSTEAD SHOULD DIRECT THAT THE
SANCTION OF CENSURE BE IMPOSED
- ll -
CASES Page
In Re Bauer, 3 NY3d 158, 159, 162 (2004) 16
Lonschein v State Commission on Judicial Conduct,

50 NY2d 569, 574 (1980) 11
Matter of Cohen, 74 NY2d 272 (1989) 15
Matter of Cunningham v Commission on Judicial Conduct,

57 NY2d 270, 275 (1982) 15
Matter of Esworthy, 77 NY2d 280 (1991) 15
Matter of Blackburne, 7 NY3d 213 (2006) 14
Matter of Simms, 61 NY2d 349, 353 (1984) 11
Matter of Schilling, 51 NY2d 397 (1980) 12
Matter of Watson, 100 NY2d 290 (2003) 12
-a-
DETERMINATIONS OF JUDICIAL CONDUCT COMMISSION
Page
Matter of Dusen, 2005 Annual Report 155 ------------ 15
Matter of Mills, 2005 Annual Report 185 ------------ 13
Matter of Feinman, 2000 Annual Report 105 ------------ 14
-b-
This is an appeal from a decision of the New York State Commission on
Judicial Conduct made pursuant to Section 44, subdivision 4 of the Judiciary Law
and dated November 13, 2007. The Commission determined that the appropriate
disposition was the removal of the petitioner for certain actions he undertook while
presiding as a City Court Judge. The Chairman of the Commission, Raoul L.
Felder, Esq., dissented and voted for the lesser sanction of censure.
The Bar Association of Niagara County, the Lockport Bar Association, the
Niagara County Legal Aid Society, the Niagara Falls Bar Association, the
Community Missions of the Niagara Frontier, Inc. and the Bar Association of the
Tonawandas submit this brief as amici curiae in support of the appeal of Petitioner
Judge Robert M. Restaino. Each of these entities recognizes the value of an
independent judiciary. These entities provide a unique perspective as their missions
include ensuring that judges conduct themselves in a proper and ethical manner,
fostering the continued improvement of the administration of justice, and ensuring
that judges' decisions are not rendered based upon selfish, venal or other outside
influences.
1
It is respectfully submitted that the Commission's decision recommending
removal of Judge Restaino from the bench was made without due regard for his
exemplary career as a jurist and without proper consideration of the absence of any
personal motive in this case. At worst, Judge Restaino's actions constituted a lapse
in judgment. Nevertheless, no evidence exists that his actions were motivated by
anything other than an attempt on his part, misguided as it may have been, to
protect the integrity of the domestic violence court.
In short, Judge Restaino simply made a mistake in judgment, which does not
warrant removal from office. Moreover, other pertinent factors such as Judge
Restaino's undisputed reputation for honesty, competence and integrity were not
given due weight by the Commission in its recommendation for removal. It is
respectfully submitted that considering all relevant factors in this case, the penalty
of removal is unduly harsh.
FACTUAL BACKGROUND
Judge Restaino's unblemished past is without dispute. He has served as a
judge for eleven (11) years. During that time, and before, he has never been the
subject of any claim of judicial misconduct or breach of legal ethics.
2
The record is clear that Judge Restaino regretted his actions and realized he
made a mistake in judgment. After Judge Restaino was charged with misconduct he
cooperated fully with the investigation. During Judge Restaino's testimony before
the Commission, he expressed remorse for his actions and admitted his lapse in
judgment.
Moreover, many witnesses, including Chief Judge Mark A. Violante of the
Niagara Falls City Court testified as to Judge Restaino's impeccable personal
integrity and strong moral character.
After a full hearing, the Commission, with one (1) dissenting vote, voted to
remove Judge Restaino from office for what amounts to a single incident of
misconduct. As explained in the dissenting opinion of Chairman Felder, the
Commission's actions in removing a sitting City Court Judge from office for a single
error of judgment, without more, is unprecedented and should not be allowed to
stand:
"The record establishes that petitioner, after a long period of personal stress,
while presiding in a domestic violence part simply "snapped" when he heard a cell
phone go off in his courtroom and engaged in what can only be described as two
3
hours of inexplicable madness. The record also establishes that his conduct over
those two hours was a total aberration from his character and demeanor as a judge
for eleven years and that he has received the support and praise of his judicial
colleagues, court personnel and community leaders."
INTEREST OF AMICI CURIAE
The Niagara County Bar Association 1 is dedicated to the impartiality and
independence of the judiciary. Through its Judicial Rating Committee the Bar
Association interviews and investigates judicial candidates and renders opinions as
to their qualifications to the Bar and the general public. The Bar Association has an
interest in ensuring that judges conduct themselves in a proper and ethical manner
and seeks to render its opinion on judicial independence and the conduct of judges
in the Courtroom. The members of the Niagara County Bar Association and the
clients they represent have a vital interest in the administration of justice. One of
the missions of the Niagara County Bar Association is to assume leadership in
fostering continued improvement of administration of justice under our
constitutional form of government.
1
The Bar Association of Niagara County was founded in 1922.
4
Also joining in this brief is the Niagara Falls Bar Association, which
recognizes the value of an independent judiciary.
Also joining in this brief is the Bar Association of the Tonawandas, which
recognizes the value of an independent judiciary.
Also joining in this brief is the Niagara County Legal Aid Society, which
provides legal services to indigent persons. The Niagara County Legal Aid Society
recognizes and supports the need to have an independent judiciary, and the need to
insure that each judge's decisions are based upon the law and facts of each case,
rather than upon outside influences.
Also joining in this brief is the Community Missions of the Niagara Frontier,
Inc., which is a non-profit organization, which has as one of its purposes the
advancement of opportunities for indigent persons. The Community Missions of
the Niagara Frontier, Inc. has an interest in ensuring the independence of judges
and in ensuring that the decisions rendered by courts are not influenced by any
selfish or venal motive of a jurist.
5
POINT ONE
NIAGARA COUNTY WOULD BE DEPRIVED,
BY THE SANCTION OF REMOVAL, OF A
COMPETENT AND EXPERIENCED JUDGE
A. - JUDGE RESTAINO IS A DISTINGUISHED MEMBER OF THE

JUDICIARY
Niagara County has been well-served by Judge Restaino since he began his
judicial career in 1996, and his removal would deprive the county of a competent
and experienced jurist. In addition to his previously unblemished record, he has
shown fairness, independence and courage on the bench, and has treated litigants
and attorneys who appear before him with dignity and respect.
Further, the character witnesses for Judge Restino are not only a testament to
his competence and credentials, but to the unusual breadth of experience he has
brought to the bench.
Niagara Falls City Court Chief Judge Mark A. Violante testified that
petitioner's "dedication ... for this assignment was second to none" (Tr. 457). Judge
Violante further indicated that petitioner "handled himself as a distinguished
6
member of the bench" (Tr. 462). He went on to say regarding petitioner that "on his
social, his personal and his professional character, it's been nothing but impeccable"
(Tr. 466). Associate Judge Angelo J. Morinello testified that petitioner's reputation
was "excellent" - "one that exceeds that of most judges." In addition to his
responsibilities as a Niagara Falls City Court judge, the testimony indicated that
petitioner has served as an acting County Court judge, Family Court judge and
Buffalo City Court judge as needed and that he has an impeccable reputation as a
dedicated, fair, hard-working jurist with great integrity.
Before becoming a judge, Judge Restaino served as a private practitioner and
an Assistant Niagara County Public Defender for eight (8) years. He is currently
Vice-President of the New York State City Court Judges Association and sits on the
Board of Directors of many civic organizations, including Community Missions of
the Niagara Frontier, Inc. His distinctive background has provided Niagara County
with a judge whose perspective is seasoned by longstanding public and community
service.
In view of Judge Restaino's competence and experience, his removal for a
single episode of aberrant behavior on March 11, 2005, which was neither venal nor
7
abusive would be to the detriment of Niagara County.
B. EFFECT ON THE INDEPENDENCE OF THE JUDICIARY
One of the hallmarks of a candidate for the judiciary is independence.
Judicial candidates who run in contested elections in this State will often emphasize
"independence" in their literature. Judicial independence is important not only in
the highest courts of our State but also throughout the entire court system to the
court of the lowest jurisdiction. Members of the bar and public need to rely on an
independent judiciary for the rulings which effect and touch every corner of our
society. They need to know that decisions are neither tainted by outside influences
nor any vindictiveness or desire for personal gain.
One chilling effect which the Bar Association of Niagara County fears would
result from the removal of Judge Restaino is the effect it will have on the
independence of the judges sitting in our court system. Judges must be independent
and the removal of Judge Restaino who has a previous unblemished record, for a
mistake in judgment which was not motivated by any selfish motive or venality, will
have a chilling effect on the independence of the judiciary in this State.
8
Judge Restaino made a serious mistake in his judgment but that should be
punished with the appropriate sanction of censure.
For the reasons sated the determined sanction of removal should be rejected
and the sanction of censure imposed.
The reality here is that even a public censure would undoubtedly have a
deleterious effect on the Judge's career. In any event, we believe this is a case where
it should be up to the public, who elected petitioner to serve in his community, to
decide when he is up for re-election whether he should remain on the bench.
c. THE DOMESTIC VIOLENCE COURT HAS A UNIQUE NATURE
The Hon. Mark A. Violante gave testimony at the proceedings below, which
related to the nature of the Niagara Falls Domestic Violence Court. In the Domestic
Violence Court, the judge is almost an advocate for the success of the defendant,
together with the prosecutor. The object is to have the defendant rid himself of his
abusiveness and rejoin society as a productive citizen. The underlying concept of
the Court is to provide jail-bound abusive defendants with an enforced treatment
9
rather than incarceration. The Part requires a Judge who could be strong when
needed and compassionate when necessary. Judge Violante indicated that he
believed that the petitioner fit that role. The Niagara Falls Domestic Violence Court
allows an abusive defendant to plead to a charge and then have his sentence
adjourned pending his treatment for his abusiveness. The focus in the Niagara Falls
Domestic Violence Court is treatment of the individuals and that the judges give a
great deal of attention to the defendants with the goal of keeping the defendants in
treatment and having them graduate from the program and lead a productive life.
Further, there is a great deal of interaction between the judge and a defendant. The
judges see the defendants frequently and get to know the defendants quite well. The
Niagara Falls Domestic Violence Court is based upon the concept that the
defendants should be helped to get through the process and it requires trust,
accountability, honesty and support. It is submitted that any review of the
petitioner's conduct should be considered together with the nature of the Niagara
Falls Domestic Violence Court in which petitioner was presiding and the
relationship petitioner believed was formed by the special nature of that Part.
10
POINT TWO
AS A JURIST WITH A PREVIOUSLY
UNBLEMISHED RECORD, JUDGE RESTAINO'S
SINGLE ERROR OF JUDGMENT WARRANTS
CENSURE BUT NOT REMOVAL FROM THE BENCH
Judge Restaino did what he believed at the time was appropriate. His actions
were not based upon any personal vindictiveness. Rather, Judge Restaino made an
error in judgment, a human error which may warrant censure but not removal.
"For Judges are but men and women who are nonetheless worthy though, like all
human beings, they are sometimes less than perfect." (Lonschein v State
Commission on Judicial Conduct, 50 NY2d 569, 574 (1980)- dissenting opinion
Justice Fuchsberg.)
The law is clear that the Court of Appeals when reviewing a
determination of the commission is vested not only with the authority to review the
commission's findings of facts and conclusions of law but also to determine the
appropriate sanctions for the misconduct found and to impose a less or more severe
sanction. See Matter of Sims, 61 NY2d 349, 353 (1984). Thus, the decision to
remove or not to remove Judge Restaino from the bench is for this Court to make.
11
In this case, all that was alleged against Judge Restaino was that he exercised
poor judgment. Nevertheless, the law is settled that "poor judgment, even
extremely poor judgment," without more, is sufficient to sustain the penalty of
removal, Id.; see also Matter of Schilling, 51 NY2d 397 (1980). Nothing in the
findings of the commission indicate that Judge Restaino's actions demonstrate that
he is unfit to serve as a City Court Judge. The commission essentially held that this
single act of misconduct is so severe that Judge Restaino cannot continue as a sitting
jurist. We respectfully disagree. There is no allegation of bias, self-interest or
corruption against Judge Restaino. Absent the presence of any of these aggravating
factors, removal is unwarranted in this case.
In recommending removal, the commission apparently disregarded the
principle that the purpose of judicial disciplinary proceedings is not to punish
wayward judges, but rather to "safeguard the bench from unfit incumbents."
Matter of Watson, 100 NY2d 290 (2003). In imposing a sanction in this case, the
appropriate inquiry is whether Judge Restaino is unfit to serve as a judge or
whether the "proper administration of justice" is threatened by his continuing in
office. Id. at 304.
12
Nothing in this case meets that standard. Judge Restaino's singular and
isolated transgression does not demonstrate that he is unfit to serve as a judge, or
that allowing him to remain on the bench will cause litigants and attorneys to doubt
his impartiality as a jurist. Thus, the penalty of removal is wholly inappropriate
and disproportionate to Judge Restaino's misconduct.
The record is clear that Judge Restaino recognized his mistake on the very
same day that it occurred and, to his credit, has expressed regret for his actions and
does not defend his actions. Moreover, Judge Restaino has an impeccable record as
a jurist and as an attorney. Lastly, the hearing testimony with respect to Judge
Restaino's moral character was uncontradicted and clearly demonstrates that Judge
Restaino possesses the moral character and integrity to be a sitting jurist.
POINT THREE
THE DECISION OF THE COMMISSION ON
JUDICIAL CONDUCT WAS UNPRECEDENTED
The Commission's decision to remove Judge Restaino was unprecedented and
unfair. In past cases where there has been serious judicial misconduct, the
Commission had voted to censure rather than remove. For example, in the Matter
13
of Mills, 2005 Annual Report 185 the jurist unlawfully jailed an acquitted prose
litigant on contempt charges. Instead of releasing him, the jurist altered a
commitment order to reflect a conviction under a different statute. The same judge
held a non-party (father of a defendant) in contempt of court for using profanity in
a parking lot near the courthouse. Matter of Mills, supra resulted in an order for
censure and not removal. Further, in the only other public case involving a
disturbance created by an electronic device, the Commission was far less draconican
in their remedy. In Matter of Feinman, 200 Annual Report 105, the Commission
admonished a judge who held a defendant in custody for 90 minutes after the
defendant's pager rang in his court.
Before the instant case, neither the Commission nor the Court of Appeals ever
removed a judge for a single incident of misconduct not involving venality or a
"serious breach of trust." In fact, Judge Restaino otherwise has a previous
unblemished record on the bench.
Although Matter ofBlackburne, 7 NY3d 213 (2006) establishes that a judge
can be removed for a single incident of notoriously poor judgment, the conduct in
that case arose from a calculated determination to undermine the criminal justice
14
process by thwarting a lawful arrest. In contrast, the petitioner here was
attempting to have an individual (as well as the individual's peers who may have
witnessed the breach) take responsibility for a breach of courtroom decorum. In
Blackburne, the judge acted purely out of personal pique, based on incomplete
information and further, she persisted in the face of contrary advice from
experienced court personnel.
The remedy of removal is one that should only be imposed in the most
egregious circumstances and, it is submitted, it should not be imposed for poor
judgment or even extremely poor judgment. See Matter of Dusen, 2005 Annual
Report 155 and Matter of Cunningham v Commission on Judicial Conduct, 57
NY2d 270, 275 (1982). The purpose of the disciplinary proceedings is not
punishment but imposition of sanctions necessary to safeguard the Bench from unfit
incumbents. See Matter of Esworthy, 77 NY2d 280 (1991). It is submitted that the
removal of a judge is generally unwarranted where there is no malevolent or venal
motive. See Matter of Lonschein, supra and Matter of Cohen, 74 NY2d 272 (1989).
In the instant case the petitioner was concerned with the integrity of the Court. The
petitioner, however, expressed his realization that his judgment was wrong and not
something that the Court should have done at the time. The petitioner
15
acknowledged that he had made a mistake in judgment and expressed contrition.
It is also submitted that the Commission's decision wherein it cites Matter of
Bauer, 3 NY3d 158, 159, 162 (2004), noting that the Court of Appeals had indicated
in dicta that in some instances "no amount of it [contrition] will override
inexcusable conduct," must be considered in light of the particular case. In the
Bauer case the Commission sustained 39 charges against the jurist. See In Re
Bauer, supra. The Restaino case involves one error in judgment and not a number
of acts committed over an extended period of time as in Bauer.
CONCLUSION
THE DETERMINATION OF THE
COMMISSION RECOMMENDING REMOVAL
SHOULD BE REJECTED AND THIS COURT
INSTEAD SHOULD DIRECT THAT THE
SANCTION OF CENSURE BE IMPOSED
Balancing all the relevant factors in this case, removal is simply not the
appropriate punishment. Judges Restaino made a mistake in his courtroom on
16
March 11, 2005. He acknowledged that mistake and does not defend his actions.
Significantly, it was not a mistake that called into question his personal integrity or
competence. Most importantly, in no way does it demonstrate that he is unfit to
serve as a City Court Judge.
For the reasons stated herein, we respectfully request that this Court impose a
penalty of censure upon Judge Restaino for his conduct of March 11, 2005.
R~m submitted
i/j I . IJI
\ i I
I i I I
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1 I
I
JOk~. AVERSA, ESQ.

625 Sixth Street
Niagara Falls, NY 14301
(716) 285-8825
17
-ef,'~;~
~· ~ w~ /f#f#tJ?-/tJ.95
February 6, 2008
John M. Aversa, Esq.

625 Sixth Street
Niagara Falls, NY 14301
Re: MIO Honorable Robert M. Restaino

Motion No. 08/177
Dear Mr. Aversa:
Your motion for amicus relief in the above matter has been received. The motion
is noticed for a return date outside the limits set by CPLR 5516 (see also Court of
Appeals Rules of Practice 500.21 [a]). To comply with the applicable statutory and rules
requirements, the return date will be February 19, 2008.
Any opposing papers from respondents must be served and received by this office
no later than February 19, 2008.
If you have any questions about the Rules of the Court of Appeals for motions, you
may contact this office at (518) 455-7705.
Very truly yours,
Heather Davis
Chief Motion Clerk
HD:mg
cc: Hon.~Robert
-;+,y,*
~
M. Restaino
'~

February 7, 2008
John M. Aversa, Esq. Anthony D. Parone, Esq.

625 Sixth Street 730 Main Street
Niagara Falls, NY 14301 Niagara Falls, NY 14301-1787
Re: MlO Honorable Robert M. Restaino

Motion Nos. 08/177 & 08/178
Dear Counselors:
Please disregard this office's letters dated February 5 and February 6 regarding
your respective motions for amicus relief in the above matter.
The motions will be submitted to the Court on February 11, 2008.
Very truly yours,
Heather Davis
Chief Motion Clerk
HD:mg
LAW OFFICES
ANTHONY D. PARONE
730 MAIN STREET
NIAGARA FALLS, NEW YORK 14JOl·I787 TELEPHONE: C716l 282-1242

ADMITIED
TELEFAX: !716> 282·5090
NEWYORKAND CALIFORNIA
MELINDA S. GUSTO
PARALEGAL
February 4, 2008
NEW YORK COURT OF APPEALS

20 Eagle Street
ATTENTION: COURT CLERK
Re: Robert M. Restaino v. New York State

Commission on Judicial Conduct
Dear Sir or Madam:
Pursuant to the Rules of the Court of Appeals, I am now enclosing an original and
copy of a Motion requesting the filing of an Amicus Curiae Brief in the above proceeding.
Please be advised that the two attorneys who have prepared this Brief and Motion have
been practicing for many years in the City of Niagara Falls, New York and are very familiar
with Hon. Robert M. Restaino.
For example, Morton H. Abramowitz was admitted to practice in the State of New
York in 1953. Mr. Abramowitz has had many public positions. He has been Assistant
Corporation Counsel for the City of Niagara Falls, New York; he has been Deputy
Corporation Counsel for the City; he has been City Manager of Niagara Falls; he has been
an Assistant Niagara County Attorney; he has been the County Attorney for the County of
Niagara; and he is presently legal advisor to the Niagara Falls City Council.
Anthony D. Parone was admitted to practice in the State of New York in 1960 and
has appeared in Judge Restaino's Court on numerous occasions.
Please accept this original and copy of the Motion and attached Amicus Curiae Brief
for presentation to the Court.
/VeiyJruly yours,
/ ~_ ~~
~(_A/I( <:0~ ---------
,,, ..
ADP:msc ,f\NTHONY D. PARONE

Enc.
cc Robert H. Tembeckjian, Esq.
Counsel to the State Commission
on Judicial Conduct
cc Connors & Vilardo, LLP
Attorneys for Hon. Robert M. Restaino
cc Morton H. Abramowitz, Esq.
STATE OF NEW YORK
<!tnurt nf Apptula
Niagara County,
Petitioner,
vs.

Respondent.
NOTICE OF MOTION TO FILE and SERVE A BRIEF

AMICUS CURIAE IN THE COURT OF APPEALS
and AFFIRMATION IN SUPPORT OF MOTION
ANTHONY D. ·PARONE, ESQ., Of Counsel

MORTON H. ABRAMOWITZ, ESQ., Of Counsel
Attorneys for Amici Curiae
Niagara Falls Boys' & Girls'
Club, Inc., Niagara Falls Library,
Niagara Ministerial Council, PL WW
Crime Watch Block Club Coali.tion,
Niagara Falls Block Club Council
and Niagara Catholic High School
730 Main Street
Telephone: (716) 285-3031
Facsimile: (716) 282-5090
BATAVIA LEGAL PRINTING, INC.- Telephone (866) 16t2100

COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
Robert M. RESTAINO,
a Judge of the Niagara Falls
City Court, Niagara County,
Petitioner,
- against -

JUDICIAL CONDUCT,
Respondent.
NOTICE OF MOTION AND AFFIRMATION IN

SUPPORT OF MOTION TO APPEAR AS AMICI CURIAE
PLEASE TAKE NOTICE, that upon the annexed affirmation
of ANTHONY D. PARONE, Esq., and MORTON H. ABRAMOWITZ, Esq., the
undersigned will move this Court, upon these papers and without
oral argument, at a regular Motion Term of this Court, to be held
on February 11, 2008, for an order pursuant to 22 N.Y.C.R.R.
§§530. 7 (c) and 500.11 (f): (1) granting the not-for-profit and
community entities listed hereafter (collectively, the "Amici")
L:\SaN1WP51\PLEAD\restaino.wpd
permission to appear as amici curiae in this appeal, and (2)
accepting in the above-captioned case the brief that has been
filed and served along with this motion.

/ ., . / __
/,/ .///: ...,.... -.,,;.,~- .. -·-"'-4•-~~-.;- - .....}
DATED: Niagara Falls, New York ( ../ '.'./ "--C: ?-(_,,-y ----.. . .. . ..,,_.,. .C.::---c:::._7!.. .
' - - - ' •. <" .. l.11-l,---;?'· ( .,.......... ~-'-4._...,,_,~~
February 1, 2008
A.n:'thony D. Parone~ ... Esq.
l
j ""- ' . ,, ·~· • ~--,
-~'<t.....'\'~ '\~,~,
Morton H. Abramowi~..., Esq.
c/o 730 Main Street

(716) 285-3031
Attorneys for Amici, to wit:
NIAGARA FALLS BOYS' &

GIRLS' CLUB, INC.
NIAGARA FALLS LIBRARY
NIAGARA MINISTERIAL COUNCIL
PLWW CRIME WATCH BLOCK CLUB
COALITION
NIAGARA FALLS BLOCK CLUB COUNCI
NIAGARA CATHOLIC HIGH SCHOOL
TO: Clerk
Court of Appeals
20 Eagle Street

Counsel to the State Commission on
Judicial Conduct
61 Broadway

424 Main Street
L:\SalltlWP51\PLEAD\restaino.wpd
COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
Robert M. RESTAINO,
Petitioner, AFFIRMATION
- against -

JUDICIAL CONDUCT,
Respondent.
ANTHONY D. PARONE and MORTON H. ABRAMOWITZ, hereby
affirms, under penalty of perjury:
1. We are the attorneys, duly licensed and admitted to
practice in the State of New York, and are familiar with the
various not-for-profit entities, and that have requested the righ
to submit an the amicus curiae brief with respect to the above-
mentioned matter.
2. Amici brings this motion pursuant to Judiciary Law
§44(7) seeking review of determination of the New York State
Commission on Judicial Conduct (the "Commission"). The Commissio
found that Petitioner violated certain provisions of the Rules
Governing Judicial Conduct (the "Canons") and should be disciplin~d
L:\Sa11V!IWP51 \PLEAD\restaino. wpd

jj for cause pursuant to Article 6, Section 22, subdivision a, of the
II
New York State Constitution and Section 44(1) of Judiciary Law.
3. We have read the Commission's determinations and are
familiar with the facts and legal issues involved in this case.
4. Petitioner argues that removal is too severe given
the history prior to the events precipitating this matter and,
given as well, that in the almost three (3) years since that time,
his conduct has, as well, been exemplary. The Amici have long-
standing and well developed interests in the City of Niagara Falls11
and the conducting of justice in the Niagara Falls City Courts,
particularly as it relates to the citizens of Niagara Falls who
constitute the constituency of the Amici. _
5. That the Amici, while not necessarily condoning anj
untoward behavior, do not believe, in this matter, that the ·1

sanction of removal is warranted. Amici respectfully submits
their participation in this matter would be of special assistance
to the Court, and that the Amici would invite the Court's attenti
to the law or arguments that might otherwise escape the Court's
consideration. The Amici's proposed brief draws upon those
authorities and opinions and positions of the Amici that are not
likely to be discussed at any length in the Petitioner's own brie
L:\Sallt1WP51\PLEAD\restaino.wpd
WHEREFORE, it is respectfully requested that this Court
enter an Order granting the Amici permission to appear as Amici
curiae in this appeal, and accepting the brief as has been filed
and served along with this Motion and granting such other and
further relief as to this Court seems just and proper.

///··~~)<' . ... ----~:: --·· :)""---~
,,.,.,~ ,,.. -·· C.:~-c,r
t':{_~.:::_____ ~-~--~-=~_,-
-
(_,.,c.~/0~~:-~/
February 1, 2008 ;' !
An~hony D. Parone, Esq.
.._.
_,,...__~ ~ \('\_
:'-.,
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~<)'\~.::.......
: \.
'-.."-:: '\.
Morton H. Abramo~, Esq.
L:\Salhl1WP51 \PLEAD\restaino. wpd

STATE OF NEW YORK
Qrnurt nf Apptttls
Niagara County,
Petitioner,
vs.

Respondent.
ANTHONY D. PARONE, ESQ., Of Counsel

MORTON H. ABRAMOWITZ, EsQ., Of Counsel
Niagara Falls Boys' & Girls'
Club, Inc., Niagara Falls Library,
Niagara Ministerial Counci4 PL WW
Crime Watch Block Club Coalition,
Niagara Falls Block Club Council
and Niagara Catholic High School
730 Main Street
Telephone: (716) 285-3031
Facsimile: (716) 282-5090
Date of Completion: February 1, 2008.

COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
ROBERT .M. RESTAINO,

Petitioner,
- against -

JUDICIAL CONDUCT,
Respondent.
BRIEF OF AMICUS CURIAE OF certain

Not-for Profit Agencies and Entities
of the City of Niagara Falls, New York
~ '°C'2:7
, thony D. Pa~e, Esq.
--.,,..
\'\~~
As Attorneys for certain

Not-for Profit Agencies and Entities
of the City of Niagara Falls, New York
DATED: February 1, 2008
L:\Sally\WP51\PLEAD\restaino.wpd
TABLE OF CONTENTS
Page
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Interests of Participants. to Amici . . . . . . . . . . . . . . . . . . . 2
POINT ONE
THE CONDUCT OF JUDGE RESTAINO,

A JURIST WITH A PREVIOUSLY
UNBLEMISHED RECORD (and an
unblemished record from March 11, 2005,
when the incident complained of
occurred until his recent removal),
WARRANTS CENSURE BUT NOT REMOVAL .......... . 4
POINT TWO
SANCTION OF REMOVAL WOULD DEPRIVE

NIAGARA FALLS CITY COURT OF A
COMPETENT, RESPECTED, INTERESTED AND
EXPERIENCED JUDGE . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
L:\Sally\WP51 \PLEAD\restaino.wpd
COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
Robert M. RESTAINO,
Petitioner,
- against -

JUDICIAL CONDUCT,
Respondent.
This is an appeal from a decision, dated November 13,
2007, of the New York State Commission on Judicial Conduct,
disciplining Petitioner pursuant to Section 44, subdivision 1 of
the Judiciary Law and Article 6, Section 22, subdivision a of the
New York State Constitution. The Commission determined that the
appropriate disposition was the removal of the Petitioner for
certain actions he undertook on one day while presiding as a
Niagara Falls City Court Judge. One member of the Commission
dissented and voted for the lesser sanction of censure; and one
other member while concurring provided a separate opinion on the
basis that removal was not appropriate here but felt bound by the
ruling of another matter with which he did not agree.
L:\Sally\WP51 \PLEAD\restaino.wpd 1
INTERESTS OF PARTICIPANT .AMICI CURIAE
The participants, and proponents, of this Amici Brief,
are various not-for-profit entities and organizations in the City
of Niagara Falls, New York, that work with a constituency(ies) in
Niagara Falls part of which constituency is fairly representative
of the visitors to Niagara Falls City Court of which Judge Restaino
is the judge. The Amici who have requested to file this Brief are
the following:
a) The Niagara Falls Boys' and Girls' Club, Inc., a
not-for-profit entity, of which Judge Restaino has
been an active Board member for in excess of ten
(10) years;
b) Niagara Catholic High School, a diocesan Catholic
high school in the City of Niagara Falls, New York,
of which Judge Restaino is a graduate, friend and
had been a Board member and President for a number
of years;
c) Niagara Ministerial Council, which is a coalition of
Christian ministries in the City of Niagara Falls,
New York. Judge Restaino has supported their youth
program, been an advisor and has returned to the
Council's communities for personal interaction;
L:\Sally\WP51\PLEAD\restaino.wpd 2
d) The PLWW Crime Watch Block Club Coalition, which is
a coalition of four (4) inner-city Block Clubs.
Judge Restaino deals directly with this coalition to
assist their existence; provides an in-person and
financial assistance; deals directly with the
coalition to work on community service projects for
those in his Drug and Domestic Violation courts;
e) The Niagara Falls Block Club Council;
f) Niagara Falls Public Library, which is a semi-
autonomous department of the City of Niagara Falls,
having its own Board and budget, and for which Judge
Restaino is an active advisor and was a Board member
in the past.
POINT ONE
THE CONDUCT OF JUDGE RESTAINO,

A JURIST WITH A PREVIOUSLY
UNBLEMISHED RECORD (and an
unblemished record from March 11, 2005,
when the incident complained of
occurred until his recent removal) ,
WARRANTS CENSURE BUT NOT REMOVAL.
Judge Restaino did what he believed at the time was
appropriate for the dignity of the Court.
His actions were not based on any desire for personal
gain or advantage to him or any acquaintance. Contra In Re
Gibbons, 98 NY2D 448 (2002) where the jurist engaged in an
inappropriate relationship with his former firm. Neither were his
actions based upon any personal vindictiveness. Rather, Judge
Restaino made an error in judgment, a human flaw (See "Removal
Finding Unjust", NYLJ 1/6/06 p.2 col. 305), which may warrant
censure but not removal. "For Judges are but men and women who are
nonetheless worthy though, like all human beings, they are
sometimes less than perfect." Lonschein v. State Commission on
Judicial Conduct, 50 NY2d 569, 574 (1980) - dissenting opinion
Justice Fuchsberg.
A-UNPRECEDENTED DECISION
The Commission's decision to remove Judge Restaino would
not serve any further purpose. Clearly, as evidenced by his
deportment since the incident, there is no fear of future danger to

the community or that such actions would be repeated. As well, the
effect of this proceeding to date gives ample warning to the
judiciary, if same were warranted. In past cases where there has
been serious judicial misconduct, the Commission had voted to
censure rather than remove. For example, in the Matter of Mills,
2005 Annual Report 185, the jurist unlawfully jailed an acquitted
pro se litigant on contempt charges. Instead of releasing him, the
jurist altered a commitment order to reflect a conviction under a
different statute. The same judge held a non-party (father of a
defendant) in contempt of court for using profanity in a parking
lot near the courthouse. Likewise, in Matter of Dusen, 2005 Annual
Report 155, the Commission censured a jurist who fabricated a
conviction order to facilitate the release of a defendant so that
the Immigration and Naturalization Service could arrange for its
agents to arrest and deport him. Both the Matter of Mills, supra,
and Matter of Dusen, supra, resulted in an order for censure and
not removal. The times that the Commission or the Court of Appeals
ever removed a judge for a single incident of misconduct not
involving venality or a "serious breach of trust" are extremely
rare. In fact, Judge Restaino otherwise has a previous unblemished
record on the bench both before and since this incident. See also
Matter of Friess, 1982 Annual Report 109, where censure was imposed
L:\Sally\WP51 \PLEAD\restaino. wpd 5

upon a jurist who had released a murder suspect into his own
custody, took her to his home and provided her with counsel for her
next court appearance.
The remedy of removal is one that should only be imposed
in the most egregious circumstances and, it is submitted, it should
not be imposed for tempered poor judgment or even extremely poor
judgment. See Matter of Dusen, supra, and Matter of Cunningham v.
Commission on Judicial Conduct, 57 NY2d 270, 275 (1982). The
purpose of the disciplinary proceedings is not punishment but
imposition of sanctions necessary to safeguard the Bench from unfit
incumbents. See Matter of Esworthy, 77 NY2d 280 (1991). It is
submitted that the removal of a judge is generally unwarranted
where there is no malevolent or venal motive. See Matter of
Lonschein, supra, and Matter of Cohen, 74 NY2d 272 (1989). In the
instant case, the Petitioner was concerned with the integrity and
process of the Court. There was no venal motive and his act was
not done for any political or financial gain. In Matter of Kiley,
74 NY2d 364 (1989), the jurist interfered with two separate
criminal proceedings on behalf of friends. The sanction of censure
was imposed as the judge's conduct was motivated by sympathy and
not personal gain, venality or dishonorable purpose.
B-NATURE OF NIAGARA FALLS CITY COURT
The nature of this Court must be understood. Niagara
Falls City Court, over the years has turned into a high volume
Court requiring now four (4) fulltime judges (formerly two (2)
fulltime and one part-time). While the Court was once an informal
simplified forum, it has now become a very structured four judge
multi-court, having a drug court and domestic violation court, as
well as the routine criminal, traffic, small claims and civil
courts; also accepting transfer cases from New York State Supreme
Court.
It is an outdated building which has been sanctioned by
the Office of Court Administration. The building houses the Police
Department, as well. They have had to make makeshift courts in the
parts of the building not meant for courts including, for example,
the former parking garage and a police training room. As a result,
there are courts on multi floors without the appropriate
necessities to make a courtroom run smooth and be safe.
As well, it is well known that the City of Niagara Falls,
is perhaps one of the most financially distressed areas of the
State with rising unemployment, decreasing tax base, and with a
senior and Medicaid population ever increasing and being dependent
on a smaller amount of working taxpayers. As a result, the
courtrooms are packed beyond capacity and the halls are likewise.
C-DOMESTIC VIOLENCE COURT
As was discussed above and explained by witnesses at the
proceeding, defendants are treated differently in the Niagara Falls
City Domestic Violence Court; it does not function like traditional
courts. Defendants are urged to complete programs and their
progress is monitored over a period of numerous adjournments after
the entering of a plea. The hope being that a defendant will
successfully complete the program and have his case dismissed.
Further, defendants are often spoken to by the court and the court
may often become involved in a colloquy with the defendant or at
times, the defendant's parent or other family member. A judge in
this Part may often tell a defendant why it might be important for
him to continue his education. The judge may seek to develop a
feeling of trust. In short, depending on the particular
personality of the jurist, a judge might often speak to a defendant
as a "dutch uncle", as the purpose of the Part is to help the
defendant, get him/her into the community as a citizen who can
contribute to society. Conversely, trial court judges in criminal
cases are often faced with a defendant who wants to "speak out" or
personally provide the Court some information. It is not uncommon
for a judge to tell such a defendant that he should speak to his
lawyer first before saying anything in open Court or that what they
say might in some way be used against them.
Consistent herewith, one of those affected Defendants
appeared before the Commission to speak in favor of Judge Restaino.
POINT TWO
SANCTION OF REMOVAL WOULD DEPRIVE

NIAGARA FALLS CITY COURT OF A
COMPETENT, RESPECTED AND
EXPERIENCED JUDGE
Niagara Falls City Court has been well-served by Judge
Restaino since he began his judicial career in 1996, and his
removal would deprive the City of a competent, respected, supported
and experienced jurist. In addition to the previously and
subsequent unblemished record the Commission acknowledged in its
decision, Judge Restaino has been very active in and accessible to
the community on his own time.
Further, the array of prominent character witnesses for
Judge Restaino is not only a testament to his competence and
credentials, but to the unusual breadth of experience he has
brought to the bench.
In view of Judge Restaino's competence and experience,
his removal for what has been shown as "one bad day", is neither
venal nor abusive would be to the detriment of Niagara Falls City
Court and the City of Niagara Falls, New York.
CONCLUSION
THE DETERMINATION OF THE COMMISSION

RECOMMENDING REMOVAL SHOULD BE
REJECTED AND THIS COURT INSTEAD
SHOULD DIRECT THAT THE SANCTION OF
CENSURE BE IMPOSED.
DATED: February 1, 2008
Attorneys for Arnicis Curiae Brief

c/o 730 Main Street
(716) 285-3031
TO: Robert H. Tembeckjian, Esq.

Counsel to the State Commission on
Judicial Conduct
61 Broadway

424 Main Street
(716) 852-5533
STATE OF NEW YORK
Qtnurt nf Appeuls
Niagara County,
Petitioner,
vs.

Respondent.

AMICI CURIAE IN THE COURT OF APPEALS AND
AFFIRMATION IN SUPPORT OF MOTION
MARY ANN OLIVER, ESQ.

Niagara County Legal Aid Society
775 Third Street
Telephone: (716) 284-8831
Facsimile: (716) 284-8040
MATTHEW T. WEBER, ESQ.

800 Main Street, Suite 2C
W. MAXWELL COYKENDALL, ESQ.

EMMA CHAPMAN
President
Landlords' Association of Greater Niagara
1514 Main Street

STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO
Petitioner,
NOTICE OF MOTION
-vs- FOR LEAVE TO SUBMIT
A BRIEF AS AMICI CURIAE
STATE COMMISSION ON
JUDICIAL CONDUCT
Respondent.
PLEASE TAKE NOTICE that upon the annexed affirmation of Mary Ann
Oliver, Esq., the undersigned will move this Court, at Court of Appeals Hall, 20
Eagle Street, Albany, New York 12207-1095 on February 11, 2008, for an order
granting leave to Mary Ann Oliver, Esq., et al., representing 3 individual practicing
attorneys in Niagara Falls, New York and the Landlords' Association of Greater
Niagara to file a brief as amici curiae in the above-captioned appeal, and for such
further relief as the Court may deem just and proper.
Dated: Niagara Falls, New York

February 4, 2008
STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO
Petitioner, AFFIRMATION IN SUPPORT

OF MOTION FOR LEAVE TO
-vs- SUBMIT A BRIEF AS
AMICI CURIAE
STATE COMMISSION ON
JUDICIAL CONDUCT
State of New York )

County of Niagara ) SS:
City of Niagara Falls )
MARY ANN OLIVER, ESQ., an attorney admitted to practice law in the
courts of the State of New York, affirms under the penalties of perjury:
1. I am an attorney at law duly licensed to practice my profession in the
State of New York and admitted to practice before this Court. I am the Managing
Attorney of Niagara County Legal Aid Society, a division of Neighborhood Legal
Services, Inc., however, I make this affirmation in my individual capacity as an
attorney. My office is not involved in the writing of this affirmation.
2. I make this affirmation in support of a motion for permission to
submit a brief as amici curiae in support of the Petitioner, Judge Robert M.
Restaino, in the above-captioned appeal. This affirmation is based on my

experience of appearing before Judge Restaino in Niagara Falls City Court as
attorney for low-income tenants facing eviction.
3. The proposed amici include individual practicing attorneys whose law
offices are in Niagara Falls. I have appeared before Judge Restaino in eviction
cases as the tenant's attorney. Maxwell Coykendall, Esq. and Matthew T. Weber,
Esq. have appeared before Judge Restaino on various legal matters including
eviction cases as the landlord's attorney. The Landlords' Association of Greater
Niagara's membership is landlords from Niagara Falls as well as from throughout
Niagara County, some of whom have appeared before Judge Restaino as
petitioners in eviction cases. The proposed amici are from both sides of
landlord/tenant cases and are concerned about the severity of the punishment of
removal imposed on Judge Restaino for his actions on March 11, 2005. The
proposed amici are interested in the fair and proper administration of justice not
only in the Niagara Falls City Court but in the court system as a whole.
4. Petitioner Robert M. Restaino is appealing the decision of the New
York State Judicial Commission to remove him from the bench for his actions on
March 11, 2005.
5. This case concerns the balance between punishment appropriate to
protect the integrity of the courts and the public's confidence in the fairness of the
court system. The proposed amici, as those who have appeared in Niagara Falls
2
City Court, have a great interest in the balance being maintained and are concerned
that removal will severely damage public confidence in all of the legal system.
6. Amici's proposed brief (a copy of which is submitted herewith) would
be of special assistance to the Court because of our unique perspective. See Rule
500.11 (e) (3). Specifically, the proposed amici curiae brief is from those who
have the same view of the Petitioner even though we are on opposite sides of legal
cases. Our view pertains to his fairness, integrity, knowledge of the law and
administration of the law.
WHEREFORE, for the above-stated reasons, the proposed amici
respectfully request that an order be entered granting leave to submit a brief as
amici curiae in the above-captioned appeal, and for such other relief as the Court
may deem just and proper.

February 4, 2008
Mary Oliver, Esq.

Attorney for Amici
77 5 Third Street
(716) 284-8831
3
STATE OF NEW YORK
<!tnurt nf Appeals
Niagara County,
Petitioner,
vs.

Respondent.
JOINT BRIEF OF AMICI CURIAE
MARY ANN OLIVER, ESQ.

77 5 Third Street ,
Telephone: (716) 284-8831
Facsimile: (716) 284-8040
MA'M'HEW T. WEBER, EsQ.

W. MAXWELL COYKENDALL, ESQ.

EMMA CHAPMAN
President
Landlords' Association of Greater Niagara
1514 Main Street

TABLE OF CONTENTS
Preliminary Statement I
Interest of Amici Curiae I
Factual Background 2
Argument 3
Removal of Judge Restaino is an excessive punishment
for actions that did not shake the community's confidence
in the fair and proper administration of justice.
Conclusion . 8
I
Cases
Matter of Bauer, 3 NY3d 158 (2004) 6
Matter ofBlackbume, 7 NY3d 213 (2006) 5
Matter of Gibbons, 98 NY 2d 448 (2002) 7
Matter of Sims, 61NY2d349 (1984) . 6
11
This amicus curiae brief is submitted in support of Judge Robert M.
Restaino's appeal of the New York State Commission on Judicial Conduct's
determination to remove him from his position as Niagara Falls City Court Judge.
The removal recommendation was based on his actions on March 11, 2005.
Mary Ann Oliver, Esq., is the Managing Attorney of Niagara County Legal
Aid Society, a division of Neighborhood Legal Services, Inc. She submits this
brief in her individual capacity as an attorney. Her office is not involved in the
writing of this brief, however, it has requested permission from this Court to
appear and file an amicus curiae brief with the Bar Association of Niagara County.
Ms. Oliver has represented indigent tenants in courts throughout Niagara County,
including Niagara Falls City Court, for more than eighteen (18) years. Slightly
more than sixty (60) percent of her clients are low-income tenants. As a member
of the bar, she has a vital interest in the fair and proper administration of justice,
especially as it relates to those who have little voice in society.
W. Maxwell Coykendall is an attorney with the firm of Tisdale &
Coykendall. He has been practicing for thirteen (13) years. As part of his general
practice, Mr. Coykendall has appeared before Judge Restaino on numerous
occasions on a wide variety of legal issues, including landlord/tenant matters. As a
1
member of the private bar, he has a vital interest in the fair and proper
administration of justice.
Matthew T. Weber, Esq., is a solo practice attorney. He has been practicing
law for nine years. He has appeared before Judge Restaino on numerous
occasions, particularly in the area of landlord tenant matters. As a member of the
private bar, he has a vital interest in the fair and proper administration of justice.
The Landlords' Association of Greater Niagara was formed in 2001 by
individual and corporate landlords of residential properties in Niagara County.
Their mission is to promote accountability between landlords and tenants and to
establish high standards of business conduct for landlords. The Association has
approximately one hundred (100) members, the majority of whom own property in
the city of Niagara Falls. Many members have appeared as petitioners in Niagara
Falls City Court before Judge Restaino. Their interest is the public's confidence in
the court system's ability to fairly and properly administer justice.
FACTUAL BACKGROUND
Judge Restaino was first elected in 1996 as a part time judge in Niagara Falls
City Court. He was elected as a full time judge in 2002.
He has served in the civil, criminal and domestic violence parts of Niagara
Falls City Court and earned an excellent reputation. As Niagara Falls City Court
Judge Angelo Morinello testified before the Referee in November 2006, Judge
2
Restaino's reputation is one that exceeds most judges. (Record on Review at 540-
41).
According to the testimony of Niagara Falls City Court Chief Judge Mark A.
Violante, Judge Restaino' s dedication to his position was second to none and his
social, personal and professional character is impeccable. (Record on Review at
517, 527).
On March 11, 2005, in Domestic Violence Court, Judge Restaino threatened
to jail or establish bail for all defendants present in the court unless the owner of a
ringing cell phone admitted its possession. When no one admitted having the
phone that rang, Judge Restaino proceeded with his threatened action.
Fifteen months later, Judge Restaino was charged with judicial misconduct
and after a hearing before a referee was found to be in violation. The Commission
determined that Judge Restaino should be removed from the bench.
The draconian punishment of removal is now on appeal.
ARGUMENT
REMOVAL OF JUDGE RESTAINO IS AN EXCESSIVE PUNISHMENT

FOR ACTIONS THAT DID NOT SHAKE THE COMMUNITY'S
CONFIDENCE IN THE FAIR AND PROPER ADMINISTRATION OF
JUSTICE.
We respectfully submit that the Commission's punishment of removal is
excessive and does not promote public confidence in the fair and proper
3
administration of justice. Public confidence in the courts has not been irreparably
damaged by Judge Restaino's actions on a single day of his eleven (11) year career
as a judge. To the contrary, removal diminishes the community's view of fairness
within the judicial system. We believe that censure is the appropriate response
both as a punishment for Judge Restaino's actions and as a measure to ensure the
public's confidence in the future administration of justice.
The record is clear that Judge Restaino's actions were an aberration. Amici
have appeared before Judge Restaino in cases too numerous to count. During each
of these appearances, Judge Restaino was consistently guided by the law and
respect for the parties before him. Judge Restaino was always patient and he never
rushed through a case. He painstakingly took the time needed for each case
regardless of how crowded his calendar and courtroom were. An example was
when, with a standing room only courtroom for both litigants and attorneys and
with the landlord's attorney trying the patience of Job, Judge Restaino conducted a
fifty minute hearing. He allowed the parties great latitude in relating their stories
on a non-payment eviction before he rendered his decision. In doing so, he
ensured their respect for and confidence in the legal system.
The Commission on Judicial Conduct found that Judge Restaino acted
"without any semblance of a lawful basis". (Record on Review at 15) Amici
know such action to be an aberration from his usual conduct. Judge Restaino has
always applied the law to the facts of the case. Amici have appeared before him on
4
occasions when a question of law would arise. He would stop the proceedings,
produce the statutes and casebooks, review them openly in court, render a decision
and explain his decision in light of the law. He also consulted treatises on
landlord/tenant law such as New York Real Property Practice, Rasch's Landlord
and Tenant. Whether or not amici liked his decision, amici agreed that it was
based on application of the law to the facts at hand.
The record is clear that Judge Restaino has an extremely high reputation.
Amici' s experiences were that he was always fair to both sides of a case. Judges
can become known as a landlord's judge or a tenant's judge but Judge Restaino
was not known as either. Amici knew him to give both sides of a case a fair
chance.
Unlike Matter ofBlackburne, 7 NY3d 213 (2006), Judge Restaino has
consistently had respect across a wide spectrum of the community. Evidence of
this is in the number and range of briefs filed in his support. Those opposite each
other in the courtroom and those representing different interests inside and outside
the courtroom are united in support of Judge Restaino. The briefs from law
enforcement, the public defender's office, bar associations, specialty court
personnel, New York State Association of City Court Judges, community groups
and this brief show views of Judge Restaino's fairness and integrity from a variety
of perspectives and throughout his time on the bench and as an attorney.
5
The record is clear that Judge Restaino is remorseful and has expressed his
regret at the action he took on March 11, 2005. More important, however, is the
fact that he has addressed his problem. He sought professional help to understand
what prompted such an aberration from his consistently proper judicial demeanor.
He also sought help to prevent any recurrence. This stands in stark contrast to the
situation that existed in Matter of Bauer, 3 NY3d 158 (2004). Judge Bauer
committed multiple and continual incidents of severe misconduct but he showed no
remorse and believed his actions were not wrong. Judge Restaino' s case is also
distinguished from Matter of Sims, 61NY2d349 (1984), where Judge Sims never
saw her conduct as wrong.
A premise of Domestic Violence Court is that people can change their lives
to prevent future problems and can live constructive and healthy lives. Judge
Restaino, who presided in Domestic Violence Court, should also be given that
chance. As the defendants in Domestic Violence Court on March 11, 2005, should
not have been reassessed bail or jailed because their punishment was an excessive
response to the situation, Judge Restaino should not be removed from the bench
because his punishment is an excessive response to one incident in his well
regarded career as jurist and attorney. Excessive punishment of a judge viewed so
highly by so many for so long would erode public confidence in the fairness of our
judicial system.
6
Amici do not argue that Judge Restaino's actions on March 11, 2005, were
right; quite the contrary. His actions on that one day were very wrong. They did
not, however, irreparably damage public confidence in his ability to serve as a
judge or in the fair and proper administration of justice in his court. Unlike Matter
of Gibbons, 98 NY 2d 448, 450 (2002), his actions did not 'jeopardize the very
legal system he was duty-bound to protect and administer". Instead, Judge
Restaino's fairness, knowledge of the law andjudicial demeanor instilled
confidence in the judicial system.
7
CONCLUSION
Amici respectfully request, based upon the reasons stated above, that this
Court impose a penalty of censure upon Judge Restaino.
Respectfully submitted,
~10.c=--d Qf,;,,-foi
MafY ~Oliver, Esq.
Attorney for Amici
775 Third Street
(716) 284-8831
Dated: February 4, 2008
8
Lipsitz Green Sc:irne CambriaLLP
Attorneys at Law 42 Delaware Avenue, Suite 120, Buffalo, New York 14202-3924 P 716 849 1333 F 716 855 1580 (Not for Service) www.lglaw.com
Pau! J. Cambria, Jr. 3

Ja:-nesT. Scime
He:-bert L Greenman
Patrick C. O'Reilly
VIA OVERNIGHT
Michael Schiavone UPS
Laraine Kelley
William M. Feigenbaum
Joseph J. Gumkowski
Richard P. Weisbeck, Jr. February 6, 2008
Mark L. Stu!maker
Barry Nelson Covert
Christopher S. Mattingly
Robert L. Boreanaz Hon. Stuart Cohen, Clerk
Thomas M. Mercure
John A. Collins Court of Appeals
George E. Riedel, Jr.'
Michael P. Stuermer• Court of Appeals Hall
Jeffrey F. Reina
Sharon M. Heim 20 Eagle Street
Cherie L. Peterson
Paul J. Cieslik Albany, New York 12207
Michael R. Weremblewski
Gregory P. Krul!
Michele A. Smith
Bridget M. O'Connell ATTN: Suzanne Aiardo, Esq.
Michael S. Deal ''
Joseph J. Manna
Philip Scaffidi
Robert E. Ziske RE: In the Matter of Robert M. Restaino, A Judge of the Niagara Falls City Court,
Kevin W. Hourihan
Thomas C. Burnham Niagara County vs. New York State Commission on Judicial Conduct
William P. Moore
David C. Zimmerman s
Karen B. Feger
Patrick B. Shanahan Dear Judge Cohen:
Jonathan W. Brown 3
Teresa A. Bailey
John M. Lichtenthal
Racheal C. Irizarry 2 Enclosed herewith, please find an original plus one copy of Notice of Motion and
Andrew D. Kehrer
Joseph M. Tripi Affirmation in Support of Motion to Appear as Amici Curiae along with Brief of Amici
OF COUNSEL Curiae with respect to the above referenced matter. I have also attached to said
Richard Lipsitz
Carl A. Green documents a Certificate of Service.
Eugene W. Salisbury'
SPECIAL COUNSEL
James W. Kirkpatrick
I thank you for your courtesy in this regard and my office will await your further reply.
Roger W. Wilcox, Jr.
Denis A. Scinta
David G. Henry
Richard D. Furlong
Very truly yours,
Scott M. Schwartz
John P. Hains 2
Diane M. Roberts
Lipsitz Green Scime Cambria, LLP
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COMPENSATION
REPRESENTATIVE
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Enclosures
1
Also admitted District of Columbia
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BUFFALO AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLY HILLS ~~~\!
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cc: Terrence M. Connors, Esq. (Via Regular Mail)
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Attorney for Petitioner Robert M. Restaino
420 Main Street
716-852-5533
Robert H. Tembeckjian, Esq. (Via Overnight, UPS)

Counsel to the State Commission on Judicial Conduct
~
John J. Postel, Esq., of Counsel
Deputy Administrator in Charge
61 Broadway
212-809-0566
BUFFALO AMHERST CHEEl<TOVVA.GA FREDON!A NEW YORK CITY BEVERLY HILLS

STATE OF NEW YORK
COURT OF APPEALS
In the Matter of Robert M. Restaino

Niagara County
Petitioner
NOTICE OF MOTION
vs. AND
AFFIRMATION IN
NEW YORK STATE COMMISSION ON SUPPORT OF
JUDICIAL CONDUCT, MOTION TO APPEAR AS
AMICI CURIAE
INDEX NO.
Respondent. Hon.
Justice Assigned
PLEASE TAKE NOTICE, that upon the annexed affidavit of Herbert L. Greenman,
Esq., dated February 5, 2008, the undersigned will move this Court upon the instant papers
and without oral argument at a regular Motion Term of this Court to be held on February
11, 2008, for an order pursuant to 22 N.Y.C.R.R. §530.7(c) and 500.1 l(f): granting Jamie
Marcolini, Family and Children's Service of Niagara, Inc., Elizabeth Brady (Niagara
County Department of Social Service) Jeffrey Smith, Office of Court Administration and
Jennifer Hall, Department of Social Services (collectively, the "Amici") permission to
appear as amici curiae in the above-captioned matter and on matter (2) accepting the brief
that has been filed and served together with the instant motion.
DATED: Buffalo, New York

February 5, 2008 Yours etc., 11 JJ
By: i-\" ~ 'f #~;rz..~
Herbert L. Greenman, Esq.
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Amici
Office and P .0. Address
42 Delaware Avenue, Suite 300
(716) 849-1333
1
TO:
Hon. Stuart Cohen, Clerk
Court of Appeals
20 Eagle Street
Albany, New York 12207 (Attention: Suzanne Aiardo, Esq.)

420 Main Street
Buffalo, NY 14202
New York State Commission on Judicial Conduct
801 2nd Ave.
2
STATE OF NEW YORK
COURT OF APPEALS

Niagara County
Petitioner
AFFIRMATION IN
SUPPORT OF MOTION
FOR LEAVE TO
SUBMIT A BRIEF AS
AMICI CURIAE
VS.

JUDICIAL CONDUCT,
Respondent.
STATE OF NEW YORK

COUNTY OF ERIE ss:
CITY OF BUFFALO
HERBERT L. GREENMAN, ESQ. an attorney admitted to practice law in the
Courts of the State of New York, affirms under the penalties of perjury:
1. I am an attorney at law duly licensed to practice my profession in the State of
New York and admitted to practice before this Court. I am a senior partner
with the law firm of Lipsitz Green Scime Cambria, LLP.
2. I make this affirmation in support of a motion for permission to submit a brief
as amici curiae in support of petitioner Robert M. Restaino in the above
captioned matter. This affirmation is based on information and belief, the
source of which is my review of the record, determination of the Commission
on Judicial Conduct, and petitioner's brief in the above-captioned case.
1
3. Petitioner, Robert M. Restaino, a Judge of the Niagara Falls City Court,
Niagara County, has petitioned this Court to review the determination of the
New York State Commission on Judicial Conduct. It is counsel's
understanding that the Commission on Judicial Conduct recommended Judge
Restaino's removal from the bench by a 9 to 1 decision. The Chair of the
Commission, in a dissenting opinion, recommended censure.
4. Counsel makes this affirmation in support of a motion pursuant to 22
N.Y.C.R.R. §530.7(c) and §500.lO(f), for an order permitting Amici Curiae
to appear in the above captioned appeal and to file the proposed brief which
accompanies this motion.
5. The proposed amici have specialized knowledge relative to Judge Robert M.
Restaino's fitness to serve as a Niagara Falls City Court Judge and therefore
can offer special assistance to the Court in reviewing this matter.
6. Specifically, amici worked closely with Judge Restaino as administrators and
health care providers when he presided over Niagara Falls City Court
Domestic Violence Specialty Court. Below, amici are identified and their
interactions with Judge Restaino are described, including contents of
conversations had with counsel, which amici believe to be of special
assistance for the Court's consideration.
2
Amici Curiae
Jeffrey Smith
7. Jeffrey Smith is the Project Director for the New York State Eighth Judicial
District, Office of Court Administration. He administers all of the "Specialty
Courts" in the Eighth Judicial District including all Domestic Violence
Courts.
8. Prior to the time that Judge Restaino was suspended, Mr. Smith had worked
closely with Judge Restaino for approximately 6 years. He observed that
Judge Restaino's temperament while on the bench was "beyond reproach."
As well, Mr. Smith has stated that Judge Restaino showed "complete honesty
and integrity" while handling a very complicated and congested calendar in
the Domestic Violence Court as well as in the Criminal Courts in the Niagara
Falls City Court.
9. Mr. Smith has concluded that since he has left the bench, Judge Restaino's
direction and ability to supervise has been extremely missed. Mr. Smith has
noted that Judge Restaino never showed any personal bias against anyone
appearing in his Court. He has stated that Judge Restaino' s absence from the
bench has been a significant loss, particularly to the Domestic Violence
Court.
10. Based on his experience as Project Director for the New York State Eighth
Judicial District, Office of Court Administration, administering all specialty
courts in the Eighth Judicial District, it is Mr. Smith's opinion that Judge
3
Restaino is an asset to the bench and continues to be fit to serve; accordingly,
Mr. Smith respectfully requests that this Court permit him to appear as
amicus curiae and file the brief accompanying this motion.
Family and Children's Service of Niagara, Inc.
11. Family and Children's Service of Niagara, Inc. is a charitable, tax exempt
organization providing a variety of services for domestic violence victims and
participants in the Domestic Violence Courts.
12. According to Kenneth Sass, President and CEO of Family and Children's
Service of Niagara, Inc. and Bernard Huber, Director, Judge Restaino was
singularly responsible for developing the Adult and Teen Opportunities for
Non-Violent Education (ATONE) program. While the Domestic Violence
Court treated both adults and adolescents; the ATONE program was
specifically designed to allow adolescents to be treated in a separate, more
appropriate setting.
13. Both Mr. Sass and Mr. Huber have stated that Judge Restaino worked well
with everyone involved in the ATONE program as well as the Domestic
Violence program. Judge Restaino was observed to have a particular affinity
toward working with youths in the community and was committed to all of
the litigants in both programs. Judge Restaino always had a "hands-on"
attitude toward the program.
14. Both Mr. Sass and Mr. Huber observed that Judge Restaino was "fair and
kind in his approach" to the programs. Particularly, both indicated that Judge
4
Restaino had a commitment to patience and to the programs which, they
believed, fit Judge Restaino's personality well.
15. Both Mr. Sass and Mr. Huber recalled that the program was "tremendously
effective" in treating adolescents with anger management issues. They have
indicated that the City of Niagara Falls community has experienced many
issues with violent youth and, as a result, they came to see the ATONE
program as a key resource in developing a separate program in which to treat
adolescents charged with crimes, who also had anger management problems.
16. Based on Judge Restaino's exemplary service through the ATONE program
and otherwise, it is the opinion of Family and Children's Service of Niagara,
Inc. that Judge Restaino is an asset to the bench and continues to be fit to
serve; Accordingly, Family and Children's Service of Niagara, Inc.
respectfully requests that this Court allow for them to appear as amici curiae
and file the brief accompanying this motion.
Jamie Marcolini
17. Jamie Marcolini oversees specialty courts, including those for domestic
violence, mental health, and drugs, for the Office of Court Administration.
Previously, Mr. Marcolini was an employee of Horizon Health Services,
Niagara Falls, New York, and in that capacity he helped administer the
18. As administrator of the Domestic Violence Court when Judge Restaino
presided, Mr. Marcolini met with Judge Restaino on a weekly basis,
5
reviewing virtually every domestic violence file with him. Mr. Marcolini was
present while Domestic Violence Court was in session, and Judge Restaino
was on the bench.
19. Mr. Marcolini has recalled that while on the bench, Judge Restaino "would
always do what was right" to ensure that all defendants were well aware of
their obligations and what was expected of them.
20. Mr. Marcolini has also noted that Judge Restaino was extremely patient and
"worked endless hours to make sure things went the right way." Judge
Restaino treated all participants in the program with "respect and dignity."
He never belittled anyone.
21. Mr. Marcolini, who continues to work with the Domestic Violence Court,
concluded that Judge Restaino's current absence from the City Court was a
"major loss to the Court," indicating that Judge Restaino "simply knew how
to do things the right way at all times."
22. As well, Mr. Marcolini believed that Judge Restaino's ability to serve as a
Domestic Violence Court Judge was benefitted by his close work with
numerous community organizations including block clubs and the local Boy's
Club.
23. Mr. Marcolini has suggested that Judge Restaino was known throughout the
Niagara Falls community as a civic "role model" who was well liked and
respected. He has described Judge Restaino's demeanor both on and off the
bench as "likeable and personal."
6
24. Based on Mr. Marcolini's experience managing Domestic Violence Court
and firsthand experiences with Judge Restaino in that capacity, it is his
opinion that Judge Restaino is an asset to the bench and continues to be fit to
serve; accordingly, Mr. Marcolini respectfully requests that this Court permit
him to appear as amicus curiae and file the brief accompanying this motion.
Elizabeth Brady
25. Elizabeth Brady is a supervisor with the Department of Social Services,
Children's Services in Niagara County, New York. She has been a
supervisor for 20 years and has been employed with the department for 30
years.
26. Elizabeth Brady has been familiar and worked with Judge Restaino since at
least January, 2005. In or about that time, Judge Restaino was appointed as
an acting judge for the Niagara County Family Court. As such, Judge
Restaino presided over neglect and abuse cases, and was assigned to hear a
wide variety of Family Court cases including Person In Need of Supervision
(PINS) petitions and juvenile delinquency cases. At that time, there was a
large backlog of cases and consequently Judge Restaino presided over an
extremely large calendar. Mrs. Brady worked closely with Judge Restaino on
a regular day-to-day basis, in an attempt to decrease the backlog of cases.
27. Mrs. Brady has stated that within a short period of time Judge Restaino was
able to coordinate with a large number of agencies in an effort to decrease the
caseload and handle each matter appropriately. She has described that Judge
7
Restaino's demeanor was "very professional," stating that he was a person
with whom all parties could communicate. Additionally, Mrs. Brady has
indicated that Judge Restaino had a strong "rapport" with all litigants and
parties. She has described Judge Restaino's professionalism with all
concerned as "solid, even-handed and professional," concluding that Judge
Restaino possessed "every attribute I would wish a judge to have."
28. Mrs. Brady has stated that she was saddened to see Judge Restaino return to
the Niagara Falls City Court bench after he had created a more manageable
caseload because he performed such a "remarkable" job while sitting as a
Niagara Falls Family Court Judge.
29. In addition to the above, shortly after Judge Restaino was appointed as acting
Family Court Judge, the New York State Legislature passed a significant
change in the law which was found to be complicated and difficult to
understand. Judge Restaino generously helped to educate all professionals
involved in applicable cases as to the necessity and manner in which the
changes were to be addressed.
30. Based on Mrs. Brady's experience as a supervisor with the Department of
Social Services, Children's Services for 20 years and 30 years within the
Department, it is her opinion that Judge Restaino is an asset to the bench and
continues to be fit to serve; accordingly, Mrs. Brady respectfully requests that
this Court permit her to appear as amici curiae and file the brief
accompanying this motion.
8
Special Assistance to the Court
31. Amici' s unique perspective of having worked closely with Judge Restaino in
his capacity as judge for the Domestic Violence Court, the Court in which the
conduct of March 11, 2005 took place, provides this Court with special
assistance in assessing Judge Restaino's fitness to continue to serve as a
Judge of the City Court of Niagara Falls, Niagara County.
32. Amici do not condone Judge Restaino's conduct of March 11, 2005, which
has brought him before this Court.
33. Nevertheless, unanimously, Amici believe that if Judge Restaino were not
permitted to continue to serve, his loss to the bench would be devastating.
34. Amici respectfully submit that Judge Restaino should be allowed to continue
as a Niagara Falls City Court Judge and that the appropriate remedy in the
instant case would be a censure.
WHEREFORE, it is respectfully requested that this Court enter an order (1)
granting Amici permission to appear as Amici Curiae in this appeal (2) accepting the
9
brief that has been filed and served along with this motion and (3) granting such other
relief as to this Court deems just and proper.

February ~,2008
By: --H~x~~
42 Delaware Ave.
(716)-849-1333
Attorney for Amici
EUZABE1H M. JAGORD ~A~)

N01ARY PUBLIC, STATE Of NEW YORK
QUALlflED IN ERIE COUNT(
MY COMMISSION EXPIRES OC1. 31, 20 ~
10
STATE OF NEW YORK
COURT OF APPEALS

Niagara County
Petitioner
vs.

JUDICIAL CONDUCT,
Respondent.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 6th day of February, 2008, I caused a
true and accurate copy of the attached Notice of Motion and Affirmation in Support of
Motion to Appear as Amici Curiae with proposed brief to be served via overnight delivery
on each of the following:

Court of Appeals
20 Eagle Street

420 Main Street
716-852-5533

61 Broadway
212-809-0566 ' J,~,,J
11
COURT OF APPEALS
STATE OF NEW YORK
ROBERT M. RESTAINO
a Judge of the City Court of Niagara Falls, Niagara County,
Petitioner,
-vs-
NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT,
Respondent.
FAMILY AND CHILDREN'S SERVICE OF NIAGARA, INC.
JEFFREY SMITH, OFFICE OF COURT ADMINISTRATION
JAMIE MARCOLINI, OFFICE OF COURT ADMINISTRATION
ELIZABETH BRADY, DEPARTMENT OF SOCIAL SERVICES
JENNIFER HALL, DEPARTMENT OF SOCIAL SERVICES
Herbert L. Greenman
Office and P.O. Address
(716) 849-1333
TABLE OF CONTENTS
Page
Preliminary Statement. ............................................................ .1
Interests of the Amicus Curiae .................................................... 3
Argument/Point One ............................................................... 5
JUDGE RESTAINO SHOULD NOT BE REMOVED

FROM THE BENCH
I. THE DETERMINATION BY THE NEW YORK

STATE COMMISSION ON JUDICIAL CONDUCT
Argument/Point Two ............................................................... 7
II. JUDGE RESTAINO IS AN ASSET TO THE

BENCH AND AN EXEMPLARY SPECIAL TY
COURT JUDGE WHO IS FIT TO SERVE AND
WHOSE REMOVAL WOULD HINDER THE
ADMINSTRATION OF NIAGARA FALLS CITY
COURT
Conclusion ........................................................................... 11
Page
In Re Blackbume, 7 NY3d 213 (2006) ...................................... 6
Matter of Quinn, 54 NY2d 386, 391(1981) ................................. 7
In Re Bauer, 3 ~'Y3d 158 (2004) ............................................. 10
In Re Watson, 100 NY2d 290, 304 (2003) ................................. 10
ii
This is an appeal from a determination of the New York State Commission on Judicial
Conduct made pursuant to Section 44, subdivision 4 of the New York State Judiciary Law on
November 13, 2007. Counsel has filed a Notice of Motion and Affidavit in support of a motion to
submit a brief as amici curiae on behalf of Petitioner, Robert M. Restaino, relative to the above
captioned matter.
As indicated in counsel's notice of motion, the proposed amici include a broad range of
court administrators and domestic violence court providers who have had many years of experience
working with and observing Judge Restaino, specifically when he presided over Domestic Violence
Court. The amici include:
• Jeffrey Smith, the Project Director for all "specialty courts" for the Office of Court
Administration, 3th Judicial District;
• Family and Children's Service of Niagara, ]nc., Kenneth Sass, President and CEO,
and Bernard Huber, Director of Family Counseling;
• Jamie Marcolini, prior care provider with Horizon Human Health Services in
Niagara Falls, New York and manager of Domestic Violence Court when Judge
Restaino presided; currently Manager of the Niagara Falls City Court Mental Health
Court for the Office of Court Administration;
• Elizabeth Brady, a supervisor for over 20 years with the Niagara County Department
of Social Services, Children's Services; and
• Jennifer Hall, a senior caseworker with the Niagara County Department of Social
Services (Department of Permanency and Planning).
All amici have particularized and specialized knowledge relative to Judge Robert M. Restaino's
fitness to continue to serve as a Niagara Falls City Court Judge and each have a unique perspective
as to the issues raised in his appeal. Accordingly, amici respectfully submit that they can provide
this Court with special assistance in reviewing this matter.
1
Amici are aware that a hearing was held in November, 2006 and a report was filed by the
referee on March 30, 2007. Subsequently, the parties submitted briefs with respect to the referee's
report. In their briefs, counsel to the Commission recommended the sanction of removal and
counsel for petitioner recommended censure. After oral argument on September 19, 2007, the
Commission determined that the appropriate sanction was removal from the bench.
All of the amici have personal knowledge relative to Judge Restaino's background and
perfonnance while a Niagara Falls City Court Judge. Indeed, all amici have specific information
relative to Judge Restaino's performance not only while he presided in the Niagara Falls Criminal
Court but, as well, his performance in presiding in the Niagara Falls City Court, Domestic Violence
Court. Some of the amici have personal knowledge of Judge Restaino' s performance while sitting
as an acting Niagara County Family Court Judge as well.
2
INTERESTS OF THE AMICI
As noted above, amici include a broad range of court administrators and domestic violence
court providers who have had many years of experience working with and observing Judge
Restaino. They unanimously agree that Judge Restaino's aberrant act should not lead to his removal
from the bench. Amici have long-term experience with Judge Restaino, having worked closely with
him throughout his years as a Niagara Falls City Court Judge and acting Niagara County Family
Court Judge. They are also familiar with his reputation throughout the entire Niagara Falls
community. All agree that Judge Restaino's removal from the bench would be a tremendous loss to
the community as well as to the Niagara Falls City Court.
For example, amici include Jeffrey Smith, Project Director for the New York State gth
Judicial District, Office of Court Administration. Mr. Smith administers all "Specialty Courts"
including all Domestic Violence Courts in the gth Judicial District. Prior to Judge Restaino's
suspension, Mr. Smith worked closely with Judge Restaino for 6 years.
Additionally, amici include Family and Children's Service of Niagara, Inc. The
organization is a tax exempt charity, which provides services for domestic violence victims, as well
as services for runaway and homeless youth. In concert with the Family and Children's Service of
Niagara, Inc., Judge Restaino was a founding partner of the Adult and Teen Opportunities for Non-
Violent Education Program (ATONE). This program developed from Judge Restaino's idea that it
would be more appropriate to treat adolescents who had observable mental health and anger
management issues, for which they were charged in criminal court, in a separate court. Through
Judge Restaino's leadership, the program was tremendously effective in treating adolescents with
anger management issues.
3
In addition, amici include Jamie Marcolini, an employee with Horizon Health Services who
helped to manage the Domestic Violence Court during the last year that Judge Restaino presided
over the Court. He met with Judge Restaino on a regular weekly basis and reviewed virtually all of
the domestic violence files with him, as well as observed him in Court.
Finally, amici include individuals from the Niagara County Department of Social Services
who worked with Judge Restaino for years in the Niagara Falls City Court, including its Domestic
Violence Court. Elizabeth Brady, for example, has been employed with the Niagara County
Department of Social Services, Children's Services section for approximately 30 years and has been
a supervisor for the past 20 years. Mrs. Brady worked closely with Judge Restaino on a regular,
often day-to-day basis.
Amici unanimously agree as specialty court professionals that Judge Restaino was an
exemplary judge and that his removal from the bench would be a great loss to the Niagara Falls City
Court, its specialty courts in particular.
4
ARGUMENT
JUDGE RESTAINO SHOULD NOT BE REMOVED FROM THE BENCH
I. THE DETERMINATION BY THE NEW YORK STATE

As noted above, on November 13, 2007, the New York State Commission on Judicial
Conduct issued a determination that the appropriate remedy was Judge Restaino's removal from the
bench. After reviewing what was, in large measure, the uncontradicted background of the case, the
Commission, without adequately considering other factors including mitigation, reasoned that Judge
Restaino "violated the trust of the defendants and of the public at large, who place their confidence
in the administration of justice by the court." (Determination, Record on Review ("R.") at 15).
Noting that the Domestic Violence Court places "trust and personal accountability" of paramount
importance, the Commission found that "Judge Restaino's own irresponsible behavior provided a
poor example of such attributes."
Ultimately, the Commission stated:
Simply stated, we find no mitigating circumstances in the record

before us. Respondent characterizes his behavior as aberrational and
attributes it, at least in part, to certain stresses in his personal life.
Such an explanation cannot excuse his behavior.
(Determination, R. at 19).
Sadly, while the Commission recognized that "presiding in a busy court presents every
judge with significant challenges on a daily basis, and every judge is obliged to set aside his or her
personal problems upon entering the Courtroom and to be an exemplar of dignity, courtesy and
patience" (determination, R. 19), the Commission failed to recognize that Judge Restaino's conduct
on the day in question was an aberrational act in an otherwise exemplary judicial and professional
career.
5
Ultimately, the Commission concluded that Judge Restaino's act warranted the sanction of
removal "notwithstanding his previously unblemished record on the bench and the testimony as to
his character and reputation." (Determination, R. at 19) (Citations omitted).
In a concurring opinion, Richard D. Emery, a Commission member, recognized that it is
apparent from the record that Judge Restaino's conduct was "unlikely to be repeated." (Concurring
opinion, R. at 22). However, Mr. Emery concluded that because of the Court of Appeals' previous
decision In Matter ofBlackbume, 7 NY3d 213 (2006) he felt "bound by the Blackbume decision,
with which I do not agree .... " (Concurring opinion, R. at 23). Finally, in a dissenting opinion filed
by Chairman Raoul Felder, Chairman Felder noted Judge Restaino's "long period of personal stress,
while presiding in a domestic violence part.... " (Dissenting opinion, R. at24). After reviewing some
of the character testimony presented during the hearing, Chairman Felder found that Judge
Restaino' s conduct in the instant case "was a single res gestae - two hours of viral lunacy out of a
person's entire professional life." (Dissenting opinion, R. at 26). Contrasting Judge Restaino's case
:from Matter ofBlackbume, supra, Chairman Felder noted that in Blackbume, the judge acted
"purely out of personal pique, based on incomplete information, and further, she persisted in the
face of contrary advice :from experienced court personnel." Contrasting Blackbume with the instant
case, Chairman Felder found that "a distinguished former judge who heard the testimony, concluded
that the respondent, who testified at great length, appeared to be sincerely remorseful. The Referee
also commented on the impressive testimony of a psychologist and psychiatrist who gave
persuasive testimony as to the unlikelihood of a recurrence." (Dissenting opinion, R. at 27).
Recognizing that a public censure would have a "deleterious effect" on Judge Restaino's
career, Chairman Felder concluded:
Having listened to the judge, and having considered the matter

carefully, I cannot find it within myself to destroy this individual's
6
professional life over this regrettable episode. The record shows
without contradiction that he is a decent, humble, dedicated
individual who is well-liked and respected."
(Dissenting opinion, R. at 30). Indeed, Chairman Felder recognized that even one of
the incarcerated individuals had testified that Judge Restaino had been a "positive
influence and is liked."
The dissent thus found that the record was uncontroverted that Judge Restaino 's conduct
was a "profound aberration in an otherwise unblemished career." All amici agree with his
conclusions.
II. JUDGE REST AINO IS AN ASSET TO THE BENCH AND AN EXEMPLARY

SPECIALTY COURT JUDGE WHO IS FIT TO SERVE AND WHOSE
REMOVAL WOULD IDNDER THE ADMINISTRATION OF NIAGARA
FALLS CITY COURT
It is clear that the New York State Court of Appeals has "broad plenary power to determine
the facts and appropriate sanction in the exercise of its own sound discretion and judgment." Matter
of Quinn, 54 NY2d 386,391 (1981). As such, amici respectfully urge this Court to consider the full
record before it which the Commission's majority in its determination failed to do. Significantly,
amici believe that at most, Judge Restaino's misconduct amounts to an aberration from an otherwise
exemplary career both while he served on the bench and while he was a practicing attorney.
Ironically, the Commission's determination ignores the goal of Judge Restaino's own
Domestic Violence Court. There, individuals coming before the Criminal Court have the
opportunity to involve themselves in significant counseling in an effort to allow them to regain their
positive roles in society. Judge Restaino should be given the same chance.
7
Here, Judge Restaino underwent significant counseling after the incident took place. As
well, as Commissioner Felder found in his dissent and Mr. Emery noted in his concurring opinion,
the medical evidence indicates that there is little or no chance that Judge Restaino's prior conduct
would ever again occur.
In this case, the opinions provided by the amici clearly indicate that Judge Restaino's loss to
the Court would be detrimental. The Judge worked tirelessly to ensure that the programs
succeeded. Sadly, his efforts worked to his own detriment which, no doubt, led to his skewed
judgment. However, Judge Restaino has come to understand the need for balance in his life and
without doubt his participation in personal counseling has now served him well.
There is little doubt but that Judge Restaino' s Domestic Violence Court was a model for the
entire State of New York. The Court's successes in that regard were legendary throughout the
Niagara Falls community. He was known as "firm yet fair," qualities always necessary for a judge
in a Specialty Court. Moreover, Judge Restaino spent endless hours preparing for the cases coming
before him, reviewing files and speaking at length to the administrators and providers. To a person,
all of the individuals knowledgeable of the Niagara Falls Domestic Violence Court and Judge
Restaino's unique ability to run the Court conclude that he was more than qualified for the job.
Without a doubt, if Judge Restaino is allowed to return to the bench he will be a shining example
that one's fall from grace followed by diligent efforts to redeem oneself can lead to a better life.
The administrators and providers who join in this brief have unanimously concluded that
notwithstanding Judge Restaino's inappropriate conduct at issue, he remains well qualified and
should be returned to the bench as quickly as possible. They have no doubt that he is fit to return as
a City Court Judge.
8
In requesting that this Court choose the remedy of censure, amici are not unmindful of what
occurred in the past. However, given the totality of all of the circumstances they believe that
removal is unwarranted. All amici have worked closely with Judge Restaino and firmly believe in
the success of the Criminal and Domestic Violence Courts. They have concluded not only that
Judge Restaino is fit to serve but that he has the specific qualifications to do the job in a qualified
manner.
The individuals and organization who have joined in this amici brief unanimously concur
that for many years Judge Restaino's demeanor served the Domestic Violence and criminal courts
well. Indeed, his dedication to the Domestic Violence Court and ATONE program was
unparalleled. Hundreds of individuals with little hope for their future were led in the right direction
and now have reassumed their status as law-abiding, hardworking individuals. To a person, all of
the amici agree that Judge Restaino's loss to the Niagara Falls Courts would be irreparable.
It is unlikely that anyone is in a better position than arnici to know Judge Restaino's value to
the Specialty Courts which are so important in today's criminal justice system. With the proper
direction, parties are taken from a life of despair, are counseled and ultimately are allowed to
redirect their lives. Judge Restaino's incredible dedication to those individuals should not be
forgotten. Likewise, Judge Restaino's unique abilities in helping those individuals reach those goals
should be allowed to continue.
It is respectfully submitted that the unique perspective and experience provided by amici is
considered by this Court in rendering its decision. The providers and administrators who join in this
brief and its ultimate conclusion are, perhaps, in the best position to understand Judge Restaino's
ability and fitness to continue to serve his community.
9
There can be no doubt but that Judge Restaino is sincerely contrite for what he has done. In
admitting his malfeasance Judge Restaino has clearly shown his ability to continue his tenure. As
this Court held in In re Bauer, 3 NY3d 158 (2004):
Petitioner's apparent lack of contrition is telling. In some instances,

contrition may be insincere, and in others no amount of it will
override inexcusable conduct. Here, while petitioner's conduct was
far from uniformly fowl, his utter failure to recognize and admit
wrongdoing strongly suggests that, if he is allowed to continue on the
bench, we may expect more of the same.
In Judge Restaino' s case, the converse is true. This Court has had the benefit of Judge
Restaino 's testimony and has seen how remorseful he is. As well, experts have testified that it is
extremely unlikely that such misconduct on Judge Restaino's part would ever occur again.
Amici were regularly in the courtroom as Judge Restaino ran the Domestic Violence and
adjunct courts. He was considered patient, diligent, fair and dedicated to the goals of the Court.
Judge Restaino's continued performance in judicial office does not "threaten the proper
administrations of justice" nor do amici believe that Judge Restaino's singular act, although serious,
has "irredeemably damaged public confidence in his own impartiality or that of the State judiciary
as a whole." In re Watson, 100 NY 2d 290, 304 (2003).
Judge Restaino has shown himself fit for continued service to the bench in the Niagara Falls
City Court. In the end, Judge Restaino has served the Court well, has candidly accepted
responsibility for his acts and is now well equipped to resume his place on the bench. The fact that
Judge Restaino was suffering from personal psychological pressure has been addressed, and doctors
who testified at his hearing concluded that his previous conduct is unlikely to reoccur.
Under the circumstances, therefore, amici respectfully submit that Judge Restaino should
not be removed from the bench and that the sanction of censure should be imposed.
10
CONCLUSION
By requesting a sanction of censure as opposed to removal, amici are not asking this Court
to forgive Judge Restaino for his acts. On the contrary, amici respectfully ask this Court to consider
those indiscrete acts in light of Judge Restaino' s exemplary history on the bench, in particular his
time as a judge in the Domestic Violence Court, and in light of what he again can do in the future
for the Niagara Falls community.
The individuals and organizations represented in this amici curiae brief all hope for the day
when Judge Restaino will be returned to the bench where he has served his community with such
distinction. Consequently, it is respectfully urged that this Court impose the sanction of censure.

February 5, 2008
H-~ ~.,;J~Pn~
Herbert L. Greenman
Attorney for Amici
42 Delaware Ave.
(716)849-1333
11
Lipsitz Green Scime CambriaLLP
Attorneys at Law 42 Delaware Avenue, Suite 120, Buffalo, New York 14202-3924 P 716 849 1333 F 716 855 1580 !Not for Service) www.lglaw.com
Paul J. Cambria, Jr. 3

James T. Scime
Herbert L. Greenman
Patrick C. O'Reilly
VIA OVERNIGHT
Michael Schiavone
Laraine Kelley
UPS
William M. Feigenbaum
Joseph J. Gumkowski
Richard P. Weisbeck, Jr.
Mark L. Stulmaker
February 21, 2008
Barry Nelson Covert
Christopher S. Mattingly
Robert L. Boreanaz
Thomas M. Mercure
John A. Collins
George E. Riedel, Jr. 7
Court of Appeals
Michael P. Stuermer
Jeffrey F. Reina
3
Sharon M. Heim
Cherie L. Peterson
20 Eagle Street
Paul J. Cieslik
Michael R. Weremblewski
Gregory P. Krull
Michele A. Smith
Bridget M. O'Connell
Michael S. Dea! ~
ATTN: Suzanne Aiardo, Esq.
Joseph J. Manna
Philip Scaffidi
Robert E. Ziske
Kevin W. Hourihan
RE: In the Matter of Robert M. Restaino, A Judge of the Niagara Falls City Court,
Thomas C. Burnham
William P. Moore
Niagara County vs. New York State Commission on Judicial Conduct
David C. Zimmerman >
Karen B. Feger
Patrick B. Shanahan Dear Judge Cohen:
Jonathan W. Brown 3
Teresa A. Bailey
John M. Uchtenthal
Racheal C. Irizarry 2 Enclosed herewith, please find an original and 24 copies of brief with respect to the
Andrew D. Kehrer
Joseph M. Tripi above referenced matter per order dated February 14, 2008 from Your Honor.
Daniel M. Killelea
Patrick J. Mackey
OF COUNSEL I have also served 2 copies to Mr. Terrence M. Connors, Esq., Connors and Vilardo, LLP,
Richard Lipsitz
Carl A Green Attorney for Petitioner Robert M. Restaino and also Robert H. Tembeckjian, Esq.,
Eugene W. Salisbury 1
Counsel to the State Commission on Judicial Conduct, John J. Postel, Esq., of Counsel.
SPECIAL COUNSEL
James W. Kirkpatrick
Roger W. Wilcox, Jr.
Denis A Scinta I thank you for your courtesy in this regard.
David G. Henry
Richard D. Furlong
Scott M. Schwartz
John P. Hains 2 Very truly yours,
Diane M. Roberts
LICENSED WORKERS'
COMPENSATION
REPRESENTATIVE
;/a;J/7At-e-4;
Keith T. Williams
Patricia N. Lyman
Seymour L Schuller
1951-1988
Evan E. James By: Herbert L. Greenman

1955-1989
Also admitted Distdct of Colum!!LG/emj

Also
Also
admitted
admitted ~~;;~;ni, Enclosures
Also admitted Ohio
Also admitted Illinois
BUFFALO AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLY HILLS ""C,'"'Ji
Lipsitz Green Scime Can1briaLLP
cc: Terrence M. Connors, Esq. (Via Regular Mail) (two copies of brief attached)
420 Main Street
716-852-5533
, /Robert H. Tembeckjian, Esq. (Via Overnight, UPS) (two copies of brief attached
V Counsel to the State Commission on Judicial Conduct
61 Broadway
212-809-0566
BUFFALO AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLY HILLS

COURT OF APPEALS
STATE OF NEW YORK
ROBERTM. RESTAINO
a Judge of the City Court of Niagara Falls, Niagara County,
Petitioner,
-vs-
Respondent.
FAMILY AND CHILDREN'S SERVICE OF NIAGARA, INC.
ELIZABETH BRADY, DEPARTMENT OF SOCIAL SERVICES
JENNIFER HALL, DEPARTMENT OF SOCIAL SERVICES
Herbert L. Greenman
(716) 849-1333
TABLE OF CONTENTS
Page
Preliminary Statement. ............................................................. 1
Interests of the Amicus Curiae .................................................... 3
Argument/Point One ............................................................... 5
JUDGE RESTAINO SHOULD NOT BE REMOVED

FROM THE BENCH
I. THE DETERMINATION BY THE NEW YORK

STATE COMMISSION ON JUDICIAL CONDUCT
Argument/Point Two ............................................................... 7
II. JUDGE REST AINO IS AN ASSET TO THE

BENCH AND AN EXEMPLARY SPECIALTY
COURT JUDGE WHO IS FIT TO SERVE AND
WHOSE REMOVAL WOULD HINDER THE
ADMINSTRATION OF NIAGARA FALLS CITY
COURT
Conclusion ........................................................................... 11
Page
In Re Blackbume, 7 NY3d 213 (2006) ...................................... 6
Matter of Quinn, 54 NY2d 386, 391(1981) ................................. 7
In Re Bauer, 3 NY3d 158 (2004) ............................................. 10
In Re Watson, 100 NY2d 290, 304 (2003) ................................. 10
11
This is an appeal from a determination of the New York State Commission on Judicial
Conduct made pursuant to Section 44, subdivision 4 of the New York State Judiciary Law on
November 13, 2007. Counsel has filed a Notice of Motion and Affidavit in support of a motion to
submit a brief as amici curiae on behalf of Petitioner, Robert M. Restaino, relative to the above
captioned matter.
As indicated in counsel's notice of motion, the proposed amici include a broad range of
domestic violence court providers who have had many years of experience working with and
observing Judge Restaino, specifically when he presided over Domestic Violence Court. The amici
include:
• Family and Children's Service of Niagara, Inc., Kenneth Sass, President and CEO,
and Bernard Huber, Director of Family Counseling;
• Elizabeth Brady, a supervisor for over 20 years with the Niagara County Department
of Social Services, Children's Services; and
• Jennifer Hall, a senior caseworker with the Niagara County Department of Social
Services (Department of Permanency and Planning).
All amici have particularized and specialized knowledge relative to Judge Robert M. Restaino's
fitness to continue to serve as a Niagara Falls City Court Judge and each have a unique perspective
as to the issues raised in his appeal. Accordingly, amici respectfully submit that they can provide
this Court with special assistance in reviewing this matter.
Amici are aware that a hearing was held in November, 2006 and a report was filed by the
referee on March 30, 2007. Subsequently, the parties submitted briefs with respect to the referee's
report. In their briefs, counsel to the Commission recommended the sanction of removal and
1
counsel for petitioner recommended censure. After oral argument on September 19, 2007, the
Commission determined that the appropriate sanction was removal from the bench.
All of the amici have personal knowledge relative to Judge Restaino's background and
performance while a Niagara Falls City Court Judge. Indeed, all arnici have specific information
relative to Judge Restaino's perfonnance not only while he presided in the Niagara Falls Criminal
Court but, as well, his performance in presiding in the Niagara Falls City Court, Domestic Violence
Court. Some of the arnici have personal knowledge of Judge Restaino's performance while sitting
as an acting Niagara County Fan1ily Court Judge as well.
2
INTERESTS OF THE AMICI
As noted above, amici include a broad range of domestic violence court providers who have
had many years of experience working with and observing Judge Restaino. They unanimously
agree that Judge Restaino's aberrant act should not lead to his removal from the bench. Amici have
long-term experience with Judge Restaino, having worked closely with him throughout his years as
a Niagara Falls City Court Judge and acting Niagara County Family Court Judge. They are also
familiar with his reputation throughout the entire Niagara Falls community. All agree that Judge
Restaino' s removal from the bench would be a tremendous loss to the community as well as to the
Niagara Falls City Court.
Additionally, amici include Family and Children's Service of Niagara, Inc. The
organization is a tax exempt charity, which provides services for domestic violence victims, as well
as services for runaway and homeless youth. In concert with the Family and Children's Service of
Niagara, Inc., Judge Restaino was a founding partner of the Adult and Teen Opportunities for Non-
Violent Education Program (ATONE). This program developed from Judge Restaino's idea that it
would be more appropriate to treat adolescents who had observable mental health and anger
management issues, for which they were charged in criminal court, in a separate court. Through
Judge Restaino's leadership, the program was tremendously effective in treating adolescents with
anger management issues.
Finally, amici include individuals from the Niagara County Department of Social Services
who worked with Judge Restaino for years in the Niagara Falls City Court, including its Domestic
Violence Court. Elizabeth Brady, for example, has been employed with the Niagara County
Department of Social Services, Children's Services section for approximately 30 years and has been
3
a supervisor for the past 20 years. Mrs. Brady worked closely with Judge Restaino on a regular,
often day-to-day basis.
Amici unanimously agree as specialty court professionals that Judge Restaino was an
exemplary judge and that his removal from the bench would be a great loss to the Niagara Falls City
Court, its specialty courts in particular.
4
ARGUMENT
I. THE DETERMINATION BY THE NEW YORK STATE

As noted above, on November 13, 2007, the New York State Commission on Judicial
Conduct issued a determination that the appropriate remedy was Judge Restaino's removal from the
bench. After reviewing what was, in large measure, the uncontradicted background of the case, the
Commission, without adequately considering other factors including mitigation, reasoned that Judge
Restaino "violated the trust of the defendants and of the public at large, who place their confidence
in the administration of justice by the court." (Determination, Record on Review ("R.") at 15).
Noting that the Domestic Violence Court places "trust and personal accountability" of paramount
importance, the Commission found that "Judge Restaino' s own irresponsible behavior provided a
poor example of such attributes."
Ultimately, the Commission stated:
Simply stated, we find no mitigating circumstances in the record

before us. Respondent characterizes his behavior as aberrational and
attributes it, at least in part, to certain stresses in his personal life.
Such an explanation caimot excuse his behavior.
(Determination, R. at 19).
Sadly, while the Commission recognized that "presiding in a busy court presents every
judge with significant challenges on a daily basis, and every judge is obliged to set aside his or her
personal problems upon entering the Courtroom and to be an exemplar of dignity, courtesy and
patience" (determination, R. 19), the Commission failed to recognize that Judge Restaino's conduct
on the day in question was an aberrational act in an otherwise exemplary judicial and professional
career.
5
Ultimately, the Conm1ission concluded that Judge Restaino's act warranted the sanction of
removal "notwithstanding his previously unblemished record on the bench and the testimony as to
his character and reputation." (Determination, R. at 19) (Citations omitted).
In a concurring opinion, Richard D. Emery, a Commission member, recognized that it is
apparent from the record that Judge Restaino's conduct was "unlikely to be repeated." (Concurring
opinion, R. at 22). However, Mr. Emery concluded that because of the Court of Appeals' previous
decision In Matter ofBlackburne, 7 NY3d 213 (2006) he felt "bound by the Blackbume decision,
with which I do not agree .... " (Concurring opinion, R. at 23). Finally, in a dissenting opinion filed
by Chairman Raoul Felder, Chairman Felder noted Judge Restaino's "long period of personal stress,
while presiding in a domestic violence part .... " (Dissenting opinion, R. at24). After reviewing some
of the character testimony presented during the hearing, Chairman Felder found that Judge
Restaino' s conduct in the instant case "was a single res gestae - two hours of viral lunacy out of a
person's entire professional life." (Dissenting opinion, R. at 26). Contrasting Judge Restaino's case
from Matter of Blackbume, supra, Chairman Felder noted that in Blackbume, the judge acted
"purely out of personal pique, based on incomplete information, and further, she persisted in the
face of contrary advice from experienced court persmmel." Contrasting Blackbume with the instant
case, Chairman Felder found that "a distinguished former judge who heard the testimony, concluded
that the respondent, who testified at great length, appeared to be sincerely remorseful. The Referee
also commented on the impressive testimony of a psychologist and psychiatrist who gave
persuasive testimony as to the unlikelihood of a recurrence." (Dissenting opinion, R. at 27).
Recognizing that a public censure would have a "deleterious effect" on Judge Restaino' s
career, Chairman Felder concluded:
Having listened to the judge, and having considered the matter

carefully, I cannot find it within myself to destroy this individual's
6
professional life over th.is regrettable episode. The record shows
without contradiction that he is a decent, humble, dedicated
individual who is well-liked and respected."
(Dissenting opinion, R. at 30). Indeed, Chainnan Felder recognized that even one of
the incarcerated individuals had testified that Judge Restaino had been a "positive
influence and is liked."
The dissent thus found that the record was uncontroverted that Judge Restaino's conduct
was a "profound aberration in an otherwise unblemished career." All arnici agree with his
conclusions.
II. JUDGE RESTAINO IS AN ASSET TO THE BENCH AND AN EXEMPLARY

SPECIALTY COURT JUDGE WHO IS FIT TO SERVE AND WHOSE
REMOVAL WOULD HINDER THE ADMINISTRATION OF NIAGARA
FALLS CITY COURT
It is clear that the New York State Court of Appeals has "broad plenary power to determine
the facts and appropriate sanction in the exercise of its own sound discretion and judgment." Matter
of Quinn, 54 NY2d 386, 391 (1981). As such, amici respectfully urge this Court to consider the full
record before it which the Commission's majority in its determination failed to do. Significantly,
amici believe that at most, Judge Restaino's misconduct amounts to an aberration from an otherwise
exemplary career both while he served on the bench and while he was a practicing attorney.
Ironically, the Commission's detennination ignores the goal of Judge Restaino' s own
Domestic Violence Court. There, individuals coming before the Criminal Court have the
opportunity to involve themselves in significant counseling in an effort to allow them to regain their
positive roles in society. Judge Restaino should be given the same chance.
7
Here, Judge Restaino underwent significant counseling after the incident took place. As
well, as Commissioner Felder found in his dissent and Mr. Emery noted in his concurring opinion,
the medical evidence indicates that there is little or no chance that Judge Restaino's prior conduct
would ever again occur.
In this case, the opinions provided by the amici clearly indicate that Judge Restaino's loss to
the Court would be detrimental. The Judge worked tirelessly to ensure that the programs
succeeded. Sadly, his efforts worked to his own detriment which, no doubt, led to his skewed
judgment. However, Judge Restaino has come to understand the need for balance in his life and
without doubt his participation in personal counseling has now served him well.
There is little doubt but that Judge Restaino' s Domestic Violence Court was a model for the
entire State of New York. The Court's successes in that regard were legendary throughout the
Niagara Falls community. He was known as "firm yet fair," qualities always necessary for a judge
in a Specialty Court. Moreover, Judge Restaino spent endless hours preparing for the cases coming
before him, reviewing files and speaking at length to the administrators and providers. To a person,
all of the individuals knowledgeable of the Niagara Falls Domestic Violence Court and Judge
Restaino's unique ability to run the Court conclude that he was more than qualified for the job.
Without a doubt, if Judge Restaino is allowed to return to the bench he will be a shining example
that one's fall from grace followed by diligent efforts to redeem oneself can lead to a better life.
The providers who join in this brief have unanimously concluded that notwithstanding
Judge Restaino 's inappropriate conduct at issue, he remains well qualified and should be returned to
the bench as quickly as possible. They have no doubt that he is fit to return as a City Court Judge.
In requesting that this Court choose the remedy of censure, amici are not unmindful of what
occurred in the past. However, given the totality of all of the circumstances they believe that
8
removal is unwarranted. All amici have worked closely with Judge Restaino and firmly believe in
the success of the Criminal and Domestic Violence Courts. They have concluded not only that
Judge Restaino is fit to serve but that he has the specific qualifications to do the job in a qualified
mam1er.
The individuals and organization who have joined in this amici brief unanimously concur
that for many years Judge Restaino' s demeanor served the Domestic Violence and criminal courts
well. Indeed, his dedication to the Domestic Violence Court and ATONE program was
unparalleled. Hundreds of individuals with little hope for their future were led in the right direction
and now have reassumed their status as law-abiding, hardworking individuals. To a person, all of
the amici agree that Judge Restaino's loss to the Niagara Falls Courts would be irreparable.
It is unlikely that anyone is in a better position than amici to know Judge Restaino' s value to
the Specialty Courts which are so important in today's criminal justice system. With the proper
direction, parties are taken from a life of despair, are counseled and ultimately are allowed to
redirect their lives. Judge Restaino's incredible dedication to those individuals should not be
forgotten. Likewise, Judge Restaino's unique abilities in helping those individuals reach those goals
should be allowed to continue.
It is respectfully submitted that the unique perspective and experience provided by amici is
considered by this Court in rende1ing its decision. The providers who join in this brief and its
ultimate conclusion are, perhaps, in the best position to understand Judge Restaino's ability and
fitness to continue to serve his community.
There can be no doubt but that Judge Restaino is sincerely contrite for what he has done. In
admitting his malfeasance Judge Restaino has clearly shown his ability to continue his tenure. As
this Court held in In re Bauer, 3 NY3d 158 (2004):
9
Petitioner's apparent lack of contrition is telling. In some instances,
contrition may be insincere, and in others no amount of it will
override inexcusable conduct. Here, while petitioner's conduct was
far from uniformly fowl, his utter failure to recognize and admit
wrongdoing strongly suggests that, ifhe is allowed to continue on the
bench, we may expect more of the same.
In Judge Restaino's case, the converse is true. This Court has had the benefit of Judge
Restaino' s testimony and has seen how remorseful he is. As well, experts have testified that it is
extremely unlikely that such misconduct on Judge Restaino's part would ever occur again.
Amici were regularly in the courtroom as Judge Restaino ran the Domestic Violence and
adjunct courts. He was considered patient, diligent, fair and dedicated to the goals of the Court.
Judge Restaino's continued performance in judicial office does not "threaten the proper
administrations of justice" nor do amici believe that Judge Restaino's singular act, although serious,
has "irredeemably damaged public confidence in his own impartiality or that of the State judiciary
as a whole." In re Watson, 100 NY 2d 290, 304 (2003).
Judge Restaino has shown himself fit for continued service to the bench in the Niagara Falls
City Comi. In the end, Judge Restaino has served the Court well, has candidly accepted
responsibility for his acts and is now well equipped to resume his place on the bench. The fact that
Judge Restaino was suffering from personal psychological pressure has been addressed, and doctors
who testified at his hearing concluded that his previous conduct is unlikely to reoccur.
Under the circumstances, therefore, arnici respectfully submit that Judge Restaino should
not be removed from the bench and that the sanction of censure should be imposed.
10
CONCLUSION
By requesting a sanction of censure as opposed to removal, amici are not asking this Court
to forgive Judge Restaino for his acts. On the contrary, arnici respectfully ask this Court to consider
those indiscrete acts in light of Judge Restaino's exemplary history on the bench, in particular his
time as a judge in the Domestic Violence Court, and in light of what he again can do in the future
for the Niagara Falls community.
The individuals and organizations represented in this amici curiae brief all hope for the day
when Judge Restaino will be returned to the bench where he has served his community with such
distinction. Consequently, it is respectfully urged that this Court impose the sanction of censure.

February 21, 2008
\~o~;f~
Herbert L. Greenman
Attorney for Amici
42 Delaware Ave.
(716)849-1333
11
STATE OF NEW YORK
COURT OF APPEALS

A Judge of the Niagara Falls City Comi,
Niagara County
Petitioner
vs.
NEW YORK ST ATE COMMISSION ON

JUDICIAL CONDUCT,
Respondent.
The undersigned hereby certifies that on the 21st day of February, 2008, I caused a true and
accurate copy of the attached Notice of Motion and Affirmation in Support of Motion to Appear as
Amici Curiae with proposed brief to be served via overnight delivery on each of the following:

Court of Appeals
Comi of Appeals Hall
20 Eagle Street
Ten-ence M. Connors, Esq.

C01mors and Vilardo, LLP
420 Main Street
716-852-5533

61 Broadway
212-809-0566 /}
j /-· //0,,,
nj
\
"'"" .....AA/~
12
£~&~
~· Jt::w_ ?!/~ /P.!tJ?-/tJ.9§
February 5, 2008
Anthony D. Parone, Esq.

73 0 Main Street
Niagara Falls, NY 14301-1787
Re: 1\110 Honorable Robert M. Restaino

Motion No. 08/178
Dear Mr. Parone:
Your motion for amicus relief in the above matter has been received. The motion
is noticed for a return date outside the limits set by CPLR 5516 (see also Court of
Appeals Rules of Practice 500.21[a]). To comply with the applicable statutory and rules
requirements, the return date will be February 19, 2008.
Any opposing papers from respondents must be served and received by this office
no later than February 19, 2008.
Very truly yours,
Heather Davis
Chief Motion Clerk
HD:mg
STATE OF NEW YORK
COURT OF APPEALS

Niagara County
Petitioner
vs.

JUDICIAL CONDUCT,
Respondent.
The undersigned hereby certifies that on the 61h day of February, 2008, I caused a true and
accurate copy of the attached Notice of Motion and Affirmation in Support of Motion to Appear as
Amici Curiae with proposed brief to be served via overnight delivery on each of the following:

Court of Appeals
20 Eagle Street

420 Main Street
716-852-5533

61 Broadway
212-809-0566 .},fl}J
12
STATE OF NEW YORK
Qtnurt nf Apptaln
Niagara County,
Petitioner,
vs.

Respondent.

AMICUS CURIAE IN THE COURT OF APPEALS and
AFFIRMATION IN SUPPORT OF MOTION
JOHN J. DELMONTE, ESQ.

Attorney for Amicus Curiae
Daniel T. Lukasik, Esq.,
As founder and Administrator of
Lawyers with Depression
2706 Pine A venue
P.O. Box 2146 NMS
Telephone: (716) 282-4511
Facsimile: (716) 282-3289
COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
ROBERT M. RES1_'AINO,
a Judge of the Niagara Falls City Court
of Niagara County,
Petitioner,
-against-

JUDICIAL CONDUCT,
Respondent.
NOTICE OF MOTION AND AFFIRMATION IN SUPPORT

OF MOTION TO APPEAR AS AMICUS CURIAE
PLEASE TAKE NOTICE, that upon the annexed affirmation of JOHN J. DELMONTE,
ESQ., dated February 5, 2008, the undersigned will move this Court, upon these papers and
without oral argument, at a regular Motion Term of this Court, to be held on February 11, 2008,
for an order pursuant to 22 N.Y.C.R.R. §§530.7(c) and 500.l l(f): (1) granting Daniel T.
Lukasik, Esq., as founder and administrator of Lawyers With Depression and counselor to
judges and attorneys regarding depression, permission to appear as amicus curiae in the above-
captioned matter, and (2) accepting the brief that has been filed and served along with this
motion.

February 5, 2008
Niagara Falls, NY
(716) 282-4511
-I -
TO: Hon. Stuart Cohen, Clerk
Court of Appeals
20 Eagle Street
Albany, NY 12207
Attn: Suzanne Aiardo, Esq.

424 Main Street
Buffalo, NY 14202

61 Broadway
New York, NY I 0006
-2-
COURT OF APPEALS
STATE OF NEW YORK
In the Matter of
ROBERT M. RESTAINO,
of Niagara County,
Petitioner,
-against-

JUDICIAL CONDUCT,
Respondent.
JOHN J. DELMONTE, ESQ., hereby affirms, under penalty of perjury:
I. That I am an attorney duly licensed to practice law in the State of New York and
am the attorney for Daniel Lukasik, Esq., founder and administrator of
Lawyers WithDepression.com and counselor to judges and attorneys who suffer from
depression. I make this affirmation in support of a motion, pursuant to 22 N.Y.C.R.R.
§§530.7(c) and 500.1 l(f), f~~ an order granting permission to appear as amicus curiae in the
above-captioned appeal.
2. Petitioner brings this appeal pursuant to Judiciary Law§ 44(7) seeking review of
a determination of the New York State Commission on Judicial Conduct (the "Commission").
The Commission found that Petitioner violated provisions of the Rules Governing Judicial
Conduct, 22 N.Y.C.R.R. Part 100 (the "Canons") and determined the sanction for such
violation to be removal of Petitioner from his public office as a judge of the Niagara Falls City
Court.
- 1-
3. I have read the Commission's determination and am familiar with the facts and
legal issues involved in this case. I have also spoken with Daniel T. Lukasik, founder and
administrator of Lawyers With Depression and counselor to judges and attorneys who suffer
with depression, about the issues sought to be raised for the Court's consideration in reviewing
this matter.
4. Mr. Lukasik is an attorney in Buffalo, New York who has been at the forefront
of bringing attention to the issue of depression in the legal profession and assisting lawyers and
judges who suffer from depression. Mr. Lukasik founded and administers Lawyers With
Depression, a website found at LawyersWithDepression.com, which provides a wealth of
information regarding the issue of depression in the legal profession. Mr. Lukasik also
personally counsels judges and attorneys in individual and group settings to assist them in
fulfilling their professional responsibilities and leading full lives despite suffering from
depression. Mr. Lukasik's groundbreaking work has been nationally recognized.
5. Mr. Lukasik is also the founder and chair of the Committee to Assist Lawyers
with Depression of the Bar Association of Erie County, which provides intervention, treatment
and assistance to the Bar's members, including the judiciary, who experience personal and/or
professional stresses resulting in substance abuse and/or emotional disorders, particularly
depression, which is the primary focus of the Committee's mission. Mr. Lukasik was recently
recognized for his work by the New York State Bar Association (State Conference of Bar
Leaders) with its Certificate of Merit at this year's annual meeting of the New York State Bar
Association.
6. Upon information and belief, Petitioner herein has sought and utilized the
services of the analogous state-wide program which was in existence at the time of the incident
-2-
in question, the Lawyers Assistance Program of the New York State Bar Association, in
addition to other professional counseling services, to combat the effects of depression in
connection with Petitioner's ability to properly perform his duties as a judge.
7. Amicus verily believe it is critical for the Court to review and consider
Petitioner's depression in evaluating his conduct on March 11, 2005 and his self-driven
response(s) to address said condition in determining the outcome of this appeal.
8. Specifically, Amicus strongly believe that Petitioner's aberrant and isolated
behavior on the date of his acknowledged misconduct represents a tragic case oflong-
simmering and untreated depression which "boiled-over" and manifested itself in one horrific
display of emotional aggression that does not reflect the true and full character or capability of
the Petitioner as a judge and, more importantly from the standpoint of Amicus 's core mission
and purpose, a classic case of affording an emotional sufferer with the chance to make good,
find redemption, and go forward in his profession with positive improvement and full
functionality.
9. It is Amicus 's desire to present to the Court the complete picture of Petitioner's
conduct and the underlying facts and circumstances that reasonably explain the same. In that
regard, Amicus feel that it is important to elucidate on the psychological concepts that may help
the Court to understand and evaluate Petitioner's behavior, including but not limited to the
emerging psychological study of "vicarious trauma" experienced by legal professionals,
including judges, who are routinely exposed to domestic violence types of cases on a daily
basis.
10. Amicus is committed to the goals of treatment and rehabilitation in addressing
the professional challenges which members of the legal community face leading up to episodes
-3-
of depression and verily believe that the case of Petitioner presents a classic instance of a (and
has been professionally opined as a) singular episode of uncharacteristic behavior caused by
depression which is now being managed, and according to the doctors who have treated
Petitioner and testified on his behalf, is not likely to occur again.
11. It is respectfully submitted that the Court needs to hear Amicus 's points of
concern which are raised in the accompanying brief to fairly evaluate this matter and the
Petitioner's future especially in light of the Commission's nugatory and dismissive treatment of
the Petitioner's medically established depression as mitigation of his behavior on March 11,
2005, its failure to fully consider the emotional underpinnings for said behavior, and most
importantly, the Commission's apparent disregard for the medical opinions rendered which
established that no recurrence is likely to occur.
WHEREFORE, it is respectfully requested that this Court enter an order (1) granting
permission to appear as amicus curiae in this appeal, (2) accepting the brief that has been filed
and served along with this motion, and (3) granting such other relief as to this Court deems just
and proper.

February 5, 2008
-4-
STATE OF NEW YORK
<trnurt nf Appeals
Niagara County,
Petitioner,
vs.

Respondent.
BRIEF OF AMICUS CURIAE
JOHN J. DELMONTE, ESQ.

A ttomey for Amicus Curiae
Daniel T. Lukasik, Esq., As
Founder and Administrator of
Lawyers with Depression
2706 Pine A venue
P.O. Box 2146 NMS
Telephone: (716) 282-4511
Facsimile: (716) 282-3289

BATAVIA LEGAL PRINTING, INC.-Telephone (866) 768·2100
TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................... 1
FACTUAL BACKGROUND ........................................................................ 2
ARGUMENT .......................................................................................... 4
POINT I. THE COMMISSION DISREGARDED THE UNCONTRADICTED

EVIDENCE OF EMOTIONAL STRESS AS THE BASIS FOR THE
MISCONDUCT COMMITED ON MARCH 11, 2005 ....................... .4
POINT II. THE COMMISSION FAILED TO FULLY ASSESS THE EVIDENCE

PRESENTED OF JUDGE RESTAINO'S TREATMENT OF HIS
ADJUSTMENT DISORDER IN RECOMMENDING REMOVAL
WITHOUT REGARD FOR ITS UNLIKELY
RECURRENCE ............................................................................... 6
CONCLUSION ....................................................................................... 9
- 1-
CASES
Matter ofBlackbume, 7 N.Y.3d 213 (2006) .................................................................................... 7
Matter of Sims, 61 N.Y.2d 349, 353 (1984) .................................................................................... 8
Matter of Watson, 100 N.Y.2d 290 (2003) ...................................................................................... 7
OTHER AUTHORITIES
Juvenile and Family Court Journal, Fall 2003 (Peter G. Jaffe, Claire V. Crooks, Billie Lee
Dunford-Jackson and Judge Michael Town, Vicarious Trauma in Judges:
The Personal Challenge of Dispensing Justice .................................................................... 5
Vicarious Trauma in Attorneys, Andrew P. Levin, M.D. and Scott Greisberg, M.A.,
24 Pace L. Rev. 245 (Fall 2003) .......................................................................................... 6
11
Amicus intervenes in this matter to respectfully disagree with the Commission's
Determination recommending removal of Judge Robert M. Restaino from the bench
without giving substantive regard to the evidence presented during the course of his
hearing that Judge Restaino was suffering from a longstanding bout of depression
(characterized by his testifying psychiatrist and psychologist as an "Adjustment Disorder
With Mild Depression") and disregarding Judge Restaino's rehabilitation efforts to
prevent a recurrence of such conduct in the future. The Commission's Determination not
only ignored the testimony and reports submitted by Dr. , a forensic
psychiatrist, and Dr. a clinical psychologist, but dismissively makes
light of the serious matters presented by those witnesses by fleetingly referring to the
entire subject matter of their testimony as "certain stresses in his [Judge Restaino's]
personal life" and disregarding those matters as inconsequential and not rising to the level
of providing any "mitigating circumstances in the record before us." See Commission
Determination, Record on Review ("R") at 18.
This brief is offered to the Court by Amicus specifically for the purpose of
addressing the caustic and dismissive treatment the Commission gave to the serious
issues of Petitioner's mental health, his vigilant and successful treatment of the
underlying condition which gave rise to the "displaced" misconduct of March 11, 2005,
and most importantly, the uncontradicted evidence of the lack of any likelihood of a
- 1-
repeat occurrence by Judge Restaino ifhe is permitted to retain his seat on the Niagara
Falls City Court bench.
FACTUAL BACKGROUND
Judge Restaino became a part-time Associate Judge of the Niagara Falls City
Court in 1996. The position thereafter became full-time and he was elected to a full ten-
year term which commenced on January 1, 2002. R. at 67 6-79. Prior to the events of
March 11, 2005, he had an exemplary and unblemished record as a jurist. Previously he
had served approximately 9 years as a public defender during which time he also
maintained a private practice and altogether handled many hundreds, if not thousands, of
cases as a practicing attorney without any record of complaint of professional
misconduct. R. at 675-76. Before assuming his duties as a full-time member of the
Niagara Falls City Court bench (and to the extent permitted under the Canons after
becoming a judge), Judge Restaino committed himself to a wide array of civic, public and
educational endeavors, including but not limited to, the Board of Directors of Niagara
Falls Community Missions, the Boys and Girls Club of Niagara Falls, Niagara Catholic
High School, the Niagara Falls Public Library Board and the Niagara Falls Housing
Authority. R. at 701-03. His reputation throughout the community in connection with
all of his public and private service throughout the course of his adulthood is impeccable.
Against the backdrop of the above are the events of March 11, 2005, while Judge
Restaino was presiding over the Domestic Violence Part of Niagara Falls City Court.
Domestic Violence Court is a specialized treatment court established for the purpose of
adjudicating cases involving offenses committed against family members, the goal and
-2-
purpose of which is to serve as a diversionary protocol for the disposition of such cases
through counseling, awareness and victim impact programming, and imposing a 26 week
regimen of court appearances on all of the participants. R. at 684-85, 689. The Domestic
Violence Part, is an extremely busy Part, oftentimes handling 70 - 80 cases at a time,
week in and week out. R. at 681. On March 11, 2005, there were approximately 70
cases on Judge Restaino's Domestic Violence calendar. R. at 715.
Judge Restaino had assumed responsibility for the Domestic Violence Part in
1999. R. at 680-81. In perspective, over six plus years up until the date of this incident,
and excepting routine breaks in the calendar, Judge Restaino would have presided over
roughly 350 weeks of cases involving thousands of defendants who had committed
violent and/or abusive offenses against spouses and/or children. During the course of
their participation, many in the program violated conditions of their participation,
resulting in innumerable occasions where Judge Restaino was required to hear and
consider explanations for such violations, offer reprieves from the same, or in some
instances, impose a sanction, including re-imposing bail, incarceration or ejectment from
the Part. R. at 682-687. It is in the context of this environment involving thousands of
cases, almost all of which were of the most unsettling and disturbing kind within the
criminal justice system, combined with the unfortunate circumstance of Judge Restaino's
long-simmering, but highly repressed and internalized, depression that his conduct of
March 11, 2005 must be viewed and evaluated.
The facts of what he did that day from the bench in remanding 46 defendants to
custody, including 14 who were eventually incarcerated until the late afternoon until they
-3-
were released by him, are not in dispute. Judge Restaino forthrightly admitted to the
Referee and the Commission the wrongfulness of his conduct that day and his
remorsefulness for its occurrence. More importantly, however, Judge Restaino
acknowledged and admitted to himself that something else was going very wrong in his
life which gave rise to his behavior that day and he met the challenges of that self-
realization in a meaningful and positive manner by immediately seeking and continuing
professional treatment and assistance.
ARGUMENT
POINT I. THE COMMISSION DISREGARDED THE UNCONTRADICTED

EVIDENCE OF EMOTIONAL STRESS AS THE BASIS FOR THE
MISCONDUCT COMMITTED ON MARCH 11, 2005
It is uncontroverted that Judge Restaino was experiencing, albeit in a denial state,
a depressive disorder on March 11, 2005. According to the testimony of Judge
Restaino's treating/consulting psychiatrist and psychologist, the underlying factors and
circumstances giving rise to the depressive state were longstanding and had been building
up over a period of years, most acutely over the prior two years or so as marital stresses
worsened. R. at 400-01. Dr. wrote in his report dated June 3, 2005 that,
R. 1272.
-4-
Dr. pointedly summarized the emotional eruption that occurred on March
11, 2005, as a "displaced" retaliation by Judge Restaino against the defendants standing
before him in court that day in a misguided effort to purge his own frustrations and
failures in dealing with the stresses and breakdowns he was experiencing in his personal
life. On top of this was the cumulative effect of the environment he was operating in
which involved tragic cases of abuse and violence by family members against one
another, adding a layer of "vicarious trauma." Over time, that "vicarious trauma" eroded
Judge Restaino's emotional tolerance for disorder in his cour,t:room while he was laboring
under the instability of his own depressive condition.
The condition referred to as "vicarious trauma" has been studied and reported on
in connection with judges who preside over cases responding to victims of trauma, such
as domestic violence offenses, over a long period of time. The concept as it relates to
judges was journalized in a study published in the Juvenile and Family Court Journal,
Fall 2003 (Peter G. Jaffe, Claire V. Crooks, Billie Lee Dunford-Jackson and Judge
Michael Town, Vicarious Trauma in Judges: The Personal Challenge of Dispensing
Justice). The authors studied 105 judges who worked in domestic violence courts with a
high volume of cases over a long period of time (six years according to the study). The
authors found that a majority of judges reported one or more symptoms that were
identified as work related "vicarious trauma" experiences, including both short-term and
long-term symptoms, such as sleep disturbances, physical complaints, depression, and
intolerance of others. The authors further related vicarious trauma as being similar to the
same type of symptomology seen in persons experiencing post-traumatic stress syndrome
-5-
(PTSS) and "burnout" .1 In fact, studies show that judges, attorneys, and other
professionals who work with domestic violence and other trauma-related issues
experience significant symptoms of secondary trauma and burnout. Id.; Andrew P.
Levin, M.D. and Scott Greisberg, M.A, Vicarious Trauma in Attorneys, 24 Pace L. Rev.
245 (Fall 2003).
POINT II. THE COMMISSION FAILED TO FULLY ASSESS THE

EVIDENCE PRESENTED OF JUDGE RESTAINO'S TREATMENT
OF HIS ADJUSTMENT DISORDER IN RECOMMENDING
REMOVAL WITHOUT REGARD FOR ITS UNLIKELY
RECURRENCE
The evidence of Judge Restaino's mental health experts established that a
recurrence of the type of conduct witnessed on March 11, 2005, was unlikely and remote
due to the identification of the underlying stressor, the Judge's affirmative action to
confront and deal with the stress trigger, and his recognition of the importance of seeking
professional help if the underlying circumstances were to persist or present themselves
again. R. at 413, 1271-7 5. Notwithstanding this testimony and the other underlying
factors which were elucidated upon at the hearing by the expert witnesses, the
Commission's Determination was entirely silent with respect to these aspects of
explanation and mitigation which should have been more fully and properly considered.
1
Burnout is the clinical term for the emotional state developed by helping professionals, "gradually due to the
accumulation of stress and the erosion of idealism resulting from intensive contact with clients signified by physical
symptoms such as fatigue, poor sleep and headaches, emotional changes including anxiety, irritability, depression
and hopelessness, and behavior manifestations including aggression, cynicism, and substance abuse, leading to poor
job performance, deterioration in interpersonal relationships and significant attrition among professionals working
with traumatized populations". Andrew P. Levin, M.D. and Scott Greisberg, M.A, Vicarious Trauma in Attorneys,
24 Pace L. Rev. 245 (Fall 2003).
-6-
The reason for such consideration is simple and found squarely within the precepts
and precedents of the Court in its review of judicial disciplinary matters. It has been
well-established by this Court that the purpose of judicial disciplinary proceedings is not
to punish wayward judges, but rather to "safeguard the bench from unfit incumbents."
Matter of Watson, 100 N.Y.2d 290 (2003). The test, therefore, is one calculated to
determine the likelihood of a repeat offense by the judge, as evidenced either by a pattern
of prior similar indiscretions, a record of previous disciplinary action, or some other
evidence that would indicate a proclivity to repeat the subject misconduct. In this regard,
it is respectfully submitted that nothing in the Record or the Commission's Determination
reveals past similar behavior or any proof that Judge Restaino would ever allow a repeat
occurrence of the events that transpired on March 11, 2005. In fact, the Record reveals
just the opposite.
Though we are mindful of the Court's decision in Matter ofBlackbume, 7 N.YJd
213 (2006) we would argue that the single instance of misconduct in that case is
distinguishable from the circumstances involving Judge Restaino here, to wit, Judge
Blackbume's actions were apparently viewed as being tantamount to judicial malfeasance
amounting to obstruction of justice or some other miscarriage of her core judicial duties
without any evidence of emotional stress or some other psychological disorder being the
basis for at least explaining or mitigating what she did. By contrast, in the present case
there is a strong record of proof, almost entirely bypassed by the Commission, of a
justifiable explanation for Judge Restaino's aberr~nt behavior based upon a medically
diagnosable condition which triggered his behavior on March 11, 2005, and which has
-7-
been therapeutically addressed to such a degree as to eliminate the likelihood of it
occurring again.
Balancing all of the above, and in light of the Commission's disingenuous
disregard for the psychological factors which were presented during the course of the
hearing, and entirely ignored in its Determination, and in light of this Court's clear
authority to "review the commission's findings of facts and conclusions oflaw but also to
determine the appropriate sanctions for the misconduct found and to impose a less or
more severe sanction" Matter of Sims, 61N.Y.2d349, 353 (1984), it is clear that this
Court now has the opportunity and obligation to examine the entire Record for the
purpose of doing complete justice and impose a more appropriate punishment than the
removal sanction recommended by the Commission. In doing so, the Court can balance
the ledger of Judge Restaino's judicial career by giving him the same consideration of his
overall personal and professional life experiences, including the recognition of his human
faults which do not impair his ability to be deemed fit for continued service as a member
of the Niagara Falls City Court, just as he has so many times in the course of his judicial
service given the same kind of consideration to hundreds of others in the valiant attempt
to help restore their lives.
-8-
CONCLUSION
For the reasons stated herein, we respectfully request that this Court impose a
penalty of censure upon Judge Restaino for his conduct on March 11, 2005.
Dated:February 5, 2008
Niagara Falls, New York
21-06 Pine A venue

P.O. Box 2146 NMS
(716) 282-4511
-9-
STATE OF NEW YORK COURT OF APPEALS
In the Matter of
ROBERT M. RESTAINO,
a Judge of the Niagara Falls City Court Notice of Motion and
of Niagara County, Affirmation in Support of
Motion to Appear as
Petitioner, Amicus Curiae
-against-
NEW YORK STATE COMMISSION

ON JUDICIAL CONDUCT,
Respondent.
PLEASE TAKE NOTICE that upon the annexed affirmation of Christopher
M. Mazur, Esq. dated February 6, 2008, the undersigned will move this Court, upon
these papers and without oral argument, at a regular motion term of this Court, to be
held on February 11, 2008, for an Order pursuant to 22 N.Y.C.R.R. §§530.7(c) and
500.1 l(t): (1) Granting the City ofNiagara Falls, New York permission to appear as
amicus curiae in the above captioned matter and; (2) accepting the brief that has been
filed and served along with this motion dated F ebru

l
'2orf
Dated: February 6, 2008 -·J__ ~
THOMAS M. O'DONNELL
Acting Corporation Counsel
By: CHRISTOPHER M. MAZUR
Deputy Corporation Counsel
City of Niagara Falls, New York
City Hall, 745 Main Street
Telephone: (716) 286-4423
TO: HON. STUART COHEN, CLERK
COURT OF APPEALS
20 Eagle Street
Albany, NY 12207
ATTN: Suzanne Aiardo, Esq.

420 Main Street
Buffalo, NY 14202
ROBERT H. TEMBECKJIAN
ON WDICIAL CONDUCT
61 Broadway
New York, NY 10006
In the Matter of
ROBERT M. RESTAINO,
of Niagara County, Affirmation in Support of
Motion to Appear as
Petitioner, Amicus Curiae
-against-

Respondent.
CHRISTOPHER M. MAZUR, ESQ. hereby affirms, under the penalties of
perjury:
1. That I am an attorney duly licensed to practice law in the State of New
York and am Deputy Corporation Counsel for the City of Niagara Falls, New York
(hereinafter "City"), Thomas M. O'Donnell, Esq., Acting Corporation Counsel. As
such, I am fully familiar with the facts and circumstances surrounding this matter.
2. I make this affirmation in support of a motion, pursuant to 22 N.Y.C.R.R.
§§530.7(c) and 500.1 l(f), for an Order permitting the City ofNiagaraFalls, New York
for leave to participate in this appeal as amicus curiae.
3. The Petitioner brings this appeal pursuant to Judiciary Law §44(7)
seeking review of a determination of the New York State Commission on Judicial

Conduct (hereinafter "Commission"). The Commission found that the Petitioner
violated provisions of the rules governing judicial conduct, 22 N.Y.C.R.R. Part 100
and determined the sanction for such violation to be removal of the Petitioner from his
public office of judge of the Niagara Falls City Court.
4. I have read the Commission's determination and am fully familiar with
the facts and legal issues involved in this matter.
5. The City is a municipal corporation organized and existing under the
Laws of New York State. The Niagara Falls City Council (hereinafter "City Council")
is the legislative branch of city government. The City Council, by resolution, duly
directed the office of the Corporation Counsel to prepare this motion and the
accompanying brief to provide this Court with additional information which it
believes would be of special assistance in that it might otherwise escape consideration
as it reviews the record in this appeal.
6. The City of Niagara Falls has an obligation to its citizens to provide
proper enforcement of the laws, rules and ordinances of both itself and the State. The
City is therefore duty bound to ensure that its local court system fulfills those
requirements.
7. In his 11 years as a Niagara Falls City Court Judge, Robert M. Restaino
has proven to be a knowledgeable, intuitive and above all fair trier of fact in our local
City Court. His fitness and abilities as a judge is well known throughout the City and,
should the decision of the Commission be upheld, the City would be deprived of the
highly competent jurist. Further, the people of the City have spoken in record
numbers in support of the Judge and his appeal before the Court of Appeals.
8. Quite simply, the citizens of the City of Niagara Falls have a strong
interest in the resolution of the issues involved in this matter; namely, the criteria
required for removal of a City Court Judge. While both the undersigned and his client
are well aware of the seriousness of Judge Restaino's actions, for the reasons stated in
the accompanying brief, the City of Niagara Falls respectfully asserts that, based on
the facts of this case, removal is not the appropriate sanction and the penalty of
censure should be imposed.
9. As this case has implications for all City residents, the City of Niagara
Falls respectfully requests permission to participate a~amicus curiae in the appeal.
Dated: February 6, 2008 ' / I~ -i ~

CHRISTOPHER M. MAZUR
<ttnurt nf Appeals
of the
&fate nf New Vnrk
In the Matter of
ROBERT M. RESTAINO,
a Judge of the Niagara Falls City Court of Niagara County,
Petitioner,
- against-
Respondent.
AMICUS CURIAE BRIEF OF

THE CITY OF NIAGARA FALLS, NEW YORK
THOMAS M. 0 'DONNELL
ACTING CORPORATION COUNSEL OF
THE CITY OF NIAGARA FALLS
Attorney for Amicus Curiae
745 Main Street
P.O. Box69
Tel.: (716) 286-4409
CHRISTOPHER M. MAZUR Fax: (716) 286-4424
Of Counsel
Date of Completion: February 6, 2008

TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . n
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS....................................... 3
THE INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT
I AS PETITIONER IS FIT TO SERVE AS A JUDGE,

HE SHOULD NOT BE REMOVED FROM OFFICE . . . . . . . . 7
II PETITIONER HAS UNPRECEDENTED PUBLIC

SUPPORT AND AN UMBLEMISHED RECORD
OF PUBLIC SERVICE.............................. 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PAGE
Cases
Matter of Sims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
61 N.Y.2d 349, 353 (1984)
Lonschein vs. State Commission on Judicial Conduct............... 12

50 N.Y.2d 569, 574 (1980)
ii
The instant matter is an appeal from a decision of the New York State
Commission on Judicial Conduct (hereinafter "Commission"), made pursuant to
Section 44(4) of the New York State Judiciary Law and dated November 13, 2007.
The Commission determined that the appropriate disposition was removal of the
Petitioner for actions undertaken on March 11, 2005 while presiding over the
domestic violence part of the Niagara Falls City Court.
The City of Niagara Falls (hereinafter "City"), is a municipal corporation
organized and existing under the laws of New York State. The City submits this
brief, as amicus curiae, in support of the appeal of the Petitioner Judge Robert M.
Restaino.
The City contends and it is respectfully submitted that the Commission's
decision recommending the removal of Judge Restaino from the bench was made
without adequate consideration of his otherwise outstanding and unblemished
reputation as a jurist and without proper consideration of his good standing in the
community and his value thereto. Further, the City contends that the incident that
precipitated the Commission's determination, Judge Restaino's sanctioning of all
the defendants in his domestic violence court by reinstating or raising their bail
after a cell phone or other electronic device went off and the owner of said device
failed to come forward and accept responsibility, was simply an unfortunate lapse
1
in judgment. That lapse in judgment, when balanced against his nearly 25 years of
distinguished public service, does not render him unfit not to serve as a judge.
2
STATEMENT OF FACTS
Robert Restaino was born in 1959 and has been a lifetime resident of the
City of Niagara Falls. Record "R" at 670. Judge Restaino has attended local
schools and graduated from Niagara Catholic High School in 1977, Niagara
University in 1981 and received his law degree from the State University of New
York at Buffalo Law School in 1985. He was admitted to the New York State Bar
in 1986. Rat 672, 673, 674.
After his admission to the bar, Judge Restaino began his own private
practice serving many members of the local community. Rat 675. Further, he
also served as a part-time Assistant Public Defender for Niagara County,
representing indigent defendants in criminal matters in all our local courts. R at
675.
In 1996, James C. Galie, then Mayor of the City, appointed Judge Restaino
to a part-time position on the Niagara Falls City Court. Later that year, Judge
Restaino was elected to a six-year term as Niagara Falls City Court Judge. In
2001, Judge Restaino was elected to a ten-year term as a full-time City Court
Judge. R at 678-679.
Niagara Falls City Court, despite the City's population of only slightly over
50,000, is the third busiest city court in New York State. Between 1996 and 2006,
Niagara Falls City Court disposed of over a quarter of a million cases. R at 511-
3
512. Judge Restaino himself was responsible for nearly 90,000 dispositions, even
though he was only a part-time judge for the first five years of that period. R at
511. In addition to Judge Restaino's court responsibilities on the Niagara Falls
City Court bench, he also accepted appointments as Acting Niagara County Court
Judge and Acting Niagara County Family Court Judge in order to assist those
courts in reducing their otherwise excessive case loads. Rat 602. At all times and
in all of the courts where Judge Restaino was assigned, he maintained an
impeccable reputation among the bench and bar and the community at large. He
was well known as a knowledgeable, accomplished and unquestionable fair judge
despite his heavy case load.
However, on March 11, 2005 Judge Restaino, like any human being, made a
mistake. On that day, while presiding over a regularly scheduled term of the
Domestic Violence Court in Niagara Falls City Court, a cell phone or other
electronic device rang in the courtroom. When the owner of the device failed to
acknowledge Judge Restaino' s request to come forward, he then preceded to
sanction each defendant by reinstating or raising their bail. Rat 728. In the end,
46 defendants were remanded into custody. Rat 37-38, 43.
Due to the serious nature of the incident, the Commission issued a notice of
formal written complaint on June 20, 2006. After a hearing and later, after oral
argument, the Commission issued its determination on November 13, 2007. The
4
Commission sustained the charges and concluded that Judge Restaino violated
Sections 101.1, 100.2(a), 100.3(b)(l), 100.3(b)(3) and 100.3(b)(6) of the rules
governing judicial conduct. The vote by the Commission members was nine to
one, with Chairman Raoul Felder issuing the dissenting vote. R at 17. Judge
Restaino appealed the determination of the Commission to the New York State
Court of Appeals.
Following the Commission's determination, Judge Restaino was the
recipient of an outpouring of public support from the citizens of Niagara Falls. To
date, there has been a letter-writing campaign, a highly successful petition drive
and several opinion articles in the local newspaper on the Judge's behalf. In light
of this and in light of the Judge's elevated standing before both the bench and the
community at large, the Niagara Falls City Council passed a resolution in support
of the Judge and directing the Corporation Counsel of the City to file an amicus
curiae brief with the Court of Appeals. To that end, this brief is submitted to the
Court for that purpose.
5
THE INTEREST OF AMICUS CURIAE
The City of Niagara Falls is the local government entity representing each
and every citizen and resident located within its geographical boundaries. The City
develops and maintains services, regulates development activities and promotes the
health and quality of life of all its citizens. In short, as a subdivision of our
American democracy, the City works for the will of its citizens, its people. As it
relates to Judge Robert M. Restaino, the people of the City of Niagara Falls have
spoken to its local government in force in support of the Judge's position before
this Court. The City is therefore compelled to inform this Court of the
unprecedented amount of community support for Judge Restaino.
Further, the City has an interest in enforcing the rule of law. This is done by
providing adequate public safety for its citizens as well as assisting in the
administration of the local court system. The local court must not only administer
the laws but protect the rights of the accused. To do so, the courts must be manned
by competent, knowledgeable, accomplished and unbiased judges who administer
the laws and oaths of both the City and State carefully. Throughout his career,
Judge Restaino has exemplified all of those things and more. If the determination
of the Commission is upheld and Judge Restaino is removed from the bench, the
citizens of the City will be deprived of an arbiter of outstanding ability, much to
their detriment.
6
ARGUMENT!
AS PETITIONER IS FIT TO SERVE

AS A JUDGE, HE SHOULD NOT BE
REMOVED FROM OFFICE
The City of Niagara Falls has an obligation to its citizens to provide for the
proper operation and administration of state and local rules of law. It does this in
two ways: The first being through the City Police Department with enforcement
and the second being through administration of the court system.
With regard to our local court, the Niagara Falls City Court, it is the third
busiest local city court in the State, having disposed of over a quarter of a million
cases in the last decade. When faced with such a daunting case load, it is
important to have judges of great ability, intellect and above all common sense.
One such judge that has demonstrated all of these qualities and more is the
Petitioner, Judge Robert M. Restaino.
Since Judge Restaino has became a Niagara Falls City Court Judge in 1996,
he has proven himself to be an accomplished, competent and above all fit jurist.
He has consistently shown eminent fairness and independence while on the bench.
He has traditionally treated both litigants and attorneys who appear before him
with the utmost dignity, respect and decorum. Above all, he has a reputation for
being prompt, efficient, and fair in the handling of his busy calendar.
7
The evidence of Judge Restaino 's breathe of knowledge and ability is well
known and has been documented through the many character witnesses which
appeared on his behalf during the hearing before the Commission as well as the
number of amicus curiae submitting briefs to this Court on his behalf. This is not
only a testament to his competency and credentials as a jurist, but also to his
qualities as an individual.
However, neither Judge Restaino' s abilities as a jurist or a person can erase
the memories of the incident that occurred on March 11, 2005. For on that day,
Judge Restaino, in a misguided attempt to protect the reputation, honor and
integrity of his Court, committed a very serious error in judgment which has
threatened his very career. Judge Restaino himself would be the first to admit that
he made a mistake and, based upon all accounts, has been contrite, remorseful and
forthright regarding this incident. Judge Restaino has cooperated with all aspects
of the investigation of this incident and has taken the necessary steps, both
professionally and personally, to ensure that something of this nature would never
happen again.
Nonetheless, the Commission has determined that Judge Restaino's actions
demonstrate that he is unfit to serve as a City Court Judge. However, this Court,
when reviewing the determination of the Commission is vested not only with the
authority to review the Commission's findings of fact and conclusions of law, but
8
also to determine the appropriate sanction for the misconduct found and to impose
a less or more sanction. See Matter of Sims, 61 N.Y.2d 349, 353 (1984).
Therefore, the decision on whether to remove Judge Restaino from the bench is for
this Court to decide.
When this Court deliberates on the ultimate fate of Judge Restaino, the City
prays that this Court consider the impact on the citizens of the City of Niagara
Falls, New York. For a determination to remove Judge Restaino will not only
punish the Judge himself, but also punish the citizens of our City, depriving them
of a truly gifted, dedicated and competent jurist. That being said, the City of
Niagara Falls respectfully contends that this Court invoke the lesser remedy of
censure when reviewing the recommendation of the Commission.
9
ARGUMENT II
PETITIONER HAS UNPRECEDTED PUBLIC SUPPORT

AND AN UNBLEMISHED RECORD
OF PUBLIC SERVICE
Judge Restaino's long-standing commitment to the community and his
outstanding ability as a jurist on the Niagara Falls City Court bench have endeared
him in the hearts of the citizens of Niagara Falls. Following the publication of the
Commission's November 13, 2007 determination, Judge Restaino has been the
subject of a tremendous outpouring of support unlike any seen before in this
community. Hundreds of individuals have submitted cards and letters to the Judge
indicating their support. A letter-writing campaign has been undertaken by a
number of individuals. A great number of local organizations including, but not
limited to, the Niagara Falls Boys and Girls Club, Family and Children Services,
the Community Mission, the Niagara Falls and Niagara County Bar Associations,
the Niagara Falls Block Club Council, the Niagara Falls Landlord Association, the
Legal Aide Society, the Niagara Ministerial Council, Niagara Catholic High
School, the Pine Avenue Business Association and the Cristoforo Colombo Society
have gone on record indicating their support for the Judge and his appear before
this Court.
Additionally, and most importantly, there has been a petition campaign on
behalf of the Judge. Local businesses and individuals have passed petitions
10
celebrating the Judge's abilities as a jurist and community leader and indicating a
strong disagreement with the findings of the Commission. To date, over 5,100
signatures have been collected, far exceeding any amount of signatures collected
for any collective community purpose in recent memory.
What this clearly shows is that the citizens of Niagara Falls, the people who
elected and re-elected him with nearly 80% of the popular vote in a contested
election, are willing to look beyond the March 11, 2005 incident and instead focus
on the Judge's nearly 25 years of dedicated public service. For the people of the
City understand the serious nature of this proceeding and the serious implications
that this Court's decision may have upon them: For if he is removed, Judge
Restaino loses only his job as a judge; Niagara Falls loses much, much more.
11
CONCLUSION
"For judges are but men and women who are nonetheless worthy though,
like all human beings, they are sometimes less than perfect". Lonschein vs. State
Commission on Judicial Conduct, 50 N.Y.2d 569, 574 (1980) (dissenting opinion
of Judge Fuchsberg.) A judge therefore, like any other man, can make a mistake.
On March 11, 2005, Judge Robert M. Restaino made a mistake, a very serious
mistake of judgment which now threatens his very career as a judge. But that
career, previously unblemished and overflowing with insight and accomplishment,
should not be cut short by this one isolated incident. Therefore, the City of
Niagara Falls respectfully prays that this Court balance all with the relevant factors
in this case and impose the penalty of censure upon Judge Restaino for his conduct
11 .
on March 11, 2005.

Respec(!Uli.h'
OMAS M. O'DONNEL
POBox69
Telephone: (716) 286-4423
12
In the Matter of
ROBERT M. RESTAINO,
a Judge of the Niagara Falls City Court Corporate Disclosure
of Niagara County, Statement Pursuant to
Rule 500.l(c)
Petitioner,
-against-

Respondent.
Pursuant to §500.l(c) of the Rules of the Court of Appeals, the undersigned
advises the Court that it has no corporate parents, subsidiaries or affiliates, with the
exception ofN.F.C. Development Corp., Niagara Falls Urban Renewal Agency and
Bellevue Local Development Corp.

i1vi
P0Box69
Telephone: (716) 286-4423
STATE OF NEW YORK
Qtnurt nf Apptals
STATE OF NEW YORK

ROBERT M. RESTAINO,

AMICUSCURIAEINTHECOURTOFAPPEALSAND
SUGARMAN LAW FIRM, LLP

SHANNON M. HENEGHAN, ESQ., Of Counsel
Attorney for Proposed Amicus Curiae
City of Niagara Falls Police
Department, Niagara Falls Police
Club and Niagara Falls Captains
and Lieutenants Association
1600 Rand Building
14 Lafayette Square
Telephone: (716) 847-2523
Facsimile: (716) 847-2589

STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO,
Niagara County,
Petitioner, NOTICE OF MOTION
FOR LEAVE TO FILE
A BRIEF AMICUS CURIAE
-vs-

JUDICIAL CONDUCT,
Respondent.
PLEASE TAKE NOTICE, that upon the annexed affidavit of Shannon M.
Heneghan, Esq., and the accompanying proposed brief, and upon all prior
proceedings herein, the undersigned will move this Court at a motion term thereof
to be held at the Court of Appeals Hall, Albany, New York on the 11th day of
February 2008 for an Order granting the City of Niagara Falls Police Department,
the Niagara Falls Police Club, the Niagara Falls Captains and Lieutenants
Association, and Sheriff Thomas A. Beilein, leave to appear and file the
accompanying proposed brief, as amicus curiae in support of Petitioner's position
on this appeal, and for such other and further relief as the Court deems just and
proper in the circumstances.
Sugarman Law Firm, LLP • 1600 Rand Building • 14 Lafayette Square • Buffalo, NY 14203
February 6, 2008
, '1,LLP
TO: Terrence M. Connors, Esq.

Telephone: (716) 852-5533

Counsel to the State
61 Broadway
Telephone: (212) 809-0566
Sugarman Law Firm, UP • 1600 Rand Building • 14 Lafayette Square • Buffalo, NY 14203
STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO,
Niagara County,
Petitioner,
ATTORNEY'S
AFFIDAVIT
-vs-

JUDICIAL CONDUCT,
Respondent.
SHANNON M. HENEGHAN, ESQ. being duly sworn, deposes and says:
1. I am an attorney licensed to practice law in the State of New York
and am a member of the Sugarman Law Firm, LLP, attorneys for the proposed
Amicus Curiae, City of Niagara Falls Police Department, the Niagara Falls Police
Club, the Niagara Falls Police Captains and Lieutenants Association, and Thomas
A. Beilein, Sheriff, Niagara County Sheriffs Department.
2. I submit this Affidavit in support of the motion of the City of Niagara
Falls Police Department, the Niagara Falls Police Club, the Niagara Falls Police
Captains and Lieutenants Association, and Thomas A. Beilein, Sheriff, Niagara
County Sheriffs Department, for an Order permitting the City of Niagara Falls
Police Department, the Niagara Falls Police Club, the Niagara Falls Police
Captains and Lieutenants Association, and Thomas A. Beilein, Sheriff, Niagara
County Sheriffs Department, to appear as Amicus Curiae.
3. This appeal is brought to this Court pursuant to Judiciary Law Section
44 seeking review of a determination of the New York State Commission on
Judicial Conduct (hereinafter "Commission").
4. I have reviewed the Commission determination, as well as the
transcript of the hearing, the referee's report dated March 30, 2007, and as such
am fully familiar with the facts and issues involved in the instant case.
5. Further, I have also spoken with James Conte, President of the
Niagara Falls Police Club, Superintendent of the City of Niagara Falls Police
Department, John R. Chella, and Bill Thomson, President of the Niagara Falls
Captain and Lieutenants Association, as representatives of these organizations, as
well as Thomas A. Beilein, Sheriff, Niagara County Sheriffs Department. The
aforementioned entities and individual request that this Court issue an Order
permitting them to appear as Amicus Curiae in the instant matter. This proceeding
presents issues with important ramifications that will have a direct impact on the
Amici, all of whom are extremely active in the Niagara Falls law enforcement
community.
6. On March 11, 2005, the Petitioner, Niagara Falls City Court Judge,
Robert M. Restaino (hereinafter "Petitioner") was presiding over the Niagara Falls
Domestic Violence Court in Niagara Falls, New York. After taking the bench an
incident occurred after a cell phone went off in the courtroom. The facts of this
incident are undisputed and already before this Court.
7. The Commission ultimately found that Petitioner violated the Rules
Governing Judicial Conduct, 22 N.Y.C.R.R. Part 100 and determined that
Petitioner's behavior warranted his removal from the bench of Niagara Falls City
Court.
8. The proposed Amicus Curiae are not asking for Judge Restaino 's
behavior to be overlooked, but do submit that the punishment should take all
factors into consideration regarding this elected judge. In the instant case, Judge
Restaino's singular act of misconduct should be compared to his exemplary career.
Following the incident, Judge Restaino realized his error and took steps as soon as
practicable to correct his mistake.
9. These Amici have a unique perspective that should be shared with
this Court given their collective work with Judge Restaino in a professional
capacity both inside and outside of the courtroom.
I 0. Moreover, these Amici have a strong interest in reliance on an elected
Judge.
11. It is the position of the proposed Amicus Curiae that their relationship
~ II
with the judiciary in the legal community provides special assistance to this Court,
and they would invite the Court's attention to further arguments which would
prove relevant to the Court's assessment of the proper sanction to be imposed.
12. The Niagara Falls Police Club, the City of Niagara Falls Police
Department, the Niagara Falls Captains and Lieutenants Association, and Thomas
A. Beilein, Sheriff, Niagara County Sheriffs Department, believe that the parties
in the instant case are not capable of offering the Court a full and adequate
presentation, especially from the vantage point of members active in law
enforcement. These Amici would be able to remedy this deficiency.
13. Based on the aforementioned and the implications that may arise from
this case, the proposed Amici respectfully request that this Court grant them
permission to participate as Amicus """'\lr,4e in the appeal regarding Niagara Falls
_AN, ESQ.
CYNTHIA A. HUNT
Notary Public, State of New York
Qualified in Erie County /D
My Commission Expires Feb 2, 20L:::
STATE OF NEW YORK
Qtnurt nf Appeals
STATE OF NEW YORK


ROBERTM. RESTAINO,

SHANNON M. HENEGHAN, ESQ., Of Counsel
City of Niagara Falls Police
Department, Niagara Falls Police
Club and Niagara Falls Captains
and Lieutenants Association
1600 Rand Building
14 Lafayette Square
Telephone: (716) 847-2523
Facsimile: (716) 847-2589

BATAVIA LEGAL PRINTING, INC.-Telephone (866) 768-2100
TABLE OF CONTENTS
TITLE PAGE NO.
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PRELIMINARY STATEMENT....... . . . . . . . . . . . . . . . . . . . . 3
FACTUAL BACKGROUND....... . . . . . . . . . . . . . . . . . . . . .. . 5
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . 7
POINT I.
THE REMOVAL OF JUDGE RESTAINO FROM THE BENCH IS
A PUNISHMENT DISPROPORTIONATE TO HIS MISTAKE .... 8
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 11
I
TABLE OF AUTHORITIES.
PAGE
Cunningham v. Commission on Judicial Conduct, 57 NY2d 270 (1982 ..... 9, 10
Matter of Blackbume, 7NY2d 213 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Matter of Dusen, 2005 ............................................. 9
Matter of Esworthy, 77 NY2d 280, (1991) .............................. 10
Matter of Quinn, 54 NY2d 386 (1981) ................................. 8
Matter of Sims, 61NY2d349 (1984) .................................. 8
11
COURT OF APPEALS
STATE OF NEW YORK
ROBERT M. RESTAINO,
a Justice of the City Court of Niagara Falls, Niagara County,
Petitioner,
-vs-
Respondent.
Shannon M. Heneghan, Esq.

1600 Rand Building
·14 Lafayette Square
(716) 847-2523
City of Niagara Falls Niagara Falls Police Captains

Police Department and Lieutenants Association
Superintendent John R. Chella 520 Hyde Park Blvd.
520 Hyde Park Blvd. Niagara Falls, New York 14302
-1-
Niagara Falls Police Club Thomas A. Beilein, Sheriff
520 Hyde Park Blvd. Niagara County Sheriffs Department
Niagara Falls, New York 14302 5526 Niagara Street Ext.
P.O. Box 496
Lockport, New York 14095-0496
-2-
STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO,
Niagara County,
Petitioner,
-vs-

JUDICIAL CONDUCT,
Respondent.
This appeal stems from a determination of the New York State Commission
on Judicial Conduct which was made pursuant to New York State Judiciary Law
Section 44 on November 14, 2007. The Commission determined that the
appropriate disposition for Niagara Falls City Court Judge, Robert M. Restaino
(hereinafter the "Petitioner") was his removal from the bench for certain conduct
which occurred on March 11, 2005. These Amici submit that the Commission's
decision recommending removal of Judge Restaino from the bench was made
without proper regard for his exemplary career as a jurist and without proper
consideration of Judge Restaino's undisputed and hard-earned reputation for
confidence and judicial integrity.
Amici request that this Court consider their perspective as law enforcement
-3-
with whom Judge Restaino has worked both in and out of the courtroom.
Amici respectfully submit that Judge Restaino's one (1) mistake compared
to his years of dedication to the legal community and his otherwise impeccable
record does not warrant removal from his elected office.
-4-
FACTUAL BACKGROUND
The Petitioner, Judge Robert M. Restaino has been a Niagara Falls City
Court Judge since 1996 where he served in a part-time capacity until he was
elected in a full-time judgeship in January of 2002. The Niagara Falls City Court
has a domestic violence part where Judge Restaino presided on a weekly basis
from 1999 until March 11, 2005. On March 11, 2005, Judge Restaino made a
mistake in judgment and within hours he regretted his conduct and has since
expressed remorse.
The City of Niagara Falls Police Department currently has over one hundred
and forty (140) sworn officers, as well as thirty (30) civilians in its employment
and handles approximately sixty-five thousand (65,000) calls for service annually.
The Niagara Falls Police Department has a solid partnership within the legal
community to work together to build stronger neighborhoods within the City of
Niagara Falls. The City of Niagara Falls Police Department is committed to
strengthening the cn1cial bonds of cooperation and support within the legal
community, as well as with the citizens of Niagara Falls to work in community
programs. The Niagara Falls Police Club is a labor union which represents
members of the City of Niagara Falls Police Department.
The Niagara Falls Police Captains and Lieutenants Association consists of
twenty-nine (29) members, including nine (9) captains and twenty (20) lieutenants.
The members of the association work hard on a daily basis to protect and improve
-5-
the lives of the citizens of Niagara Falls.
Thomas A. Beilein is the Sheriff of the Niagara County Sheriffs
Department.
-6-
The City of Niagara Falls Police Department, the Niagara Falls Police Club,
the Niagara Falls Police Captains and Lieutenants Association, and Sheriff
Thomas A. Beilein are all members of the legal community in the City of Niagara
Falls, as well as Niagara County. Amici have had many years of experience
working with and observing Judge Restaino. None of the aforementioned entities
believe that Judge Restaino's professional life should be destroyed over one (1)
mistake in an otherwise impeccable career as an attorney, as well as a judge.
These individuals engaged in law enforcement risk their health and lives
throughout the course of criminal investigations and need to be able to rely on the
integrity of a judge when called upon. Every one of these individuals has come to
rely upon the judicial integrity of Judge Restaino.
Further, Judge Restaino has shown a true commitment to law and order
objectives through novel means, such as his efforts in specialty courts. His tireless
contributions as a judge truly help to make our community safer and assist law
enforcement in doing its job.
-7-
POINT I.
This Court has broad plenary power to review a decision of the Commission
in order to determine whether the underlying facts warrant the sanction imposed.
See, Matter of Quinn, 54 NY2d 386 (1981). In the instant case, the Amicus Curiae
respectfully submit that removing Judge Restaino from public office to which he
was elected is unwarranted given that his misconduct on the bench on March 11,
2005 was an aberration in an otherwise exemplary career.
The Commission's decision failed to properly consider any mitigating
circumstances which were clearly demonstrated and are documented in the record
before this Court. In fact, the record includes undisputed proof as to Judge
Restaino's otherwise unblemished record on the bench, as well as testimony to his
good character and reputation. In the instant case, the misconduct of Judge
Restaino was not based on any personal agenda and lasted only for a brief time.
See, Matter of Sims, 61NY2d349 (1984) [petitioner used the authority of her
judicial office to enhance personal relationships] and Matter ofBlackbume,
7NY2d 213 (2006) [based on a perceived insult to herself, petitioner used her
office to stand in the way of law enforcement]. In the instant matter, there is no
allegation of self interest made against Judge Restaino.
Further, the underlying circumstances outlined in the record before this

-8-
Court, as well as the extreme remorse demonstrated by Judge Restaino warrant a
punishment of censure rather than the extreme punishment of removing an official
from elected office. In his opinion dissenting as to the sanction against Judge
Restaino, Raoul Lionel Felder, Esq. found that,
When, in my view, the Commission ask for removal of a

judge, it should not be as part of a game of "gotcha".
The reason should be (1) if a Judge is unchecked, he or
she would be a danger to the community, and (2) unless
restrained by our determination, the Judge would repeat
his or her misconduct. Viewing this Judge, for the
reasons stated above, I do not believe such to be the case.
A third rationale for removal maybe "to send the
message" to the judiciary. I believe, short of Western
Union, that message has been sent by this proceeding.
Certainly, if our purpose is to show we are "tough guys"
and will wheel the bludgeon of removal if a judge loses
control in the courtroom, then that is not a proper
purpose, either by its intention or results. See, Opinion
by Raoul Lionel Felder, Esq. at page 29.
Mr. Felder further found that "although the ultimate cause of respondent's
bizarre behavior that day may never be known with certainty, it is unconteverted
however, that the conduct was a profound aberration and in otherwise
unblemished career. On a human level, I simply do not believe that such an
episode should outweigh a lengthy, distinguished career of public service." See,
Opinion by Raul Lionel Felder, Esq. at page 31.
The sanction of removal should only be imposed in the most egregious
circumstances and should not be imposed for poor judgment or even extremely
poor judgment. See, Matter of Dusen, 2005 Annual Report 155 and Matter of
-9-
Cunningham v. Commission on Judicial Conduct, 57 NY2d 270 (1982). The
purpose behind judiciary disciplinary proceedings is not for punishment but for the
imposition of sanctions necessary to safeguard the Bench from unfit incumbents.
See, Matter of Esworthy, 77 NY2d 280, (1991 ).
Amici have a unique perspective on Judge Restaino's abilities as a jurist and
firmly believe that his judicial integrity, his courtroom efficiency and demeanor
are well established in the legal community in the City of Niagara Falls, as well as
in Niagara County. Additionally, amici respectfully advise that Judge Restaino's
service as a City Court Judge helped to further law enforcement objectives of
keeping communities safer through novel means, such as his work with the
specialty courts and youths in the community. Amici submit to this Court that
when all circumstances are considered, the brief and aberrant misconduct should
not lead to his removal.
-10-
CONCLUSION
The Commission's determination of removal is unwarranted and this Court
should direct that the sanction of censure should be imposed. The request of a
sanction for censure as opposed to removal is not to ask for a free pass for Judge
Restaino. Instead, amici believe that Judge Restaino's unblemished career as an
attorney and a judge, his contributions to safety and law enforcement efforts in the
community as a judge, and other mitigating factors should be considered in light
of his one instance of misconduct.

February 5, 2008
-11-
BATAVIA LEGAL PRINTING, INC.
P.O. Box57
Stafford, New York 14143-0057
Phone: (585) 768-2100 Toll Free: (866) 768-2100
Fax: (585) 768-9487 E-Mail: blpi@frontiemet.net
February 19, 2008
STUART M. COHEN, CLERK

New York State Court of Appeals
20 Eagle Street
Re: In the Matter of Robert M. Restaino
Dear Mr. Cohen:
Per my conversation today with Susan from your office, enclosed please find 24 labels to be applied
to the covers of the Amici Curiae Briefs previously filed with the Court at the request of Sugarman
Law Firm, LLP (Shannon M. Heneghan, Esq.). Our office had mistakenly filed the Briefs with an
incorrect cover.
We apologize for any inconvenience this may have caused. Please call our office with any questions
or concerns.
Sincerely,
t ~
,C
,
11l/
-/Jl~ /_,d~
, /' .1
.
Kelly R. Maher
KRM/drd
Enc.
cc: Robert H. Tembeckjian, Esq. (with 2 labels)

Terrence M. Connors, Esq. (with 2 labels)
Shannon M. Heneghan, Esq.
l NIAGARA COUNTY
:; ;QFFICE OF PUBLIC DEFENDER DAVID J. FARRUGIA
[ ~r,JIAGARA COUNTY COURTHOUSE Public Defender
'"~; 175 HAWLEY STREET (716) 439-707 l
t "·' LOCKPORT, NY 14094-2740 (716) 439-7076 fax
February 6, 2008
Hon . Stuart M. Cohen , Clerk

Court of Appeals
20 Eagle Street
Albany, NY 12207
Re : In the Matter of ROBERT M. RESTAINO , Petitioner

-against-
NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT
Dear Mr. Cohen :
Enclosed please find the following in connection with the above-captioned matter:
1. Notice of Motion for Leave to Submit a Brief as Amicus Curiae

and accompanying affirmation;
2. Certificate of Service;
3. Brief of Amicus Curiae ;
4. Attorney's check for $45.00.
If you have any questions or need any further information , please do not hesitate to
contact me.
DJF/lz
xc w/encs : Robert H. Tembeckjian


Vincent E. Doyle , Ill, Esq .
& ' '
In the matter of
ROBERT M. RESTAINO,
A Judge of the Niagara Falls City Court
Niagara County,
Petitioner
- against -

JUDICIAL CONDUCT,
Respondent
NOTICE OF MOTION FOR LEAVE TO SUBMIT

A BRIEF AS AMICUS CURIAE
PLEASE TAKE NOTICE that upon the annexed affirmation of David J.
Farrugia, Niagara County Public Defender, and Robert M. Pusateri, Niagara County
Conflicts Defender, the undersigned will move this Court upon these papers and
without oral argument at a regular motion term of this Court to be held on
February 11, 2008, for an Order pursuant to 22 N.Y.C.R.R. §§530.7(c) and 500.23:
(1) granting leave to David J. Farrugia, Niagara County Public Defender, and Robert
M. Pusateri, Niagara County Conflicts Defender, to file a brief as amicus curiae in
the above-captioned appeal and accepting in the above-captioned case the brief
that has been filed and served along with this motion.

Niagara County, New York
DAVID J. FARRUGIA
Niagara County Public Defender
Niagara County Courthouse
175 Hawley Street
Lockport, NY 14094
(716) 439-7071
ROBERT M. PUSATERI
Niagara County Conflicts Defender
175 Hawley Street
Lockport, NY 14094
716-439-7310
DAVID GERALD JAY

Attorney at Law
Buffalo, NY 14202
716-856-6300
Attorneys for Amici
To: Hon. Stuart M. Cohen

Clerk, Court of Appeals
20 Eagle Street
Albany, NY 12207
801 Second Avenue
New York, NY 10017

Vincent E. Doyle, Ill, Esq.
424 Main Street
Buffalo, NY 14202
In the matter of
ROBERT M. RESTAINO,
Niagara County,
Petitioner
- against -

JUDICIAL CONDUCT,
Respondent
David J. Farrugia and Robert M. Pusateri, hereby affirm, under penalty of
perjury:
1. That we are the Niagara County Public Defender and Niagara County
Conflicts Defender, respectively, and make this affirmation in support of a motion
. pursuant to 22 N.Y.C.R.R. §§530.7(c) and 500.23 for an Order permitting Amici to
appear as amici curiae in the above-captioned appeal.
2. Petitioner brings this appeal pursuant to Judiciary Law §44(7) seeking
review of the determination of the New York State Commission on Judicial Conduct
(the "Commission"). The Commission fol.ind that Petitioner violated provisions of
the Rules Governing Judicial Conduct, 22 N.Y.C.R.R. Part 100 (the "Canons") and
determined that removal was the appropriate sanction for the violations.
3. We have read the Commission's determinations and are familiar with
the facts and legal issues involved in this case.
4. Petitioner argues that the sanction of removal imposed by the
Commission is too severe.
5. The proposed amici, David J. Farrugia and Robert M. Pusateri, are the
department heads of departments whose staff members represent the majority of
the indigent defendants and, thus, the total of defendants who appear in Niagara
Falls City Court. Both amici are interested in the outcome of this appeal, namely
because we believe it is in the best interests of our clients, past, present and future,
that Petitioner be allowed to remain on the bench.
6. The proposed amici, David Gerald Jay, is a civil rights practitioner who
represented five of the persons jailed by Judge Restaino on March 11, 2005. Mr.
Jay, who conducted an extensive investigation into this matter, found that Judge
Restaino's actions of March 11, 2005, were a complete aberration from his usual
excellent demeanor, and feels that the penalty of removal is unjust.
7. Amicis' proposed brief (a copy of which is submitted herewith) would
invite the Court's attention to matters that might otherwise escape its consideration
and the briefs of the parties. See Rule 500.23(a)(4)(ii), (iii). In essence, our brief
urges the Court to take into consideration the Petitioner's experience and
outstanding career as a Public Defender, then as a City Court Judge, in deciding his
fitness to continue on the bench.
WHEREFORE, for the above-stated reasons, the proposed amici respectfully
request that an Order be entered granting them leave to submit a brief as amicus
curiae in the above-captioned appeal, and for such other and further relief as the
Court may deem just and proper.

Niagara County, New York
Niagara County ub ·c Defender

175 Hawley Street
Lockport, NY 14094
(716) 439-7071
gbBERT M. PUSATlffiv__,..,·
f(iagara County Conflicts Defender
175 Hawley Street
Lockport, NY 14094
716-439-7310
DAVID GERALD JAY

Attorney at Law
Buffalo, NY 14202
716-856-6300
NIAGARA COUNTY
OFFICE OF PUBLIC DEFENDER DAVID J. FARRUGIA
NIAGARA COUNTY COURTHOUSE Public Defender
175 HAWLEY STREET (716) 439-7071
LOCKPORT, NY 14094-2740 (716) 439-7076 fax
February 19, 2008
61 Broadway
New York, NY 10006
Re: In the Matter of ROBERT M. RESTAINO, Petitioner

-against-
Pursuant to the Court of Appeals decision of February 14, 2008, enclosed please find
two copies of the Brief of Amicus Curiae in the above-captioned matter.
Very truly yours,
£)[UH[) f} ~~
David J. Farrugia ~
DJF/lz
Enclosures
COURT OF APPEALS
STATE OF NEW YORK
STATE OF NEW YORK COMMISSION

ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44

of the Judiciary Law in Relation to
ROBERT M. RESTAINO,

Niagara County
BRIEF OF AMICUS CURIAE

NIAGARA COUNTY PUBLIC DEFENDER'S OFFICE
NIAGARA COUNTY CONFLICTS DEFENDER'S OFFICE
DAVID J. FARRUGIA
175 Hawley Street
Lockport, NY 14094
(716) 439-7071
ROBERT M. PUSATERI
175 Hawley Street
Lockport, NY 14094
716-439-7310
DAVID GERALD JAY

Attorney at Law
Buffalo, NY 14202
716-856-6300

TABLE OF CONTENTS
PRELIMINARY STATEMENT 1
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · 2
ARGUMENT
IN THE CONTEXT OF JUDGE ROBERT M. RESTAINO'S
ENTIRE LEGAL CAREER, HIS SINGLE ERROR OF
JUDGMENT DOES NOT WARRANT REMOVAL FROM
THE BENCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Niagara County Public Defender's Office and Niagara County Conflict
Defender's Office submit this brief as amicus curiae in support of the appeal of
Petitioner Judge Robert M. Restaino.
It is respectfully submitted that the Commission's decision recommending
removal of Judge Restaino was made without due regard for Judge Retaino's
particular experience and insight, first as an Assistant Public Defender and then as
a Judge sitting in the criminal part of Niagara Falls City Court.
Judge Restaino's actions of March 11, 2005, were totally out of character for
an individual who spent his early career as an Assistant Public Defender fighting for
the rights of, and protecting the interests of, persons in circumstances similar to
those faced by the defendants in his courtroom on March 11, 2005. However, in all
other instances, it was abundantly clear that, as a jurist, Judge Restaino had not
forgotten his days as a defense attorney "in the trenches" and understood the
everyday trials and tribulations of the litigants and their counsel who appeared
before him in Niagara Falls City Court Criminal Division. His removal from the
bench will be a detriment to that Court and the people who appear in front of it.
INTEREST OF AMICUS CURIAE
Members of the staffs of the Niagara County Public Defender's Office and
Niagara. County Conflicts Office represent most of the indigent defendants who
appear in the Courts of Niagara County. Because most of those criminal
defendants who appear in Niagara Falls City Court are indigent, our offices handle
the vast majority of criminal cases in that Court. Over the years, our offices have
handled thousands of cases in which Judge Robert M. Restaino has presided.
Judge Restaino, who served 10 years as an Assistant Public Defender, has a
special understanding of the challenges faced by indigent defendants and public
defense attorneys. It is our hope that he continue to serve his community on the
bench.
Attorney David Gerald Jay represented several of the defendants who were
in Court on March 11, 2005, in a civil suit brought against Judge Restaino. It is his
opinion, knowing all the facts and circumstances of this case, that the penalty of
removal is too severe.
2
ARGUMENT
IN THE CONTEXT OF JUDGE ROBERT M. RESTAINO'S

ENTIRE LEGAL CAREER, HIS SINGLE ERROR OF
JUDGMENT DOES NOT WARRANT REMOVAL FROM
THE BENCH.
"The purpose of judicial disciplinary proceedings is not punishment but the
imposition of sanctions where necessary to safeguard the bench from unfit
incumbents." Matter of Watson, 100 NY2d 290; Matter of Esworthy, 77 NY2d 283.
We disagree with the Commission's findings that Judge· Restaino's actions of
March 11, 2005, has irreparably damaged public confidence in his ability to serve as
a Judge. We believe the Commission, in coming to that determination, was
unaware of the true measure of Judge Restaino's reputation in the community,
particularly that portion of the community thereof that happened to find its way into
the criminal division of Niagara Falls City Court. Judge Restaino was an Assistant
Public Defender for 10 years prior to his being elevated to the bench. He enjoyed a
reputation as being a determined and ardent advocate for the rights of the indigent
accused. He gained an understanding of the type of problems his clients faced not
only in the court but in their lives, and these experiences were carried forward by
him when he was elevated to the bench.
Although the Judge's conduct on March 11, 2005, belies this, he understands
the difficulties and challenges which commonly face defendants, especially indigent
defendants in his Court. Likewise, as inappropriate as his conduct was on that day
resulting in inconvenience to some and downright hardship to others, we doubt that
the effects of Judge Restaino's actions altered the lives of the individuals who were
in his courtroom that day in any permanent respect. Likewise, although certainly
3
punishment needs to be meted out, the punishment recommended by the
Commission of removal will not only end Judge Restaino's professional life, but
would deeply impact the community he served. He was a good Judge, fair to both
sides, extremely hardworking and dedicated to seeking justice.
Attorney Jay, who represented several of the individuals who were affected
by Judge Restaino's actions of March 11, 2005, came to learn during the course of
his investigation of this case that Judge Restaino enjoyed an excellent reputation in
the community and Mr. Jay came to the opinion that his actions, which resulted in
these proceedings, was an aberration. Mr. Jay is of the opinion that removal is too
harsh a penalty.
4
CONCLUSION
For the reasons stated herein, we respectfully request that this Court impose
a penalty of censure upon Judge Restaino for his conduct of March 11, 2005.
Niagara County Pub 1c efender

17 5 Hawley Street
Lockport, NY 14094
(716114 - Lj?;-~
R~.ZO:sA;ER;"'~
175 Hawley Street
Lockport, NY 14094
716-439-7310
DAVID GERALD JAY

Attorney at Law
Buffalo, NY 14202
716-856-6300
5
STATE OF NEW YORK
Qtnurt nf Apptuln

Niagara County,
Petitioner,
vs.

Respondent.

AMICUS CURIAE IN THE COURT OF APPEALS AND
PHI ALPHA DELTA LAW

FRATERNITY, INTERNATIONAL
ROBERT VIOLA, ESQ., Of Counsel
770 Main Street - M.P.O Box 948
Niagara Falls, New York 14302-0948
Telephone: (716) 285-9555
Facsimile: (716) 285-6618

STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO,
a Judge of the Niagara Falls City Court, Niagara County,
Petitioner
NOTICE OF MOTION
-vs- FOR LEAVE TO FILE A
BRIEF AMICUS CURIAE
NEW YORK STATE
COMMISSION ON JUDICIAL CONDUCT,
Respondent
PLEASE TAKE NOTICE that upon the annexed Affidavit of Robert Viola, a
member of Phi Alpha Delta Law Fraternity, International and the accompanying
proposed brief, and upon all prior pleadings and proceedings herein, the undersigned will
move this Court at a Motion term thereof to be held at the Court of Appeals Hall, Albany,
New York, on the 11th day of February, 2008, for an Order granting the Phi Alpha Delta
Law Fraternity, International leave to appear and file the accompanying proposed brief,
as Amicus Curiae in support of Petitioner's position on this appeal, and for such other and
further relief as the Court may deem just and proper in the circumstances.
PHI ALPHA DELTA LAW

-
FRATERNITY. INTERNATIONAL
........__
By:7 Robert Viola, Esq.

Attorney for proposed Amicus Curiae
770 Main Street- M.P.O. Box 948
(716) 285-9555
1
STATE OF NEW YORK
COURT OF APPEALS
ROBERT M. RESTAINO,
a Judge of the Niagara Falls City Court, Niagara County,
Petitioner
AFFIDAVIT IN SUPPORT OF
-vs- MOTION TO FILE
BRIEF AMICUS CURIAE
NEW YORK STATE
COMMISSION ON JUDICIAL CONDUCT,
Respondent
STATE OF NEW YORK}

COUNTY OF NIAGARA}ss:
Robert Viola, being duly sworn, deposes and says:
1. That I am an attorney duly licensed to practice my profession in the State of
New York; I am also a member of the Phi Alpha Delta Law Fraternity, International
(hereafter Law Fraternity) and bring this Affidavit in support of this application for leave
to participate in this appeal as Amicus Curiae.
2. The matter before this Court involves the conduct of Robert M. Restaino,
City Court Judge of the City of Niagara Falls, New York and the proceedings pending
before this Court are conducted pursuant to Judiciary Law Section 44(7).
3. That the factual circumstances involving Judge Restaino's conduct on
March 11, 2005 in a Domestic Violence Part of Niagara Falls City Court are known to
this organization and have not been disputed by Judge Restaino.
2
4. That indeed he did not controvert the twenty-seven (27) factual allegations
before the New York State Commission on Judicial Conduct. Therefore, there appears to
be no need to set forth the factual allegations again in detail. They have been recognized
as undisputed.
5. Although, recognizing the facts of March 11, 2005, it is the position of the
Law Fraternity that Judge Restaino has upheld his oath and has maintained and
demonstrated the principals of this organization and deserves to remain a member of the
Bench in Niagara Falls City Court.
6. Judge Restaino has been a member of this Law Fraternity since he was a
student at the State University of New York at Buffalo School of Law and indeed has
risen to a position of leadership within this organization. He has been a District Justice
with the responsibility of overseeing the activities of the Law Fraternity in seven (7) law
schools in the northeastern portion of the United States.
7. He has unselfishly given of his time and talent in furtherance of the
purposes of the Law Fraternity and has led a dedicated professional and civic life despite
the activities of one aberrant day.
3
8. The Law Fraternity has as its declaration of purpose:
"The purpose of this Fraternity shall be to form a strong bond

uniting students and teachers of the law with members of the
Bench and Bar in a fraternal fellowship designed to advance
the ideals of liberty and equal justice under law; to stimulate
excellence in scholarship; to inspire the virtues of compassion
and courage; to foster integrity and professional competence;
to promote the welfare of its members; and to encourage their
moral, intellectual, and cultural advancement; so that each
member may enjoy a lifetime of honorable professional and
public service."
9. It is the position of the Law Fraternity that Judge Restaino has upheld these
purposes and has demonstrated these ideals throughout his life and in the way in which
he conducted himself immediately after the March 11, 2005 events and sought
professional help in self recognition of a perceived problem.
10. That accordingly, the Law Fraternity respectfully seeks leave to appear as
Amicus Curiae since it respectfully believes that the brief submitted on behalf of the Law
Fraternity demonstrates why Judge Restaino exemplifies the principles and ideals of our
organization.
11. The Law Fraternity respectfully believes that the brief submitted will be of
special assistance to this Court in making a fully informed and appropriate determination
of the sanction warranted for Judge Restaino.
4
12. The Law Fraternity has made no previous application for this relief.
f~
Kobert Viola
Subscribed and Sworn to before

me this 6th ~J~ .7'~~~'".!!..l..
~ ~;7h~
(_~~Pub!ie
Anthon}?{ Leone
State of New York Notary Public
Regisfration Number 01LE6088273
Qualified in Niagara County
Commission Expires March 3, 2011
5
STATE OF NEW YORK
Qtnurt nf Appeals
Niagara County,
Petitioner,
vs.

Respondent.
BRIEF OF AMICUS CURIAE ON BEHALF OF

PHI ALPHA DELTA LAW FRATERNITY,
INTERNATIONAL
PHI ALPHA DELTA LAW

FRATERNITY, INTERNATIONAL
ROBERT VIOLA, ESQ., Of Counsel
770 Main Street - M.P.O. Box 948
Telephone: (716) 285-9555
Facsimile: (716) 285-6618

TABLE OF CONTENTS
INTEREST OF THE AMICUS CURIAE ................................................... 1
INTRODUCTION .............................................................................. 2
ARGUMENT ..................................................................................... 3
1. Judge Restaino exemplifies the principles and ideals to which all PAD
members swear to uphold, and to which all members of the bar should conform.
Removal would deprive the legal profession of an experienced jurist whose record
on the bench is unblemished .................................................................... 3
Integrity ................................................................................... 4
Compassion ............................................................................... 5
Courage ................................................................................... 6
2. The duties and responsibilities of the position of District Justice may have
unwittingly added to the psychological stressors which resulted in the singular act
of aberrant behavior by Judge Restaino ....................................................... 6
CONCLUSION ................................................................................... 7
INTEREST OF THE AMICUS CURIAE
Phi Alpha Delta Law Fraternity, International ("Fraternity" or "PAD"), established
m 1902, is the world's largest law fraternity. It has chapters at virtually every ABA
accredited law school in this country, plus law school chapters in Canada, Mexico and
Puerto Rico. It has chartered alumni chapters in 90 locations throughout North America
and, since 1980, has established over 270 chapters at undergraduate institutions, primarily
in the United States. The fundamental mission of the Fraternity is outlined in the
Constitution and By-Laws of the organization, as follows:
"Article II - Declaration of Purpose
The purpose of this Fraternity shall be to form a strong bond

uniting students and teachers of the law with members of the
Bench and Bar in a fraternal fellowship designed to advance
the ideals of liberty and equal justice under law; to stimulate
excellence in scholarship; to inspire the virtues of compassion
and courage; to foster integrity and professional competence;
to promote the welfare of its members; and to encourage their
moral, intellectual, and cultural advancement; so that each
member may enjoy a lifetime of honorable professional and
public service."
In its 105 year history, the Fraternity has chosen to avoid taking a stand as an
advocate for any particular cause, ironic when one considers that the organization has its
roots in a legal controversy. In 1897, a ruling of the Illinois Supreme Court adversely
affected candidates for admission to the bar. A group of law students challenged the
ruling, succeeding in having legislation passed which exempted them from the ruling.
Recognizing that such an organization could have universal appeal, the group and its
1
followers met in Chicago and officially adopted rules to govern their activities, and Phi
Alpha Delta was born.
"Thus, growing from a tiny nucleus originating in a legal

controversy at the turn of the century, Phi Alpha Delta has
achieved a position of preeminence among the law
fraternities." Ritual, at page 14."
The Fraternity recognized that the case of Judge Robert M. Restaino 1 presented a unique
opportunity to advance its principles of integrity, compassion and courage in order to
demonstrate the need to have jurists of Judge Restaino's character and dedication remain
members of an unbiased and competent judiciary. For these reasons, the Fraternity
believes that it can provide a unique perspective and special assistance to this Court, and
accordingly respectfully submits this brief as amicus curiae.
INTRODUCTION
The Commission imposed what the Fraternity believes was an unnecessarily harsh
sanction for a single act of misjudgment in an otherwise stellar and unblemished judicial
career. In a decade of service to the people of Niagara Falls, New York, Judge Restaino
has no prior record of complaints or sanctions. His reputation for fairness and strict
adherence to the rule of law is above reproach. He is widely recognized among litigants,
attorneys, court staff and observers for well-reasoned decisions, and for appropriate and
just sanctions for violators of the law. Judge Restaino, throughout his decade long
service on the Niagara Falls City Court bench, has exemplified the motto of the
Fraternity: "Service to the Student, the School, the Profession, and the Community". In
1
Judge Restaino was initiated into the Alden Chapter on March 6, 1984.
2
light of his momentary lapse in judgment, the stressors which gave rise to this aberration,
his immediate and sincere remorse for his conduct, his prompt admission of wrongdoing
to and cooperation with the Commission, and his immense body of community and
public service in a relatively short period of time, removal from the bench appears
unwarranted.
ARGUMENT
1. Judge Restaino exemplifies the principles and ideals to which all PAD members
swear to uphold, and to which all members of the bar should conform. Removal
would deprive the legal profession of an experienced jurist whose record on the
bench is unblemished.
When Judge Restaino took the solemn oath of membership in Phi Alpha Delta
Law Fraternity, International while a law student at University at Buffalo Law School, he
swore to uphold the laws and legal precepts of this country, respect the courts and obey
their legal mandates, and to be "just and honorable in all [his] professional activities."
Ritual, pages 14-15. Elsewhere in the Ritual, these words appear: "The attributes of
Integrity, Compassion and Courage, complemented by Professional Service, are
fundamental principles of Phi Alpha Delta, and the indespensable ingredients of the
character of a true lawyer." Ritual, at page 11. The standards of the judiciary of the State
of New York, and indeed all state and federal courts throughout the land, ensure that
members serve as the benchmark by which all others in the legal community are
measured. The Fraternity has seen its members elevated to the highest courts in the land
and to the justice courts in towns and villages across the country. At every step along the
3
way, judges are viewed as the pillars which support our legal system. So, too, is Judge
Restaino viewed in his community and within his Fraternity.
Integrity
"Integrity is [ ... ] that unchanging spirit of fidelity to principles which makes it
impossible for a true lawyer to mislead a court, distort the rule of law announced in a
decided case, or deceive a client as to the strength or weakness of his cause." Ritual, at
page 12. Judge Restaino serves as a model of integrity to the students with whom he
comes in contact during his visits to law schools and PAD events in his role within the
Fratemity2 • Attorneys within the Niagara Falls legal community can rely upon his loyalty
to truth in deciding the merits of a case. In the approximately 2,000 days that Judge
Restaino has taken the bench since 1996, his friends and critics alike can point to only
one such day - March 11, 2005 - that his behavior was out of the ordinary. One
admittedly bad morning should not be the legacy for which Judge Restaino is
remembered. The integrity of the bench will not be adversely affected to the point of
requiring his removal, for he committed no penal or other criminal offense that might
justify such harsh treatment. Instead, he overzealously exercised his authority to impose
sanctions upon those who appeared in his court that day, conduct for which he has
already and repeatedly expressed shame and remorse.
2
Judge Restaino was appointed District Justice of District XIX of the Fraternity in 2004 by
Colonel J. Derek Hill, then International Justice (Chairman of the Board) of PAD. Judge
Restaino resigned this position in June, 2005.
4
Compassion
"Compassion leads a lawyer to accept the cause of the unfortunate, the
underprivileged, and those who are the object of scorn and public disfavor." Ritual, at
page 12. Judge Restaino's resume is replete with instances where he took an active role
in such causes, including serving on the boards of various community service groups
whose mission it is to assist those who are less fortunate, and serving as a Public
Defender in Niagara County prior to his elevation to the bench. In his role as an acting
Family Court Judge, he provided a beacon of hope for those who came before him. As a
judge in the criminal courts, he believed in the notion that some deserve a second chance,
as exemplified by his work in Domestic Violence cases and his creation of the ATONE 3
program to reach young adults.
At first blush, one may argue that he was not compassionate to those who stood
before him on March 11, 2005, but his remorse for his conduct began to take hold very
soon thereafter as he began the process - even while away from the court house where
this madness occurred - to have his actions undone. We don't know if he recalled his
PAD oath from the recesses of his mind at that juncture, or a return to his roots as a
compassionate advocate on behalf of the less fortunate did the trick, but the turning point
came when he no doubt understood the gravity of his error, and he took action to reverse
this injustice.
3
ATONE - Adult and Teenage Opportunities for Non-Violence Education, a program
conceived, implemented and coordinated by Judge Restaino, beginning in 2002.
5
Courage
"Courage brings the lawyer . . . to defend the rights of these persons with full
abilities and a stout heart." Ritual, at page 12. When he recognized his error, Judge
Restaino immediately reached out to the court staff and, utilizing the full resources of the
court system, pressed the police department and jail to bring the cases back before him to
redress the grievous misjudgment of that morning. While many would be paralyzed by
fear or might be intoxicated by pride, Judge Restaino was forthright in his remorse and
courageous enough to soldier on with his duties in the face of criticism heaped upon him
for his brief lapse in judicial temperament. Again, we can only hope, not know, what
brought Judge Restaino to that awakening, but we see in this instance that the oath taken
by a law student 20 years before became at that moment of reckoning more than just
letters printed on a page, but words to live by.
For the reasons stated herein, the punishment of censure should be substituted by this
court for the harsh sentence of removal.
2. The duties and responsibilities of the position of District Justice may have
unwittingly added to the psychological stressors which resulted in the singular act of
aberrant behavior by Judge Restaino.
In its quest to be "of special assistance to the Court" [Rule 530.7(c) (3)], the
Fraternity recognizes that it may have played a role in adding to the "stressors" that were
at play in the spring of 2005 when this episode occurred. As previously mentioned,
Judge Restaino took on added responsibility outside the confines of the bench when he
agreed to accept a position with the Fraternity in August, 2004. In his role as District
6
Justice, Judge Restaino was expected to maintain contact with seven (7) law school
chapters of PAD spread from Pittsburgh through Buffalo and east to Springfield,
Massachusetts. The demands of the position were explained to the Judge and, perhaps in
his effort to "bury" himself in work in a misguided effort to distance himself from other
pressures existant in his life, he accepted the responsibility.
In March of 2005, the push to add new members at the law school chapters
through spring initiations was in full swing. With the added stress to address that burden
piled on top of what amounted to an avalanche of psychological stressors already in place
from work and home, it is no wonder that an eruption took place. We may never know if
this was the proverbial "straw that broke the camel's back", but it helps to explain -
though not excuse - Judge Restaino's conduct in court that fateful morning.
7
CONCLUSION
The integrity of the bench will not be impaired by Judge Restaino remaining one
of its members. To the contrary, the bench is benefited from his membership. Judge
Restaino espouses the principles and ideals that PAD holds so dear and to which judges
in New York should aspire. The Fraternity therefore urges this Court to reject the
determination of the Commission that removal is appropriate and order censure as the
more fair and equitable disposition.
PHI ALPHA DELTA LAW

FRA~;~ITY~TE.RN/TIONAL
By:<~r~L
Robert Viola, Esq.
Attorney for proposed Amicus Curiae
770 Main Street-M.P.O. Box 948
(716) 285-9555
8
STATE OF NEW YORK
<trnurt nf App.euls
Niagara County,
Petitioner,
vs.

Respondent.

AMICUS CURIAE IN THE COURT OF APPEALS
and AFFIRMATION IN SUPPORT OF MOTION
ON BEHALF OF NEW YORK STATE ASSOCIATION
OF CITY COURT JUDGES
WALSH, ROBERTS & GRACE

Attorneys for Amicus Curiae
400 Rand Building
14 Lafayette Square
Telephone: (716) 856-1636
Facsimile: (716) 856-1610
GERALD GRACE, JR., ESQ.

MARK P. DELLA POSTA, ESQ.
Of Counsel
STATE OF NEW YORK
COURT OF APPEALS

Niagara County,
NOTICE OF MOTION FOR LEAVE
Petitioner TO SUBMIT A BRIEF AS
AMICUS CURIAE
v.
STATE COMMISSION ON JUDICIAL

CONDUCT,
Respondent
PLEASE TAKE NOTICE, that upon the annexed Affirmation of MARK P. DELLA
POSTA, ESQ., the undersigned will move this Court, at Court of Appeals Hall, 20 Eagle
Street, Albany, New York, 12207, on the 11th day of February, 2008, for an Order granting
leave to WALSH, ROBERTS & GRACE, representing members of the New York State
Association of City Court Judges to file a Brief as Amicus Curiae in the above-captioned
appeal, and for such further relief as this Court may deem just and proper.

February 6, 2008
Yours, etc.,

/~~---
Mark P. Della Pesta, Esq.
400 Rand Building
14 Lafayette Square
Buffalo, New York 14203-1928
(716) 856-1636
TO: CLERK OF THE COURT
20 Eagle Street

Attorney for Petitioner
424 Main Street
Robert H. Tembeckjan, Esq.

Attorney for Respondent
61 Broadway
STATE OF NEW YORK
COURT OF APPEALS

Niagara County,
AFFIRMATION IN SUPPORT OF
Petitioner MOTION FOR LEAVE TO SUBMIT A
BRIEF AS AMICUS CURIAE
v.
STATE COMMISSION ON JUDICIAL

CONDUCT,
Defendant-
Appellant
STATE OF NEW YORK )

COUNTY OF ERIE )SS.:
CITY OF BUFFALO )
MARK P DELLA POSTA, ESQ., an attorney admitted to practice law in the Courts
of the State of New York, affirms under the penalties of perjury:
1. That I am an attorney at law duly licensed to practice my profession in the
State of New York and I am a partner with the law firm of WALSH, ROBERTS & GRACE.
2. I make this affirmation in support of a Motion for Permission to Submit Brief
as Amicus Curiae in support of Petitioner in the above-captioned appeal. This affirmation
is based on information and belief, the source of which is my review of the Record and
Briefs in the above-captioned case.
3. The proposed Amicus is the New York State Association of City Court
Judges, a Judicial Organization established pursuant to §217 of the N.Y.S. Judiciary Law.
The organization consists of all of the City Court Judges in upstate New York outside the
City of New York.
4. Petitioner brings this Appeal pursuant to Judiciary Law Section 44(7) seeking
review of determinations of the New York State Commission on Judicial Conduct, which
determined that the appropriate disposition is removal of the Petitioner from the bench.
5. I have read the Commission's determinations and am familiar with the facts
and legal issues involved in this case.
6. As more fully set forth in Amicus' proposed Brief, (a copy of which is
submitted herewith) the members of the New York State Association of City Court Judges
include many Judges that have presided, and continue to preside, over specialty courts
involving issues of domestic and family violence, drinking and driving, crimes by veterans,
housing code violations, etc. The experience of the members of this association in
presiding over specialty courts gives them a unique perspective as to the protocol and
pressures attendant to presiding in such Courts. Based upon this experience, the
association respectfully requests the opportunity to be of special assistance to the Court,
and to invite the Court's attention to facts, circumstances and arguments which might
otherwise escape the Court's consideration. Amicus' proposed Brief draws on legal
authorities from jurisdictions, articles and other sources of information that are not
discussed at any length in the parties' Briefs.
WHEREFORE, for the above-stated reasons, the proposed Amicus respectfully
requests an Order be entered granting the New York State Association of City Court
Judges leave to submit a Brief as Amicus Curiae in the above-captioned Appeal, and for
such other relief as this Court may deem just and proper.
February 6, 2008
Mark P. Della Pesta, Esq.

400 Rand Building
14 Lafayette Square
Buffalo, New York 14203-1928
(716) 856-1636
STATE OF NEW YORK
Qtnurt nf Appeals
Niagara County,
Petitioner,
vs.

Respondent.
BRIEF OF AMICUS CURIAE ON BEHALF OF

NEW YORK STATE ASSOCIATION
OF CITY COURT JUDGES

400 Rand Building
14 Lafayette Square
Telephone: (716) 856-1636
Facsimile: (716) 856-1610
GERALD GRACE, JR., ESQ.

MARK P. DELLA POSTA, ESQ.
Of Counsel
Page
Cases:
Matter of Blackburne, 7 N.Y.3d 213, 818 N.Y.S. 824 (2006) ................ 11, 13
Matter of Kiley, 74 N.Y.2d 364, 547 N.Y.S.2d 623 (1989) ..................... 11
Matter of LaBelle, 79 N.Y.2d 350, 582 N.Y.S. 2d 970 (1992) ................ 12, 13
Matter of Lonschein, 50 N.Y.2d 569, 430 N.Y.S. 571 (1980) . . . . . . . . . . . . . . . . . . . 11
Matter of Skinner, 91 N.Y.2d 142, 667 N.Y.S.2d 675 (1997) . . . . . . . . . . . . . . . . . . . 11
Other Authorities:
Martha Wade Steketee, New York's Integrated Domestic Violence Courts,

Family Violence Forum, Vol. 3, No. 2 [Summer 2004], available at
http://www.ncsconline.org/projects_lnitiatives/FamilyNol3No2.htm ......... 9
Peter Jaffe, Ph.D., Domestic and Family Violence: Vicarious Trauma and
Judges, Municipal Court Recorder, July 2003, available at
http://ww,w.tmcec.com/newsletter/recorderpages/0703domestic.htm . . . . . . . 10
ii
INTEREST OF THE AM/CUS CURIAE
The New York State Association of City Court Judges ("NYSACCJ") is a Judicial
Association of the Unified Court System established pursuant to Judiciary Law §217. The
Association consists of city court judges of the State of New York located in cities outside
the City of New York. The purposes and mission of the Association are to improve the
standards, practices and effectiveness of the city courts and to maintain a liason with other
judicial associations and organizations, including the various prosecuting and defense
agencies, law enforcement agencies, Office of Court Administration, as well as the various
executive and administrative agencies and departments of the State of New York. The
Association is also committed to cultivating the science of jurisprudence and reforms in
the law and facilitating the administration of justice and the elevation of standards of
integrity, honor and courtesy in the legal profession.
The particular interest in this matter results from the fact that the Petitioner has been
an exemplary member of the Association for many years and has been an outstanding
jurist with an unblemished record. More importantly, the decision of the Commission on
Judicial Conduct ("Commission") to treat Judge Restaino's psychological and emotional
condition with such apparent levity is a matter of grave concern to the NYSACCJ.
Regardless of how this Court rules on the issue of sanction in this case, it is our fervent
hope that the Court will formally acknowledge that untreated emotional issues can have
disastrous consequences for judges at every level and that the Record in this case clearly
establishes that this fine Judge did not get help when he sorely needed it. We consider
the Commission's dismissive treatment of Judge Restaino's emotional and psychological
1
issues to be troubling. We would most respectfully ask that this Court not ratify this
decision.
Judge Robert M. Restaino has, for many years, served various offices in the
NYSACCJ and he presently holds the office of 1st Vice President of the Association. The
sanction of removal imposed by the Commission is an unnecessarily harsh and excessive
sanction for this single, isolated act of misjudgment. In this admitted lapse and error in
judgment, Judge Restaino wrongly decided to "draw a line in the sand" with the defendants
who were in attendance at his weekly Domestic Violence Court. Once the line was drawn,
the Judge erroneously felt that the integrity of this "specialty court" was at stake. He had
painted himself into a corner. While the "collective punishment" suffered by those
defendants in attendance in the Court can not be justified - nor should it, the error in
judgment by the Judge still pales in comparison to his unblemished record.
For a short period of time on March 11, 2005, Judge Restaino, admittedly one of the
most dependable and competent judges sitting as a city court judge in the State of New
York, suffered a lapse of judgment caused by psychological factors - factors which were
ignored by the Commission. The Commission wrongly and unnecessarily concluded that
the conduct warranted the ultimate sanction of removal. To the contrary, the removal of
this Judge would prove disastrously detrimental to the successful administration of justice
in the City of Niagara Falls, New York - particularly in the problem-solving courts of that
jurisdiction.
2
The Record on Review in this case is replete with undisputed evidence of Judge
Restaino's commitment to his charge as a City Court Judge and as a caring and effective
representative of the judiciary. Judge Restaino was handling an average of 100 to 120
cases on a normal day (R. 679-80). * Through October, 2006, Judge Restaino was
responsible for approximately 90,000 dispositions in spite of the fact that during five years,
he was only a part time Judge (R. 511).
From the perspective of the Niagara County District Attorney's Office, Judge
Restaino was described as "very hard working, very efficient, respectful and polite to the
litigants and the attorneys." He was further described as "very conscious of what was
going on in the courtroom as far as when people needed to be someplace, he would
accommodate their schedule." He was also described as "(a)lways cognizant of the
witnesses (and) whether they were being inconvenienced." He was always sure that
people were treated with respect in his court (R. 585).
Indeed, Judge Restaino is widely known for his prompt and efficient handling of a
busy calendar (R. 162, 193, 517, 679, 715). Despite working under an oppressive
caseload, he is known as intelligent, even-tempered and, above all, fair (R. 527, 540-41,
547, 558, 566, 581 587-88, 603-04, 666, 759).

J
Despite the inordinately high caseload which Judge Restaino was required to handle
in Niagara Falls City Court, he nonetheless was approved for Acting County Court status
and Acting Family Court status. Judge Restaino took on what was described as a
"crushing case load" in Niagara County Family Court and showed a particular "aptitude" for
* References are to page numbers in the Record on Review.
3
working in that court. Judge Restaino was always seen as a highly efficient judge who did
a very effective and efficient job with all tasks that were assigned to him (R. 601-03). The
unblemished career of Judge Restaino is undisputed.
Unfortunately, if one were to "Google" the name of Judge Restaino today, one would
not learn anything about the many outstanding accomplishments and contributions that
were made by him during his stellar judicial career. Rather, the more than 10,000 "hits" will
chronicle this "cell phone" incident. Interest in this case has become national and, yes,
even global. On behalf of the members of the NYSACCJ, we would urge the Court to
dispassionately recognize that the sanction of removal is indeed excessive despite the
unbelievable and incomprehensible notoriety of this case. This Court must continue to
ensure that sanctions imposed by the Commission fit the offense involved - regardless of
how widespread the media coverage may be. Removing Judge Restaino for a single
misjudgment (which unfortunately for him plays to the current electronic device overload
to which all of us are exposed on a daily basis) would not fit this offense when measured
against his unblemished record.
Most importantly, however, we believe that this Court needs to thoroughly examine
the Record in this case with respect to the evidence offered on behalf of Judge Restaino
regarding the undisclosed psychological pressure and stressors which were affecting him
at the time of this incident. The fact that the Commission found "no mitigating
circumstances in the Record" flies in the face of reason and common sense. The mental
health and well being of the Judiciary is of the utmost concern to the NYSACCJ (as it
should be to all legal professionals) and an acceptance of the extreme sanction of removal
4
given the realities of Judge Restaino's condition will send a very troubling and chilling
message to all of those jurists who struggle daily with emotional problems.
ARGUMENT
A. THE SANCTION OF REMOVAL IS EXCESSIVE, INAPPROPRIATE

AND IGNORES A VITAL MITIGATING FACTOR.
In its decision, the Commission concluded that the Record contained "no mitigating
circumstances." The Commission, in one brief, dismissive paragraph elected to ignore the
unrefuted evidence which clearly explains but does not excuse Judge Restaino's aberrant
and indeed bizarre conduct in the Domestic Violence Court on March 11, 2005 (R. 18-19).
The fact that the Commission chose to simply dismiss the obvious psychological pressures
which were on Judge Restaino at the time of this incident is of great concern to the
NYSACCJ. As a Judicial Association, the NYSACCJ is concerned with the problems which
affect all of the judiciary, and in particular, City Court Judges across the State. Today, the
stressors which operate on a typical city court judge are ever increasing. In addition to
handling the normal busy and overworked criminal and civil dockets, judges today must
administer and conduct "specialty courts" such as the Domestic Violence Court where this
incident occurred.
It would appear that despite the undisputed medical evidence which is contained in
the Record, the Commission chose to dismiss it by concluding that:
"... presiding in a busy court presents every judge with

significant challenges on a daily basis, and every judge is
obliged to set aside his or her personal problems upon
5
entering the courtroom and to be an exemplar of dignity,
courtesy, and patience (Rules, §100.3[8][3])." (R. 19).
It is indeed unfortunate that the psyche of Judge Restaino was not up to the rather
staunch requirements of the Rules Governing Judicial Conduct for a brief period of time
on the date of this incident when his human frailty exhibited itself.
The dismissive treatment of this obvious "mitigating circumstance" by the
Commission causes us to reflect upon just where we are headed if this sanction is
accepted by this Court.
The Commission correctly concluded that Judge Restaino's conduct was both
"bizarre" (R. 15), and aberrational (R. 18). However, even five of the Commission's own
members noted Judge Restaino's actions were completely out of character with his
excellent reputation as a normal, level judicial temperament (R. 144-50, 193, 213-14, 226,
237-38). Interestingly, in the oral argument of this matter before the Commission, Mr.
Postel, counsel for the Commission, argued the following:
"This is not about a cell phone going off. This is about

defendants violating his trust. This is about defendants who
don't give him the answer he wants. Even though they- there
is no proof they had the answer, there is no proof they had the
cell phone ... " (R. 1652).
Mr. Pastel's conclusion as to what "(t)his is about" ignores the facts in this Record.
In fact, just four (4) pages earlier in the Record, Mr. Postel describes for the Commission
the even tempered manner in which Judge Restaino had been conducting the Domestic
Violence Court prior to the ringing of the cell phone. He offers the Commission the
following: "What changed between when he evaluated their cases in a considered
fashion? Only the cell phone going off." (R. 1648).
6
We would respectfully suggest that Mr. Postel was correct in his second assessment
of the situation that "(t)his is not about a cell phone going off." What this is about is the
undisputed pressurized state of Judge Restaino's psyche at that particular point in time.
At page 1653 of the Record, there is a very telling and we believe dispositive
exchange between Mr. Postel and Commissioner Coffey:
"MR. COFFEY: But, well, the action is so bizarre, I mean, it's just so bizarre that it
leads one to a question why did he do it. And it is so bizarre, in an
odd sort of way, should he be removed on something he had no prior
history of anything?
MR. POSTEL: It's so profoundly wrong that it suggests to us - and that's a great
point, why did he do it? If we don't - we still don't have an answer
from respondent. He's given some defenses - frustration, marital
strain, neither of which is a legitimate defense, I would argue before
this body as to the conduct of this nature - you can't be sure under
that scenario that it won't happen again ... "
For counsel to argue and for the Commission to conclude that the "frustration and
marital strain" from which Judge Restaino was suffering is nothing more than an illegitimate
"defense" is to ignore the fundamental nature of the problem and to totally ignore the
Record.
We believe that it is crucial for this Court to recognize the medical element of this
case for what it is. The psychological stressors which were affecting Judge Restaino on
that day are not frivolous "defenses" - they are real life, human problems which are being
faced by more jurists across the State than any of us would care to admit. To cavalierly
dismiss the testimony of and by simply indicating
that "such an explanation cannot excuse his behavior" (R. 18) is to ignore a critical problem
and to regress fifty years from a mental health treatment perspective. The psychological
pressure cooker in which Judge Restaino found himself on March 11, 2005, resulted in the
7
behavior which has been repeatedly described as "bizarre". According to Judge Peters for
the Commission - "so bizarre, so unusual, it strains anyone's ability to understand." (R.
1654).
Acceptance of the sanction of removal by this Court will have a chilling effect on any
judge (city court·orotherwise) who may be suffering from psychological strain and who may
be treating with mental health professionals or considering such treatment. Judge
Restaino testified before the Commission that the counseling that he has received has
helped him "recognize that its not a bad thing to talk with professionals about these issues."
(R.797) By removing Judge Restaino from the bench, the Commission is choosing to
reinforce the social stigma of yesteryear - that seeking treatment for a mental illness is
different than seeking treatment for a physical injury. Rather than punishing the
messenger, we believe that it is time to recognize the daily stress and strain that is on our
jurists and move forward so that they can all become the true problem-solvers that Chief
Judge Kaye envisioned when the specialty courts were created.
8. THE SANCTION OF REMOVAL IS EXCESSIVE AND EXTREME

GIVEN THE CONTEXT OF THE MISCONDUCT.
Judge Restaino's admittedly egregious conduct on March 11, 2005, should be
viewed in context. Where did the conduct occur? What was the role of the Judge in that
context? Most importantly, did the context place the Judge in a different, less structured
environment in his dealings with these defendants?
8
The incident of March 11, 2005 occurred during Judge Restaino's weekly, Friday,
Domestic Violence Court (R. 6). The defendants in the courtroom at the time of the "cell
phone incident" were all voluntary participants in this specialty court (R. 5-6).
Martha Wade Steketee, in an article entitled "New York's Integrated Domestic
Violence Courts" correctly pointed out:
"The strongest proponents, including Chief Judge Judith Kaye

cited by the article as 'undisputedly the prime mover for
problem-solving courts in New York,' acknowledged that these
courts require a new role for judges beyond that of
dispassionate adjudicator to include case manager,
administrator, community advocate, and cheerleader."
(Emphasis supplied).
Family Violence Forum Volume 3, No. 2 [Summer 2004], available at

http:\\www.ncsconline.org/projects_lnitiatives/FamilyNol3No2.htm.
For a short time, on March 11, 2005, Judge Restaino, admittedly one of the most
dependable and competent specialty court judges (R. 514-15), failed to appreciate the
context in which he found himself. Like it or not, the demands on this judge in the setting
of a specialty court finally resulted in a short circuit which, in turn, resulted in some very
bizarre behavior.
Judges who were trained in the rules of evidence, criminal and civil procedure, are
now expected to become experts in the science of addiction and the mindset of wife
beaters. From all accounts, it appears from the Record that Judge Restaino was up to the
task prior to March 11, 2005. Judges in the "problem-solving courts" are expected to solve
the problems of the defendants. They are expected to solve those problems by being
therapists, social workers, lawyers and judges.
9
For some time prior to March 11, 2005, the Record discloses that Judge Restaino
was confronted with a problem he could not solve. His frustration (R. 743, 748, 751, 909)
at being unable to "solve the problem" of the cell phone was only a manifestation of his
deeper problems. Nonetheless, he made an error in judgment by threatening an entire
courtroom of defendants with bail revocation if the guilty party was not identified (R. 6-7).
Inexplicably, he knew most of the defendants, he had successfully "problem-solved" with
most all of them for weeks, if not years, before March 11, 2005. Once he issued his threat
to the defendants, the integrity of the system, in his mind, and his ability to effectively
manage this specialty court, in his mind, were put in jeopardy. His decision to revoke bail
on forty-six defendants in his courtroom that day was clearly and admittedly flawed.
The oral argument of this matter before the Commission is filled with the "why"
question. The medical portions of this Records clearly and undisputedly answer the "why"
question. This is not a judge who needs to be removed. This is a judge who needed to
get psychological and psychiatric counseling, but erroneously felt he could deal with the
problems on his own. This is a judge who received counseling, and who thereafter served
on the bench for more than two years until his removal by the Commission. And, this is a
judge who now, having received that assistance, will serve well in the future because of it.
It has been recognized that judges, working in Domestic Violence Courts and Family
Violence Courts have displayed signs of what has come to be termed "vicarious trauma."
In his article, "Domestic and Family Violence: Vicarious Trauma and Judges", Dr. Peter
Jaffe made the following observation:
"Vicarious trauma may be exhibited by a wide variety of

symptoms that are emotional, interpersonal, cognitive,
behavioral, and even spiritual. Judges have described how the
10
nature of what they see and hear in the courtroom can shake
their very faith in humanity. Along the way they describe
depression, anxiety, sleep disturbances, hypervigilance,
nightmares, and withdrawal from family and friends. The
impact may be mild and short term or last for years and require
mental health intervention. The clinical literature in this field
stresses that these reactions are normal in the context of the
violence which is being considered on a daily basis."
(Municipal Court Recorder, July 2003, available at

http://www.tmcec.com/newsletter/recorderpages/0703domestic.htm)
Judge Restaino's failure to avail himself of much needed help before he "snapped"
on March 11, 2005 should not result in his removal from the bench. Under these
circumstances, censure would be the appropriate sanction.
C. CASES INVOLVING SINGULAR EVENTS OF POOR JUDGMENT

OR MISCONDUCT DO NOT NORMALLY WARRANT THE
EXTREME SANCTION OF REMOVAL.
Though it has occurred, removal of a judge for a single act of misjudgment, even
extreme misconduct, is rare. This Court has repeatedly held that where the single act of
misconduct or error in judgment does not involve "venality, selfish or dishonorable
purpose," but rather involves "poor judgment or even extremely poor judgment," the proper
sanction is censure rather than removal. Matter of Kiley, 74 N.Y.2d 364, 369-70 (1989).
While this Court has specifically rejected the notion that cases involving single acts
of misconduct, or single acts of misjudgment can never result in the sanction of removal
(see Matter of Blackburne, 7 N.Y.3d 213, 219 [2006]), the Court's decisions have
consistently reserved the "extreme sanction of removal" for those cases which go beyond
"poor judgement, even extremely poor judgment" and involve conduct motivated by
11
"personal profit, vindictiveness or ill will" (see, Matter of Lonschein, 50 N.Y.2d 569, 573
(1980); Matter of Skinner, 91 N.Y.2d 142, 144 (1997)).
In Blackburne, supra. at 219-220, this Court stated that "Judicial misconduct cases
are, by their very nature, sui generis." Each case must therefore be judged according to
its own facts. While it is true that this Court has "never implied that removal is limited to
those categories of cases that have formally come before us [the Court]," neither does the
Court of Appeals turn a blind eye to its well-established precedents.
We would respectfully suggest that a "sui generis" examination of this Record
discloses a case involving misconduct much akin to Matter of LaBelle, 79 N.Y.2d 350
(1992). Judge LaBelle, a Judge of the Saratoga Springs City Court was recommended to
be removed by: the Commission upon a finding that in over fifty (50) non-felony cases
involving forty-four (44) defendants, the Judge "committed the defendants ... to jail without
setting bail as required by §530.20(1) of the Criminal Procedure Law." Matter of LaBelle,
supra. at 356. Interestingly, although this Court ultimately found the Commission's
numbers to be somewhat inflated, the Court nonetheless did conclude that Judge LaBelle
had "in several cases during the four-year period investigated, ... improperly committed
defendants to jail without bail, knowing that the law required that bail be set." (at 358).
Judge LaBelle's conduct, occurring repeatedly as it did over a four (4) year period is clearly
more egregious than the conduct of the petitioner herein. Of Judge La Belle's conduct, this
Court observed:
"Nothing in this record suggests that petitioner acted to

advance his own interests over those of the defendants or that
he was vindictive, biased, abusive or venal. .. at the worst, he
exhibited impatience with those who abused their right to bail
by ignoring scheduled court appearances."
12
(Matter of LaBelle, supra. at 363).
Like Judge Restaino, Judge LaBelle was found by the Commission to have been
forthright, cooperative and contrite. This Court concluded, on those facts, that removal was
"too harsh" despite the fact that Judge LaBelle had wrongfully and repeatedly incarcerated
non-felony defendants over a period of four (4) years. Most interesting is the fact that the
record in LaBelle offers no indication whatsoever that the Judge was suffering from any
psychological or emotional problems which would explain his repeated and long standing
conduct. Nonetheless, this Court held that removal was an excessive sanction and
censure was ordered. No different result should obtain in the instant case.
Judge Kaye, in her dissent in LaBelle voted to accept the Commission's
recommendation of removal and in so doing made the following observation: "Whichever
petitioner's motivation, in at least two dozen instances he knowingly and wrongfully
incarcerated individuals before any determination of their guilt, even for periods longer than
a sentence after conviction." (Matter of LaBelle, supra. at 363).
The "motivation" referenced by Judge Kaye referred to Judge LaBelle's testimony
that he ignored the bail requirements because he felt that the defendants would "be more
comfortable, safer and better cared for in jail" (majority opinion Matter of LaBelle at 362).
The other "motivation" for his conduct was expressed as "impatience with those who
abused their right to bail." (LaBelle majority opinion at 363). Despite these obvious
misplaced "motivations", the majority of this court found that the conduct, though clearly
improper, warranted censure rather than removal.
13
Can it be said that Judge Restaino's bizarre outburst and inappropriate conduct
following the ringing of a cell phone is more egregious than that of Judge LaBelle? We
think not. It should also be noted that Judge Restaino's conduct occurred during a session
of a "specialty court" on one Friday morning in March, 2005 (as opposed to over a four year
period of time in the case of Judge LaBelle).
In passing, we would observe that we do not find Matter of Blackburne, supra.
compelling or applicable to the issues presented by this Record. Judge Blackburne
admittedly aided and abetted a violent felon to evade a lawful arrest by a duly constituted
law enforcement officer. Judge Restaino's conduct, though bizarre, does not come close
under any view of the facts.
The Record in this case presents a clear choice for this Court. At page 1680 of the
Record, the following exchange occurred during the oral argument before the Commission:
"JUDGE PETERS: If we censure this judge instead of

removing him, what message are we
giving the forty-six people that were
incarcerated?
MR. DANIELS: You're disciplining him, you're sanctioning

him, he's held up to ridicule,
embarrassment. They know that he is
remorseful for what he did to them.
and at page 1681 :
MR. COFFEY: - I mean, I understand as an advocate you've got to

argue this and, believe me, I can appreciate that. But
what do we do when people say, 'What are these idiots
doing leaving the man on the bench? He's put 46
people in jail without a reason.' Which everywhere in
Niagara and every other place in the State, looks at this
14
and says, 'What are they doing?'. How do we answer
that?"
and at page 1687:
"MR. EMERY: - I just don't see how with a straight face you can argue
that this judge had marital problems which caused this
and that we should take that into account. I don't get it."
On behalf of the New York State Association of City Court Judges, we hope that this
Court "gets it". We implore this Court to take this opportunity to send a message - a
message which will answer Mr. Coffey's question. When "they" ask "What are they
doing?", we will be able to say that we are keeping a talented, competent, caring and fit
Judge on the bench and they are not going to remove him because of the fact that he
momentarily succumbed to psychological pressures and stressors which had been
affecting him for a long time but for which he did not get proper treatment. Hopefully, a
message will be sent to the judiciary of this State and others that in New York, the
members of our judiciary should not sweep emotional and psychological problems under
the rug only to have them explode and destroy an otherwise unblemished career.

February 6, 2008
15
~~.
Gerald Grace, Jr., Esq.
New York State Association of City Court Judges
400 Rand Building
14 Lafayette Square
(716) 856-1636
16
NEW YORK STATE
CORNING TOWER, SUITE 2301
EMPIRE STATE PLAZA
ALBANY, NEW YORK 12223
ROBERT H. TEMBECKJIAN 518-474-5617 518-486-1850 EDWARD LINDNER
ADMINISTRATOR & COUNSEL DEPUTY ADMINISTRATOR
TELEPHONE FACSIMILE
LITIGATION
February 7, 2008
Hon. Stuart M. Cohen, Clerk

New York State Court of Appeals .
20 Eagle Street
Re: Matter of Honorable Robert M. Restaino

Motion No. 081178
- and -
Motions of Lawyers with Depression, Landlords' Association of
Greater Niagara, et al., New York State Association of City Court
Judges, Bar Association of Niagara County, et al., City of Niagara
Falls Police Department, et al., and Phi Alpha Delta Law Fraternity
For Permission to File A Brief Amicus Curiae
Attn: Heather Davis, Chief Motion Clerk
Dear Ms. Davis:
As we discussed, enclosed is a fully-executed stipulation by and between

counsel for Judge Restaino and the New York State Commission on Judicial
Conduct consenting to service of any and all motions for permission to file an
amicus curiae brief on or before February 7, 2008.
The Commission on Judicial Conduct takes no position on these motions,

leaving the determination whether to grant amicus curiae relief to the sound
discretion of the Court.
R£~itted,
Edward Lindner
Deputy Administrator for Litigation

February 7, 2008
Page2
cc: Vincent E. Doyle, III, Esq. John J. Delmonte, Esq.

Connors & Vilardo, LLP Attorney for Lawyers with Depression
Attorneys for Petitioner 2706 Pine Avenue
1000 Liberty Building P.O. Box 2146 NMS
424 Main Street Niagara Falls, New York 14301
Anthony D. Parone, Esq. Robert Viola, Esq.,

Morton H. Abramowitz, Esq. Attorney for Phi Alpha Delta Law
Attorneys for Niagara Falls Fraternity, International
Boys' & Girls' Club, et al. 770 Main Street-M.P.O. Box 948
John M. Aversa, Esq. Shannon M. Heneghan, Esq.

Attorney for Bar Association of Sugarman Law Firm, LLP
Niagara County, et al. Attorney for City of Niagara Falls
625 Sixth Street Police Department, et al.
Niagara Falls, NewYork 14301 1600 Rand Building
14 Lafayette Square
Walsh, Roberts & Grace
Attorneys for New York State
Association of City Court Judges
400 Rand Building
14 Lafayette Square
Mary Ann Oliver, Esq.

Attorney for Landlord's Association
Of Greater Niagara, et al.
775 Third Street
STATE OF NEW YORK : COURT OF APPEALS

Niagara County,
Petitioner,
-vs-

Respondent.
STIPULATION REGARDING
MOTIONS FOR AMICUS CURIAE RELIEF
The parties in the above matter, the Hon. Robert M. Restaino and the
New York State Commission on Judicial Conduct, hereby stipulate that any
motions to file a brief as amicus curiae returnable on February 11, 2008 shall be
served by any means so that the Commission on Judicial Conduct receives the
motion papers on or before February 7, 2008.

February 6, 2008
1/IAdt~
Vincent E. Doyle III, Esq. Edward Lindner, Esq.
Connors & Vilardo, LLP Deputy Administrator for Litigation
Attorneys for Petitioner Commission on Judicial Conduct
I 000 Liberty Building Attorneys for Respondent
Buffalo, New York 14202 Coming Tower, Suite 2301
(716) 852-5533 Empire State Plaza
(518) 474-5617
~tate of Rem ~ork,
(iourt of 2lpptals
At a session ofthe Court, heldat Court of
Appeals Hall in the City of Albany
on t"e ~~::.~.~.~.~.::~~ day
of .f.~p.~~~~y................ 2008
~resent, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 203
In the Matter of the Honorable
Robert M. Restaino, Judge of
the Niagara Falls City Court,
Niagara County,
Petitioner,
For Review of a Determination of
State Commission on Judicial
Conduct,
Respondent.
A motion having heretofore been made herein by New York

State Association of City Court Judges for leave to file a
brief amicus curiae on the request for review herein and papers
having been submitted thereon and due deliberation having been
thereupon had, it is
ORDERED, that the said motion be and the same hereby is
granted. Two copies of the brief must be served and 24 copies
filed within seven days.
Judge Pigott took no part.
Stuart M. Cohen
Clerk of the Court
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 203

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
ENTERED February 14, 2008

~~~w~
~~~~
DECISION February 14, 2008
Mo. No. 177 Motion by Bar Association of Niagara

In the Matter of the Honorable County, et al. for leave to appear amici
Robert M. Restaino, Judge of curiae on the request for review herein
the Niagara Falls City Court, granted only to the extent that the
Niagara County, proposed brief is accepted as filed. Two
Petitioner, copies of the brief must be served and 24
For Review of a Determination of copies filed within seven days.
State Commission on Judicial Judge Pigott took no part.
Conduct,
Respondent.
~tete of Re\\1 ~ork,
~ourt of £1pptals
At a session ofthe Court, heldatCourt of
on the ~ ~~::.~.~.~.~ ~~ ··day
o~ ~.~.~~~~~;{................ 2008
~rtSent, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 177

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion having heretofore been made herein by Bar

Association of Niagara County, et al. for leave to appear amici
curiae on the request for review herein and papers having been
submitted thereon and due deliberation having been thereupon
had, it is
granted only to the extent that the proposed brief is accepted
as filed. Two copies of the brief must be served and 24 copies
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 177

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
FEB 1
,Judicial Conduct
~~~w~
~~~~
Mo. No. 206 Motion by City of Niagara Falls Police

In the Matter of the Honorable Department, et al. for leave to appear
Robert M. Restaino, Judge of amici curiae on the request for review
the Niagara Falls City Court, herein granted only to the extent that the
Niagara County, proposed brief is accepted as filed. ~Two
Conduct,
Respondent.
~tate of Rero ~ork,
(tourt of 2lpptals
Appeals Hall in the City of A/bany
on the ~ ~~~::-.~.~.~ ~.~ ·'" · day
0~ I:.~.1?~~~~J{................ 2008
~resent, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 206

Niagara County,
Petitioner/
Conduct,
Respondent.
A motion having heretofore been made herein by City of

Niagara Falls Police Department/ et ale for leave to appear
amici curiae on the request for review herein and papers having
been submitted thereon and due deliberation having been
thereupon had/ it is
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 206

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
on
..Jucl r !?! Conc1uct
~-e/Lf!/~
~~~~
Mo. No. 205 Motion by Daniel T. Lukasik, Esq., &c.

In the Matter of the Honorable for leave to appear amicus curiae on the
Robert M. Restaino, Judge of request for review herein granted only to
the Niagara Falls City Court, the extent that the proposed brief is
Niagara County, accepted as filed. Two copies of the
Petitioner, brief must be served and 24 copies filed
For Review of a Determination of within seven days.
Conduct,
Respondent.
~tat( of Rr\\1 ~ork,
Q:onrt of 21pptaLs
on the ~ ~~:r:.t:.~.~.r::~? ·day
0~ I:.~.~~~~~J{................ 2008
~r(.s(nt, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 205

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion having heretofore been made herein by Daniel T.

Lukasik, Esq., &c. for leave to appear amicus curiae on the
request for review herein and papers having been submitted
thereon and due deliberation having been thereupon had, it is
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 205

Robert M. Restaino! Judge of
the Niagara Falls City Court!
Niagara County!
Petitioner!
Conduct!
Respondent.
=========
o R D E R
=========
ENTERED February 14! 2008
FEB 1
~~kry~
~~~~
Mo. No. 204 Motion by Mary Ann Oliver, Esq., et al.

In the Matter of the Honorable for leave to file a brief amici curiae
Robert M. Restaino, Judge of on the request for review herein granted.
the Niagara Falls City Court, Two copies of the brief must be served
Niagara County, and 24 copies filed within seven days.
Petitioner, Judge Pigott took no part.
Conduct,
Respondent.
~tatr of ]1r\\1 ~ork,
(ionrt of 21pptaLs
on the ~ ~~::.~.~.~.~~~ day
of f.<;:.~~~?-~y................. 2 0 0 8
~rrstnt, HON. JUDITH S. KAYE, Chief Judge. presiding.
Mo. No. 204

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion having heretofore been made herein by Mary Ann

Oliver, Esq., et ale for leave to file a brief amici curiae on
the request for review herein and papers having been submitted
granted. Two copies of the brief must be served and 24 copies
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 204

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
State on
Judicial Conduct
~-e/~W~
~~~~
Mo. No. "208 Motion for leave to file a brief amici

In the Matter of the Honorable curiae on the request for review herein
Robert M. Restaino, Judge of granted to the extent that the brief is
the Niagara Falls City Court, accepted as filed on behalf of Family and
Niagara County, Children's Services of Niagara, Inc.,
Peti tiol1.er, Elizabeth Brady and Jennifer Hall; motion
For Review of a Determination of otherwise denied. Two copies of the brief
State Commission on Judicial must be served and 24 copies filed within
Conduct, seven days.
Respondent. Judge Pigott took no part.
~tatr of Rr\\1 ~ork,
(iourt of 2tppraLs
on the ~~~.~.~.~.~~~~ day
of f.~~~~~?:"y................ 2008
~r(.s(nt, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 208

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion for leave to file a brief amici curiae on the

request for review herein having been filed and papers having
been submitted thereon and due deliberation having been
thereupon had, it is
granted to the extent that the brief is accepted as filed on
behalf of Family and Children'S Services of Niagara, Inc.,
Elizabeth Brady and Jennifer Hall; and it is
ORDERED, that the said motion otherwise be and the same
hereby is denied. Two copies of the brief must be served and 24
copies filed within seven days.
Stuart M. Cohen
Clerk of the Court
STATE OF NEW YORK

COURT OF APPEALS
================
Mo. No. 208

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
Cornrni~:!sion on
1judicial CCi"'\(juct
~~~~£
~~~~
Mo. No. 209

° Motion by David J. Farrugia, &c., et ale
In the Matter of the Honorable for leave to appear amici curiae on the
Niagara County, accepted as filed. Two copies of the
Petitioner, brief must be served and 24 copies filed
For Review of a Determination of within seven days.
Conduct,
Respon.dent.
~tQtt of Rt\\l ~ork,
O:ourt of 9pptals
on the ~~::.~.~.~.~~~~ day
of f.~p.~~~;ry................ 2008
~rt.stnt, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 209

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion having heretofore been made herein by David J.

Farrugia, &c., et ale for leave to appear amici curiae on the
request for review herein and papers having been submitted
ORDERED/ that the said motion be and the same hereby is
STATE OF NEW YORK
COURT OF APPEALS
================
Mo~ No. 209

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========

~&/~w~
~~~~
Mo. No. 210 Motion by City of Niagara Falls, New York

In the Matter of the Honorable for leave to appear amicus curiae on the
Niagara County, accepted as filed. Three copies of the
Petitioner, brief must be served and an original and
For "Review of a Determination of 24 copies filed within seven days.
Conduct,
Respondent.
~tat( of Rc\\l ~ork,
c>:onrt of gpprals
on t"e ~~~.~.~.~.~.~~~ day
of f.~~F.~~~y................ 2008
~r(S(nt, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 210

Niagara County,
Petitioner,
Conduct,
Respondent.
A motion having heretofore been made herein by City of

Niagara Falls, New York for leave to appear amicus curiae on
the request for review herein and papers having been submitted
as filed. Three copies of the brief must be served and an
original and 24 copies filed within seven days.
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 210

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========

~~~w~
~~~~
Mo. No. '207 Motion by Phi Alpha Delta Law Fraternity,

In the Matter of the Honorable International for leave to appear amicus
Robert M. Restaino, Judge of curiae on the request for review herein
the Niagara Falls City Court, granted only to the extent that the
Niagara County, proposed brief is accepted as filed. Two
Conduct,
Respondent.
~tate of Re\\1 ~ork,
~ourt of 2lpprals
At II session ofthe Court, heldatCourt of
on the ~~~::.~.~.~.~~~ day
o~ ~.~.~~~~~j{................ 2008
~re.sent, HON. JUDITH S. KAYE, Chief Judge, presiding.
Mo. No. 207

In the Matter of the' Honorable
Robert M. Restaino t Judge of
the Niagara Falls City Court t
Niagara County,
Petitioner t
State Commission· on Judicial
Conduct,
Respondent.
A motion having heretofore been made herein by Phi Alpha

Delta Law FraternitYt International for leave to appear amicus
curia.e on the request for review herein and papers having been
submitted thereon and due deliberation having been thereupon
had t it is
ORDERED t that the said motion be and the same hereby is
STATE OF NEW YORK
COURT OF APPEALS
================
Mo. No. 207

Niagara County,
Petitioner,
Conduct,
Respondent.
=========
o R D E R
=========
--
II \1,1'
U V l~
Slale COrTliTlis3iJn on
JUdicial Conduct
~~~~~d
~~Sd:~
NOTICE TO COUNSEL
Enclosed is a copy of the Court 11 s day calendar for the day on

which your appeal will be argued. It shows both the order in which
the appeals will be presented and the order in which counsel will
present arguments in each appeal. If someone other than the person
listed on the attached calendar will be arguing the appeal, please
call and advise the Clerk's office immediately.
REQUESTS FOR AN ADJOURNMENT OP A CALENDARED APPEAL ARE NOT

FAVORED (SEE SECTION 500.17 [d] OF THE COURT'S RULES OF PRACTICE).
AS STATED IN SECTION 500 .17 (d) Ol~ THE RULES, A REQUEST FOR
ADJOURNMENT SHALL BE BY LETTER TO THE CLERK OF THE COURT, WITH A
COPY TO EACH PARTY. THE PARTY SEEKI:MG A CALENDAR ADJUSTMENT SHALL
STATE IN DETAIL WHY THE REQUEST IS NBCESSARY AND WHY SUBMITTING ON
THE BRIEF FILED OR HAVING SUBSTITUTE COUNSEL ARGUE ARE NOT VIABLE
ALTERNATIVES, AND SHALL STATE OPPOSING COUNSEL'S POSITION ON THE
REQUEST. THE REQUEST ALSO SHALL STAT:E WHETHER COUNSEL HAS COMPLIED
WITH SECTION 500 .17 (c) OF THE COURT' El RULES (PRIOR NOTIFICATION OF
UNAVAILABILITY FOR ARGUMENT).
Upon entering Court of Appealn Hall, arguing counsel must

present photo identification to Court Security Staff. All entering
Court of Appeals Hall will be subject to electronic security
screening. All arguing counsel shall be in the courtroom before
Court convenes.
At the beginning of appellant's presentation, counsel may

request rebuttal time from the Chief Judge. The time for rebuttal
will be deducted from counsel's assigned argument time.
Questions may be directed to either Susan Dautel at (518)

455-7701 or James Costello at (518) 455-7702.
•
Court ofAJJpeals
State ofNe w York 1
The Hon. Judith S. Kaye, Chi~f Judge, Presiding
TUESDAY, APRIL 22, 2008
2:00 P.M.
No. Title Argued by Mins.
82 MATTER OF HON. ROBERT M. RESTAINO Terrence M. Connors 20
Edward Lindner 15
83 MATTER OF FEOLA v CARROLL Vincent Toomey 15
Thomas J. Troetti 15
84 COX v NAP CONSTRUCTION COMPANY, INC. (A) Richard M. Biaggi *

(R) Dennis Cariello *
/ (Cox)
(R) Jonathan Bondy *
(Greenwich Ins.)
85 ARAUJO v TIANO'S CONSTRUCTION (A) Dennis Cariello

CORPORATION, INC. *
(R) Robert W. Mayer *
(Tiano's)
(R) Derek A. Popeil *
(Lumbe+mens)
* 40 mins. total for appellants; 40

mins. total for respondents - counsel
to confer.
4:25
At the beginning of appellant's presentation, counsel may request rebuttal

time from the Chief Judge. The time for rebuttal will be deducted from
counsel's assigned argument time.
OBTAINING THE COURT'S DECISION IN YOUR CASE
Decisions of the Court on appeals and motions are available

shortly after public release on the Court's Internet web si te:
www.nycourts.gov/courts/appeals. In addition, counsel of record
are provided copies of the Court's decision in their case by
regular mail. Decisions usually are mailed within a few days after
public release.
* * *
If you desire to have the Court send you, via overnight

delivery service at your expense, a copy of the decision in your
case on the day it is released, you must provide a pre-addressed
airbill containing your account number, telephone number and the
name (and number, if known) of your case, as well as an envelope
acceptable to the carrier. Airbills and envelopes may be mailed to
this office or left with the guard at the front desk. If you have
not provided a pre-addressed airbill per the above instructions, we
may not be able to honor a telephone request made on the day your
case is decided for a copy of the decision.
* * *
The Court regrets that facilities for sending opinions via

telefax are not available. Instructions and further information
may be obtained from this office.
February 20, 2008
Connors & Vilardo, LLP Robert H. Tembeckjian, Esq.

Attn: Terrence M. Connors, Esq. State Commission on Judicial Conduct
1000 Liberty Building 61 Broadway, 12th Floor
424 Main Street New York, New York 10006
Re: Matter of Hon. Robert M. Restaino
Dear Counselors:
The Court has scheduled this matter for argument on Tuesday, April 22, 2008 at
2:00 p.m.
The briefing schedule previously set is now final, and the due dates are the dates
by which the briefs must be received by the COlIrt and by opposing counsel.
After a matter is calendared, only the Court may grant an adjournment of the
argument date. Requests for adjournment of a calendared appeal are not favored and will
be granted only in limited circlImstances. A party seeking an adjournment shall contact
the Clerk's office immediately by telephone and follow up with a letter addressed to the
Clerk of the Court, with proof of service of one copy on each other party. The letter shall
state why the adjournment is necessary, "why submission on the brief filed and having
substitute counsel argue are not viable alternatives, and opposing counsel's position on the
request.
Questions may be directed to either Susan Dautel at (518) 455-7701 or James

Costello at (518) 455-7702.
Very truly yours,
Stuart M. Cohen
SMC//ai
NEW YORK STATE
EMPIRE STATE PLAZA
ADMINISTRATOR& COUNSEL DEPUTY ADMINISTRATOR
TELEPHONE FACSIMILE
LITIGATION
February 25, 2008

New York State Court of Appeals
20 Eagle Street
Re: Matter of Honorable Robert M. Restaino
Attn: Susan Dautel, Assistant Deputy Clerk
Dear Ms. Dautel:
This letter confirms our conversation earlier today in which the Court granted
my request for a two-day extension to file the Commission's brief in the above-
referenced case. As I indicated in our telephone conversation, Vincent Doyle, III,
counsel for Judge Restaino, does not object to this brief extension of time.
The Commission will file its respondent's brief on Friday, February 29th. I
have agreed to e-mail a copy of the brief to Mr. Doyle on that day, and to serve
three copies by mail for delivery on Monday, March 3rd. Judge Restaino's reply
brief will be due on March 10, 2008.
I appreciate the Court's consideration, and the courtesy extended by counsel.
£ww---
Edward Lindner
Deputy Administrator for Litigation
cc: Vincent E. Doyle, III, Esq.

424 Main Street
Sent Via Fax: 716-852-5649

NEW YORK STATE
EMPIRE STATE PLAZA
TELEPHONE FACSIMILE
L!TIGAT/ON
February 29, 2008

Clerk of the Court
Court of Appeals
20 Eagle Street
Re: Matter ofRobert M. Restaino v. Commission on Judicial Conduct
Dear Mr. Cohen:
Enclosed please find one original and ten copies of Respondent

Commission's Brief to the Court in this matter, and an affidavit of service upon
Petitioner's counsel, Terrence M. Connors and Vincent E. Doyle III.
Very truly yours,
L~~
Edward J. Lindner
Deputy Administrator
Enclosures
cc: Terrence M. Connors, Esq.

To Be Argued By
Edward Lindner
Time Requested: 15 Minutes
Qtnurt nf 1\pprals
nf tqr
~tatr nf Nrm l'nrk
In the Matter of the Request of the

HONORABLE ROBERT M. RESTAINO,
A Judge of the Niagara Falls City Court, Niagara County,
Petitioner,
For Review of a Determination of the

Respondent.
BRIEF FOR RESPONDENT STATE

ROBERT H. TEMBECKJIAN
Counsel for Respondent State
61 Broadway
212-809-0566
Of Counsel:
Edward Lindner
John J. Postel

TABLE OF CONTENTS
TABLE OF AUTHORITIES 111
PRELIMINARY STATEMENT I
PROCEDURAL HISTORY
A. The Pleadings 3
B. The Hearing 4
C. Referee's Report 5
D. The Commission's Determination 6
E. Petitioner's Request for Review by This Court 8
F. Amici Curiae 8
FACTS
A. The Niagara Falls City Court Domestic Violence Part 10
B. Proceedings on March 11, 2005 12
C. Forty-Six Defendants Are Incarcerated 19
D. Release of the Defendants Who Could Not Make Bail 21
E. Testimony of Petitioner 21
F. Testimony of Petitioner's Expert Witnesses 24
ARGUMENT
Point I
Petitioner Committed Egregious Misconduct When He 26

C[apriciously Committed 46 People To Police Custody,
Knowing He Had No Legal Authority To Do So
- 1-
A. Petitioner Sent 46 Defendants to Jail Knowing He 28
Lacked Legal Authority To Do So
B. Petitioner Collectively Punished 46 Individuals 30

Despite Knowing That Most Were Not Guilty of the
Act He Sought to Condemn
C. Petitioner Inappropriately Used a Program Sanction to 34

Punish Conduct That did not Violate Domestic
Violence Program Requirements
D. Petitioner Aggravated his Misconduct By Making 35

Demeaning Remarks to Defendants and Failing to
Correct His Error Until the Court Received Press
Inquiries
Point II
Petitioner's Claim That He Acted Out Of "Displaced" 36

Marital Frustration Is Insufficient Mitigation, Where His
Own Wife Was Unaware Of The Problem and His Own
Psychiatrist Was Unable To Say Why He Acted As He
Did
A. Mental Health Defenses May Be Taken into Account For 37

Purposes of Determining the Sanction
B. Petitioner's Claim of "Displaced" Marital Frustration Is 40

Insufficient to Excuse His Conduct or Mitigate His
Sanction
POINT III
The Appropriate Sanction Is Removal 44
CONCLUSION 48
- 11 -
STATUTES
CPL §510.30 2, 18,27,28
Judiciary Law §44(7) 8
RULES GOVERNING JUDICIAL CONDUCT
§100.1 4,5
§100.2(A) 4,5,27
§100.3(B)(l) 4,5,27
§100.3(B)(3) 4,5,27
§100.3(B)(6) 4,5
CASES
Aldrich, Matter of, 58 NY2d 279, 281-82, 283, 284 (1983) 38,39
Bauer, Matter of, 3 N.Y.3d 158, 160-61 (2004) 29,44
Blackburne, Matter of, 7 NY2d 213 (2006), 7 NY3d 213, 219, 8,45,46
220, n3 (2006)
People v. Byrne, 77 NY2d 460, 466 (1991) 32
Glavin v. Restaino, 210 Fed. Appx. 122, 2006 WL 3826655 7

(2d Cir. 2006)
Hessel v. O'Hearn, 977 F 2d 299, 305 (7th Cir. 1992) 32
Kelso, Matter of, 61 NY2d 82, 86, 87, 88 (1984) 37,39
LaBelle, Matter of, 79 NY2d 350, 359-62, 363 (1992) 46
111
Mardikian, Matter of, 40 Cal3d 473, 485, 709 P2d 852, 859 42
(1985)
Mills, Matter of, 2005 Annual Report 185 (Cornn. On Jud. 46

Conduct, Dec. 6, 2004)
Quinn, Matter of, 54 NY2d 386, 394-95 (1981) 37,38
Sardina, Matter of, 58 NY2d 286, 289-90, 292 (1983) 28-29, 35, 44
OTHER AUTHORITIES
African Charter on Human and Peoples' Rights, Article 7 32

(1986), O.A.U. Doc. CAB/LEG/67/3 Rev. 5, available
at wwwl .umn.edu/humanrts/instree/zl afchar.htm
American Convention on Human Rights, Article 5(3) (1978), 32

1144 U.N.T.S. 123, available at wwwl.umn.edu/
humanrts/oasinstr/zoas3con.htm
American Psychiatric Association, Can a Treating Psychiatrist 42

Double as a Forensic Expert for the Same Patient,
Psychiatric News, August 20, 2004, Volume 39,
Number 6, p. 16
Richard Boldt & Jana Singer, Juristocracy in the Trenches: 40

Problem-Solving Judges and Therapeutic Jurisprudence
in Drug Treatment Courts and Unified Family Courts,
65 Md. L. Reb. 82, 90 (2006)
Robyn Mazur & Liberty Aldrich, What Makes a Domestic 31

Violence Court Work?: Lessons from New York, 42
A.B.A. 5, 9 (Spring 2003) available at
www.courtinnovation.org/_uploads/documents/
whatmakesdvcourtwork.pdf
New York State Unified Court System, Domestic Violence 11

Court System, available at www.courts.state.ny.us/
courts/problem_solving/dv/home.shtml
IV
New York State Unified Court System, Domestic Violence 31
Courts, Key Principles, available at www.nycourts.gov/
courts/problem_solving/dv/key_principles.shtml
Regulations annexed to Convention IV Respecting the Laws 32

and Customs of War on Land, signed at The Hague,
Article 50, Oct. 18, 1907 (the 1907 Hague Conventions)
available at www.yale.edu/lawweb/avalon/lawofwar/
hague04.htm#art50
L.H. Strassberger, M.D., et. al, On Wearing Two Hats: Role 42,43
Conflict in Serving as Both Psychiatrist and Expert
Witness, American Journal of Psychiatry, April 1997,
p.448,451,453
Statute of the International Criminal Tribunal for the 32

Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian
Law Committed in the Territory of Rwanda, Article
4(b)(1994) U.N. Doc. S/Res/955 available at
www2.ohchr.org/English/law/itr.htm
v
This Brief is submitted on behalf of respondent New York State
Commission on Judicial Conduct ("Commission") in support of its
Determination dated November 13, 2007, that the Honorable Robert M. Restaino
("petitioner") should be removed from office for having engaged in egregious
judicial misconduct (4-31). 1
The uncontradicted evidence at the hearing established that petitioner
committed 46 separate acts of judicial misconduct when, in a single court session
lasting over one and one-half hours, he systematically revoked or denied the
release on recognizance status of 46 men and women, one by one, because some
unknown person allowed a cell phone to ring in the courtroom. At the time
petitioner committed these men and women to the custody of the Niagara Falls
Police Department, he knew that each of them was entitled to release on
recognizance status. Indeed, most of these defendants had been on recognizance
release for a number of weeks, and - at the time the cell phone rang - petitioner
had already granted recognizance release that morning to eleven of the
individuals he later incarcerated. Petitioner conceded at the hearing that he had
no legal basis on which to commit these 46 defendants to police custody and that
1
Numbers without prefix refer to the three-volume Record on Review filed by petitioner's
counsel. The letter "P" followed by a number refers to pages of petitioner's brief to this
Court.
he set bail without considering any of the factors required by Section 510.30 of
the Criminal Procedure Law.
Petitioner held these 46 individuals collectively responsible for an
individual breach of courtroom etiquette, despite conceding that the offending
cell phone might have belonged to a court officer, or to one of the lawyers or
program counselors also present in the courtroom. Although neither petitioner
nor his court officers could locate the source of the ringing sound, petitioner held
these 46 men and women collectively responsible for their inability to provide
that same information.
Over the course of an hour and a half, petitioner made 46 separate
determinations to commit these individuals into custody based upon only one
factor - whether the defendant could tell petitioner the source of the ringing
sound. Petitioner ignored the unique hardship that even brief incarceration
would impose on individuals who risked loss of employment, or had doctor's
appointments, college classes or hospitalized relatives. Petitioner mocked the
defendants as a group, describing the scene in his courtroom as a "mob movie"
and ludicrously comparing the defendants to members of an organized crime
family observing a code of silence.
In all of this, petitioner purposefully and methodically denied 46
defendants an individualized bail determination based on the required statutory
-2-
factors and an assessment of each defendant's own culpable conduct. In
revoking or denying defendants recognizance release status without legal basis,
he deprived them of their fundamental constitutional right to be free of unjust
imprisonment. His argument in mitigation - that he was acting out "displaced"
marital frustration - is wholly insufficient to excuse his egregious misconduct,
especially where his own psychiatrist could not explain why he acted as he did,
and his spouse was unaware of the alleged marital difficulties. As is set forth
more fully below, it is respectfully submitted that petitioner's conduct was
prejudicial to the administration of justice, brought disrepute to the judiciary and
the courts and should result in his removal from judicial office.
PROCEDURAL HISTORY
A. The Pleadings
Pursuant to the Commission's authorization, petitioner was served with a
Formal Written Complaint, dated June 20, 2006, and a revised Formal Written
Complaint, dated June 29, 2006 (35-42). The single charge alleged that on
March 11, 2005, while presiding over proceedings in Domestic Violence Part,
petitioner threatened to commit to jail and did revoke the recognizance release
status of 46 defendants after he heard a ringing cellular telephone that he
-3-
assumed, without knowledge or proof, belonged to one of those defendants (37-
41).
Petitioner's conduct is alleged to have violated Sections 100.1, 100.2(A),
100.3(B)(l), 100.3(B)(3) and 100.3(B)(6) of the Rules which, inter alia, require
a judge to observe high standards of conduct; be faithful to the law; treat
defendants with patience, dignity and courtesy; and accord to defendants the
right to be heard according to law (38-39).
Petitioner's Verified Answer, dated August 9, 2006, admitted the
allegations in Charge I, but denied that his actions constituted misconduct (43-
44).
B. The Hearing
The Commission designated the Honorable Edgar C. NeMoyer to hear and
report findings of fact and conclusions of law (45). Hearings were held on
November 1, 2006, November 2, 2006, and November 15, 2006, in Buffalo, New
York (55-997). Counsel to the Commission called 10 witnesses and introduced
49 exhibits into evidence (998-1256). Petitioner testified on his own behalf,
called 15 witnesses and introduced 12 exhibits into evidence (1257-1293).
-4-
C. The Referee's Report
The Referee filed his two-page report to the Commission on March 30,
2007. The Referee sustained the factual allegations in the Formal Written
Complaint and concluded as a matter of law that petitioner violated Sections
100.1, 100.2(A), 100.3(B)(l), 100.3(B)(3) and 100.3(B)(6) of the Rules (1511-
1513). The Referee made no discrete and separately numbered findings of fact
or conclusions oflaw (1511-1512).
The hearing evidence established that on March 11, 2005, while presiding
in the Domestic Violence Part of the Niagara Falls City Court, petitioner heard
an electronic noise from a device like a cell phone. Petitioner told the defendants
present that their bails would be revoked unless the source of the noise was
identified ( 1511 ). The referee found that when the source of the noise was not
identified, petitioner revoked bail for all the defendants 2 without considering any
of the factors required by the Criminal Procedure Law (1511).
Petitioner then sent the 46 people into the custody of the Niagara Falls
Police Department Jail (1512). Thirty-two of those defendants were released
2
The Referee is mistaken in several particulars. Of the 46 people petitioner sent into custody
on March 11, 2005, only two had bail revoked. The remaining 44 defendants were previously
on recognizance release, which petitioner revoked when they individually failed to identify the
source of the sound. Fourteen of those defendants were unable to post additional bail and
were transported to the Niagara County Jail. Additionally, petitioner permitted two
defendants to continue on recognizance release, despite their inability to identify the source of
the sound.
-5-
from custody after posting bail (1512). The remaining 14 defendants could not
post the bail set by petitioner and were handcuffed, leg shackled and committed
to the county jail (1512). They were released at 5:30 p.m. and left outside the
county jail without transportation, a half-hour's drive from the court (1512).
The Referee noted in his Report that petitioner had expressed remorse for
his conduct and that in the opinions of petitioner's psychiatrist and psychologist
it was "not likely" that he would commit the same misconduct (1512).
D. The Commission's Determination
On November 13, 2007, the Commission issued its determination,
holding that
In an egregious and unprecedented abuse of judicial power,

[petitioner] committed 46 defendants into police custody in a
bizarre, unsuccessful effort to discover the owner of a ringing
cell phone in the courtroom. In doing so, he inexplicably
persisted in his conduct over some two hours, questioning the
defendants individually about the phone before committing
them into custody, and ignoring the pleas of numerous
defendants who protested that his conduct was unfair and
pleaded that he reconsider. [Petitioner's] conduct ... caused
irreparable damage to public confidence in the fair and proper
administration of justice in his court (13-14).
The Commission found that petitioner "acted without any semblance of a
lawful basis" and that his conduct "violated the trust of the defendants and of the
public at large" and "did a grave injustice to the Domestic Violence Part, its
principles and its worthy aims" (12). The Commission noted
-6-
[i]t is sad and ironic that even as [petitioner] was scolding the
defendants for their behavior, in a court where trust and personal
accountability were of paramount importance,[petitioner's] own
irresponsible behavior provided a poor example of such
attributes (17).
The Commission found "no mitigating circumstances" (18). Given the
"undisputed" fact that petitioner "took no steps to arrange for the defendants'
release until he learned the press was inquiring," the Commission declined to
credit petitioner for "timely remorse or sensitivity to his ethical responsibilities"
(18). The Commission also found that the stress in petitioner's personal life
"cannot excuse his behavior" (18). 3
Commission Chair Raoul Felder dissented as to sanction, arguing that
petitioner's conduct was "a single res gestae - two hours of viral lunacy" out of
his entire professional life (26). He contended that a public censure "would
undoubtedly have a deleterious effect" on petitioner's judicial career, and argued
that "it should be up to the public, who elected [petitioner] to serve in his
community, to decide when he is up for re-election to decide whether he should
remain on the bench"(29).
3
Several of the defendants sued petitioner for deprivation of their constitutional rights. The
United States Court of Appeals for the Second Circuit dismissed the suit on the ground of
judicial immunity. See Glavin v. Restaino, 210 Fed. Appx. 122, 2006 WL 3826655 (2d Cir.
2006).
-7-
Commission Member Richard Emery filed a concurring opinion
responding to the dissent (21-23), arguing that the facts of this case are
indistinguishable from those in Matter ofBlackburne, 7 NY2d 213 (2006).
E. Petitioner's Request for Review by This Court
Petitioner requested review by this Court of the Commission's
determination pursuant to Judiciary Law Section 44(7) by letter dated December
6, 2007 (3). Petitioner filed a brief and the Record on Review on or about
January 28, 2008.
F. Amici Curiae
On or about February 1, 2008, a joint amicus curiae brief was filed with
this Court on behalf of the Niagara Falls Boys' & Girls' Club, Inc., Niagara Falls
Library, Niagara Ministerial Council, PLWW Crime Watch Block Club

4
Coalition, Niagara Falls Block Club Council, Niagara Catholic High School.
this Court on behalf of the Bar Association of Niagara County, Niagara Falls Bar
Association, Lockport Bar Association, Community Missions of the Niagara
4
References to pages of this amicus curiae brief will be in the form "BGC" followed by a
page number.
-8-
Frontier, Inc., Niagara County Legal Aid Society, and the Bar Association of the
Tonawanda. 5
On or about February 6, 2008, an amicus curiae brief was filed with this
Court on behalf of New York State Association of City Court Judges. 6
this Court on behalf of Mary Ann Oliver, Esq., Matthew T. Weber, Esq., W.
Maxwell Coykendall, Esq. and the Landlords' Association of Greater Niagara. 7
Court on behalf of Daniel T. Lukasik, Esq. as administrator of Lawyers with
Depression. 8
this Court on behalf of the City of Niagara Falls Police Department, Niagara
Falls Police Club, and Niagara Falls Captains and Lieutenants Association. 9
5
References to pages of this amicus curiae brief will be in the form "BANC" followed by a
page number.
6
References to pages of this amicus curiae brief will be in the form "CCJ" followed by a page
number.
7
References to pages of this amicus curiae brief will be in the form "Oliver" followed by a
page number.
8
References to pages of this amicus curiae brief will be in the form "LWD" followed by a
page number.
9
References to pages of this amicus curiae brief will be in the form "NFPD" followed by a
page number.
-9-
Court on behalf of the Phi Alpha Delta Law Fraternity, International. 10
this Court on behalf of the Family and Children's Service of Niagara, Inc.,
Elizabeth Brady and Jennifer Hall. 11
this Court on behalf of the Niagara County Public Defender's Office, the Niagara
County Conflict Defender's Office and David Gerald Jay, Esq. 12
Court on behalf of the City of Niagara Falls. 13
FACTS
A. The Niagara Falls City Court Domestic Violence Part
Domestic Violence Courts were created to address the underlying causes
of domestic abuse by diverting defendants charged with certain violent offenses
out of local criminal courts and into a court-supervised program of counseling
10
References to pages of this amicus curiae brief will be in the form "PAD" followed by a
page number.
11
References to pages of this amicus curiae brief will be in the form "FCS" followed by a
page number.
12
References to pages of this amicus curiae brief will be in the form "PDO" followed by a
page number.
13
References to pages of this amicus curiae brief will be in the form "NF" followed by a page
number.
- 10 -
and education (682-85). 14 Defendants are initially arraigned in criminal court
and then screened to determine if they are eligible to participate in the program
(682-83). If accepted, participants are required to complete a 26-week course of
counseling, to refrain from using drugs or alcohol, to appear on time for every
scheduled class and to be in court each time they are directed to be there (684-
85).
Cases in the Niagara Falls City Court Domestic Violence Part were
typically adjourned from week-to-week while the defendant completed
counseling (97). On each return date, the defendant was called to the bench and
the Assistant District Attorney reported whether the defendant had attended
counseling (98-99). Petitioner then talked to the defendant about his or her
progress and, if satisfied that the defendant had complied with program
requirements, adjourned the case to the following week (98-99). Unless
specifically excused, petitioner required each defendant to remain in the
courtroom until the conclusion of all defendants' cases (173-74, 685).
Petitioner typically released program participants on their own
recognizance (687). If a defendant failed to comply with the program in some
14
A more detailed description of the Domestic Violence Court system is available online at:
http://www.courts.state.nv.us/courts/prob !em solving/dv /home.shtml
- 11 -
respect, however, petitioner could sanction that defendant by revoking his or her
ROR status and imposing, or re-imposing, bail (685-86).
B. Proceedings on March 11, 2005
Petitioner commenced proceedings in the Domestic Violence Part of the
Niagara Falls City Court on March 11, 2005 between 9:00 and 9:15 a.m. (715,
998-1066).
The courtroom was crowded -- all eight rows of benches on each side of
the center aisle were filled ( 101, 179-181, 218-19, 715). Among those present
were defendants, court clerks, counselors from the drug and alcohol
rehabilitation programs and attorneys (95, 102, 104, 179-181, 218-19, 241, 998-
1066).
Petitioner presided routinely over the first 31 cases of the day (715-725,
832-833). 15 Two defendants -- Colleen Alsaid and Kimberly Lewis -- came
before petitioner, with counsel, for an initial appearance (999-1000, 1002-4).
Petitioner released both Alsaid and Lewis on their own recognizance and
directed them to wait in the courtroom until the rest of the calendar was
concluded (999-1000, 1002-4, 1219-21, 1210-13). An additional nine
defendants - Will Clark, Randy Carr, Bryan Calhoun, Darren Christian, Robert
15
For purposes of brevity and clarity, this brief will only address those instances of
petitioner's conduct that are relevant to deciding whether petitioner committed misconduct, or
- 12 -
Hinman, Terry Hamilton, Mark Glavin, Angelo Fiori, and Penny Boyea - made
their regularly scheduled re-appearance before petitioner and reported their
status. Petitioner gave each of those defendants a new return date, continued
their recognizance release and told them to remain in court until the completion
of the calendar (821-827, 829, 832, 1009, 1012-13, 1014, 1015, 1016, 1017,
1018, 1020-21, 1214-16, 1217-18, 1222-24, 1225-28, 1229-31, 1232-34, 1235-
37, 1238-46, 1247-49).
At approximately 10:00 a.m. (835), as Reginald Jones was approaching
the bench, a noise emanated from an electronic device in the back of the
courtroom, sounding like a ringing cell phone (177, 179, 219, 269, 725, 1021,
1038-39). As a matter of general practice in petitioner's courtroom, court
officers would confiscate a ringing phone and bring it to the bench, where
petitioner would hold it until court was adjourned (178, 726-27). In this case,
when the ringing sound was heard, petitioner announced to the courtroom:
Now, whoever owns the instrument that is ringing,

bring it to me now or everybody could take a week in jail and
please don't tell me I'm the only one that heard that (1021 ).
Petitioner made the reference to "a week in jail" because that was a typical
sanction for noncompliance with the Domestic Violence Program (728),
to the severity of the penalty. It will not recount petitioner's disposition with respect to every
defendant who appeared on the calendar on March 11, 2005.
- 13 -
although he was aware that possession of a ringing cell phone is not a violation
of the program's requirements (840).
Niagara Falls Police Lieutenant John Dougherty was working as court
security in petitioner's courtroom on March 11, 2005 (176-7). He heard the
phone ring, but was unable to locate its owner (178-80). He testified that at the
time the phone rang:
People were coming and going in and out of the courtroom, so

I really, I couldn't tell where exactly it was coming from (180).
Petitioner took a five-minute recess so that the court officers could secure
the phone (182, 730). As he left the bench, he instructed court officers to
prevent anyone from leaving the courtroom (182). The "nervous" and "upset"
defendants then engaged in a "loud conversation,'' urging the person who owned
the phone to come forward (183, 221, 302, 332, 366). No one admitted that they
owned the device (177-180).
During the recess, petitioner "paced a little bit" and inquired whether court
officers had located the instrument (844). He did not reconsider his threat to
send all of the defendants to jail if the phone was not recovered (844).
After returning to the bench, petitioner addressed all the defendants
generally and Jones in particular:
THE COURT: Everyone is going to jail; every single

person is going to jail in this courtroom unless I get
- 14 -
that instrument now. If anybody believes I'm kidding,
ask some of the folks that have been here for a while.
You are all going ... Mr. Jones, do you know whose
equipment was making that noise?
MR. JONES: No. I was up here.
THE COURT: Bail, one thousand five hundred

dollars. Mr. Jones, March 18 (1020-22).
At the time he revoked Jones' recognizance release and set bail, petitioner
knew that Jones did not own the ringing phone and that he had no legal basis for
committing Mr. Jones into police custody (734, 848-49, 855). Jones was
escorted by the police to the booking center where his property was taken from
him, his photograph was taken and he was placed in a cell which eventually was
filled with about seven other men (272-73).
After sending Jones into custody, petitioner presided over 34 cases in
which defendants appeared before him to report on their status; none of those
defendants acknowledged ownership of the phone or identified the owner (1023-
51). Petitioner revoked the recognizance release status of 32 of those defendants
and set bail, notwithstanding that each of those 32 defendants had regularly
appeared in court and had been granted recognizance releases on prior occasions
(1023-51, 1082-1121, 1124-1213). Petitioner also increased bail for two other
defendants - Philip Payne and Nathaniel Morris - who were previously released
- 15 -
on bail (1033-34, 1053, 1058, 1122-23, 1250-52). Petitioner then sent all 34 16
defendants into custody (1023-51, 1082-1213, 1250-52). As with Jones,
petitioner knew he had no legal basis for committing these 34 defendants to
police custody (734).
In course of calling each defendant to the bench, inquiring about the phone
and setting bail, petitioner made a number of comments indicating that he
understood it was unfair for all defendants to face jail for the actions of one
unknown person. Petitioner told Guillermo Martinez:
As I have indicated, this troubles me more than any of

you people can understand. Because what I am really,
really having a hard time with, that someone in this
courtroom who is so self-absorbed, so concerned only
for their own well-being, they kind of figure they're
going to be able to establish the bail and it won't matter
so screw all of the rest of you people. Some of you
people may not be in the economic situation this selfish
person is in and you have to start realizing amongst
your own selves someone out there who is the typical
reason we have this Part; they put their interests above
everybody else's. They don't care what happens to
anybody (1028).
16
Eddie Knighton, Kevin Lafreniere, Jesus Loya, Richard Malaney, Guillermo Martinez,
Joseph McCarthy, Orlando McClain, Damien Miles, Derico Mitchell, Darrell Moyer,
Marcellus Overton, Philip Payne, Jared Porter, Edward Primerano, Jeffrey Rivers, Adrian
Rivers, Bruce Roberts, John Rubino, Maurice Sanders, Shane Sayer, Michael Scalzo, Adam
Schroeder, Ronald Sconiers, Martha Seaberry, Morris Shavers, Benjamin Smith, Lavon Smith,
Henry Smith, Willie Stalling, Kevin Thomas, Dedrick Williams, Cynthia Williams, Brian
Winkler and Nathaniel Morris.
- 16 -
When Martha Seaberry told petitioner she couldn't afford to go to jail, he
replied, "That's really a shame and it isn't fair at all" (1044). Petitioner also
expressed frustration that none of the defendants could identify the owner of the
cell phone. He told Kevin Thomas:
The other thing which is amazing here with this group,

this is better than watching a mob movie. Everybody
that comes to this microphone, and I got to tell you
something, you're all pretty good, when you come up
to this microphone, and if you saw somebody got shot
or killed, you would say, "I didn't see nothing. I heard
shots." And if a body dropped right in front of you,
you would say that, "I didn't see a thing (1047- 48).
Petitioner ignored the special circumstances of numerous defendants who
asked for leniency because the arbitrary nature of petitioner's actions left them
unprepared:
• Edward Primerano had a doctor's appointment that day in

anticipation of surgery the next day ( 103 5);
• Benjamin Smith, John Rubino and Shane Sayer each explained that
their job would be at risk if they were incarcerated (1036-37, 1045);
• Ronald Sconiers' mother was in surgery on the morning of March

11th, and Mr. Sconiers asked to be released so he could go to the
hospital and then attend a church function with his wife (1043-44);
• Henry Smith was scheduled to have visitation with his "little girl" at
3:00 that day and asked to be sanctioned the next week (1045-47);
• Jesus Loya explained that his transportation from the court was with
an elderly couple (1025-26);
- 17 -
• Guillermo Martinez explained that he was scheduled to be in school
(1027-28).
Despite these individual hardships, petitioner revoked or denied recognizance
release and set bail in every one of these cases.
After committing Mr. Jones and the 34 subsequent defendants into the
custody of the Niagara Falls Police Department, petitioner re-called the 11
defendants 17 who appeared before him prior to the ringing sound and whom he
had earlier released on their recognizance (1051-58). Petitioner asked each of
them if they could identify the source of the ringing sound; when none did so,
petitioner revoked their recognizance release and set bail (1051-58, 1210-1249).
Petitioner then sent all 11 of these defendants into custody (1051-58, 1210-
1249).
When petitioner set bail for these 46 defendants, he did not consider any
of the factors required by Section 510.30 of the Criminal Procedure Law (848-
49, 855). Petitioner assumed that none of the defendants had the money to post
bail (743).
Petitioner concluded proceedings sometime between 11 :30 and 11 :45
(789). The entire process - from the moment petitioner heard a ringing
17
Will Clark, Randy Carr, Bryan Calhoun, Darren Christian, Robert Hinman, Terry Hamilton,
Mark Glavin, Angelo Fiori, Penny Boyea, Kimberly Lewis and Colleen Alsaid.
- 18 -
electronic device until he set bail for the last defendant - took nearly two hours
(789, 835).
C. Forty-Six Defendants Are Incarcerated
After being ordered into custody by petitioner, each of the 46 defendants
was taken by armed Niagara Falls Police Officers into the Niagara Falls City Jail
(183, 185, 187, 208-210, 234-235, 306-08). The defendants were brought into
the booking area, where they were searched and their property was confiscated
(235, 272, 309-310).
As many as 15 defendants at a time were placed in a 6 foot by 10 foot
"holding" cell designed to hold only 6 people (231-32, 306-308, 638-39). Other
defendants were placed directly in jail cells (338-39, 368-69). As many as 10
defendants were held in jail cells designed to hold only one or two defendants
(232, 272-273, 309-310, 338-339).
After being held in jail for up to three and a half hours, 15 defendants 18
were able to post the new bail imposed by petitioner and were released (111-13,
1082-84, 1096-98, 1102-06, 1111-13, 1126-28, 1145-48, 1152-58, 1167- 88,
18
Eddie Knighton, Richard Malaney, Joseph McCarthy, Orlando McLain, Derico Mitchell,
Edward Primerano, Maurice Sanders, Michael Scalzo, Martha Seaberry, Morris Shavers,
Benjamin Smith, Kimberly Lewis, Darren Christian, Mark Glavin and Lavon Smith.
- 19 -
1210-13, 1225-28, 1235-37). Seventeen defendants 19 were released after court
personnel determined that the court still held previously posted, but unreturned,
bail (122-26, 131, 137-38, 1107-10, 1114-17, 1124-25, 1132-44, 1189-93, 1205-
09, 1214-21, 1247-52).
Fourteen defendants could not post bail and were committed to the
custody of the Niagara County Sheriff (1079-81, 1085-1095, 1099-1101, 1129-
31, 1149-51, 1159-66, 1194-1204, 1222-1224, 1229-34, 1238-46). Reginald
Jones, Kevin Lafreniere, Jesus Loya, Guillermo Martinez, Jeffery Rivers, Shane
Sayer, Adam Schroeder, Ronald Sconiers, Kevin Thomas, Dedrick Williams,
Bryan Calhoun, Robert Hinman, Terry Hamilton, and Angelo Fiori were placed
in leg shackles, had their wrists cuffed to a lock box attached to a waist chain and
were transported on Niagara County Sheriffs Department buses to the county
jail (235, 242, 275, 310, 339-40, 370, 382-83). After a 30-minute ride with
armed guards, those 14 defendants were unloaded at the jail in a secure sally port
sometime between 3:00 and 3:30 p.m. (261-62, 265-66, 311, 339-41, 1253-56).
Each defendant was searched and placed in a windowless holding cell with a
metal door and bench (244, 276-77, 311-12).
19
Damien Miles, Darrell Moyer, Marcellus Overton, Phillip Payne, Adrian Rivers, Bruce
Roberts, John Rubino, Henry Smith, Willie Stalling, Cynthia Williams, Brian Winkler, Will
Clark, Randy Carr, Colleen Alsaid, Penny Boyea, Nathaniel Morris and Jared Porter.
- 20 -
D. Release of the Defendants Who Could Not Make Bail
At the conclusion of the Domestic Violence Part, petitioner left the bench
and made a scheduled visit with a co-judge to a juvenile detention facility in Erie
County (790). While on tour, petitioner was paged by his Chief Court Clerk and
informed that the press was inquiring about his actions (791, 969-70). Petitioner
told the clerk that he would return to court and that she should have the
paperwork and a court reporter ready to order the release of the defendants (791,
970). 20 When petitioner returned to court around 3:00, he did not immediately
seek to ascertain the status of the defendants (970, 972-73). At 4:15 PM,
petitioner held a proceeding in his chambers and ordered the release of 14
defendants who had been sent to the county jail (791, 972, 1062-66).
Sometime before 6:00 p.m. (259-60), the defendants were released,
without transportation to make the one-half hour car ride from the county jail in
Lockport back to Niagara Falls (278-80, 312-313, 372-373).
E. Testimony of Petitioner
Petitioner was admitted to the New York State Bar in 1986 and worked as
an Assistant Public Defender (675-76). He became a part-time Niagara Falls
20
Petitioner testified that he "began to believe" he should release the defendants while still
touring the youth facility (790-91). The Commission found no independent evidence for this
assertion (18). Noting that it is undisputed that petitioner took no action until after he spoke
with the court clerk and learned of the press inquiry, the Commission declined to credit
petitioner for a timely response (18).
- 21 -
City Court Judge in 1996 (676). In January 2002, petitioner became a full-time
City Court Judge (678-79). In 1999, petitioner was assigned to the Domestic
Violence Part (680-81). He sat in that part until March 2005 (681).
Petitioner testified that, as a matter of practice, he released defendants in
Domestic Violence Part on their own recognizance unless they violated a
condition of participation, such as attending counseling and refraining from
alcohol and drug usage (684-86). He acknowledged that it was not a violation of
program guidelines to permit one's cell phone to ring in the courtroom (840).
Petitioner conceded that he had no way to know who owned the cell phone
that rang in his courtroom, and that it could have belonged to one of the court
officers, attorneys or counselors who were present in court (842). He said he
became frustrated when no one took responsibility (729-730), but acknowledged
that throughout the proceedings, his tone, volume, and manner were normal
(865-66).
Petitioner agreed that he ignored the pleas of numerous defendants who
told him that his actions were not right or who raised hardships (760-61, 764-66,
773-76, 889-91, 900-02, 904-06, 914-15, 922-23). He conceded that his
comment that " ... this is better than watching a mob movie" was disrespectful
and inappropriate (778, 927).
- 22 -
Petitioner said he was aware of the unpleasant conditions in the police
lock-up to which he was sending the defendants (932-35).
Petitioner attributed his decision to commit 46 defendants to jail - without
legal cause - to problems in his marriage (977). In early 2003, petitioner became
"unhappy" in his marriage and dissatisfied that his marriage did not emulate his
parents' marriage (985-86). Petitioner talked with his wife about his
dissatisfaction, but she did not "get on the same page" (991 ). Petitioner's wife
told him that she was not experiencing problems and that she believed they had a
happy 23-year marriage (992).
Petitioner could not identify any specific event that led to his marital
problems (985-86). He acknowledged that there was no change in his marital
relationship on March 11, 2005 - petitioner had no major disagreement with his
wife on that day, and there was no specific event between them on that or the
prior day that was troubling him (803-05, 833-34).
Petitioner testified that he did not experience any violence in his marriage,
or in his home life growing up, and that he continued to be close with his parents
(981, 983). He acknowledged that his marital relationship continued to include
sexual intimacy (992). He said that he had no alcohol or substance abuse
problems and petitioner had a good relationship with his two children (710-11 ).
- 23 -
Petitioner believed that he had created a loving and stable family environment
(985).
F. Testimony of Petitioner's Expert Witnesses
, M.D., a psychiatrist and certified Forensic Psychologist, and
PhD., a psychologist, testified on behalf of petitioner (385-
499). Both Dr. and Dr. were each initially contacted by
petitioner's counsel about the events on March 11, 2005, before they met with
petitioner (416-17, 475-76).
Dr. met with petitioner three times and once with petitioner's wife
(393, 399). 21 He testified that petitioner was experiencing stress on March 11,
2005, as a result of an "emotionally estranged" marital relationship (397-98), but
could not identify any objective or quantifiable event within the marriage that led
to petitioner's feelings of strain (432, 446-47, 455). Mrs. Restaino told Dr.
that she "didn't have anything specific to complain about" in their
relationship (400), and said she was pleased that she and petitioner were able to
spend more time together after he became a judge (434 ).
In Dr. opinion, petitioner "displaced" marital frustration and
tension with his wife onto the Domestic Violence defendants in his courtroom on
March 11, 2005 (402-03). Dr. acknowledged that the Diagnostic and
- 24 -
Statistical Manual of Medical Disorders, Volume IV ("DSMIV"), the handbook
for his profession, does not identify "displacement disorder" (447, 449-51). Dr.
conceded in his direct testimony that he did not know why petitioner
acted as he did on that specific day (408), testifying that "if [he] had been a fly
on the wall in the courtroom, [he] might be able to answer that, but there's not
enough information to be able to say why [petitioner] did what he did on that
day" (409). Dr. concluded that petitioner does not suffer from any major
mental illness and he did not prescribe medication (411-12).
In his written assessment, Dr. found that petitioner "did not have a
psychiatric difficulty,per se, but suffered from a certain amount of marital
dysfunction, which has caused an adjustment disorder with mild depression"
(1272).
Dr. met with petitioner five times (465). He did not meet with
Mrs. Restaino and did not speak with anyone who was present in the courtroom
on March 11th (485, 494-95). He did not read the March 11th transcript until
"much later," after he prepared his written evaluation (490-91). Although Dr.
testified that March 11th was an "aberrant day" for petitioner (491-92),
he acknowledged that he had never observed petitioner in court and he did not
know what other behavior petitioner engaged in prior to March 11th (492).
21
At various places in his testimony, Dr. mistakenly refers to Diane Restaino as "Donna." See, e.g. 410.
- 25 -
He conceded that "all the information [he] obtained and the complete
foundation" for his conclusions was information he received from petitioner
(496). Based on that information, he offered a diagnosis of "single episode
depression" (477-78).
ARGUMENT
POINT I
PETITIONER COMMITTED EGREGIOUS MISCONDUCT

WHEN HE CAPRICIOUSLY COMMITTED 46 PEOPLE TO POLICE
CUSTODY, KNOWING HE HAD NO LEGAL AUTHORITY TO DO SO
Petitioner's gross and repeated abuse of judicial power was prejudicial to
the administration of justice and renders him unfit to be a judge. There is simply
no place on the bench for anyone who would methodically and mercilessly abuse
his judicial power to deprive one innocent person after another of their liberty, in
a feckless yet unrelenting attempt to discover whose cell phone rang in the
courtroom. That he did so without compunction still shocks the conscience more
than two years later. His argument in mitigation - a marital problem so vague
that his own wife was unaware of it and his own psychiatrist could not say why
he acted as he did - suggests he cannot or will not accept responsibility for his
conduct.
- 26 -
Petitioner was obliged by the Rules Governing Judicial Conduct to
"respect and comply with the law," to "be faithful to the law and maintain
professional competence in it," and to be "patient, dignified and courteous" to
defendants and others with whom the judge deals in an official capacity.
Sections 100.2(A), 100.3(B)(l) and 100.3(B)(3) of the Rules. Petitioner failed to
uphold those standards when he committed 46 defendants into police custody,
knowing as he did so that he had no legal basis to revoke recognizance release
and had not complied with Section 510.30 of the Criminal Procedure Law.
Petitioner improperly used bail as a sanction for conduct that - at most -
constituted a breach of courtroom etiquette. He subjected 46 individuals to loss
of their liberty, despite the fact that only one of them could be guilty of the
conduct he sought to punish. He failed to individually consider the
circumstances of each defendant, some of whom faced loss of employment or
had medical appointments or family obligations. And despite ample time during
a protracted proceeding to recognize the fundamental injustice of his conduct,
petitioner did not correct his error and release the incarcerated defendants until
hours later, after he learned the press was inquiring about his behavior.
- 27 -
A. Petitioner Sent 46 Defendants to Jail Knowing He Lacked
Legal Authority To Do So
Petitioner conceded that at the time of the March 11, 2005 proceeding, he
knew that he lacked a legal basis to revoke or deny recognizance release and to
commit each of the 46 defendants into police custody (734, 848-49, 855).
Petitioner also acknowledged that he was an experienced jurist who knew at the
time that he was required to comply with Section 510.30 of the Criminal
Procedure Law before setting bail, and that he did not do so in any of these cases
(849, 855). Finally, petitioner conceded that he assumed that none of the
defendants had the money to post bail (743-44). The only logical conclusion
from these concessions is that petitioner: ( 1) intentionally denied 46 individuals
their fundamental statutory and constitutional rights, (2) knew while he was
doing it that it was wrong to revoke recognizance release and impose bail, and
(3) assumed that as a result of his actions, many, if not most, of these individuals
would not only be taken into custody, but would be incarcerated until their next
court date because they were unable to post bail. By any measure, petitioner's
actions constitute egregious misconduct.
In Matter of Sardino, 58 NY2d 286, 289-90 (1983) this Court condemned
a judge's misuse of bail, stating:
These court records also demonstrated that the petitioner

regularly abused his authority with respect to setting bail. In
- 28 -
most of the cases under consideration he arbitrarily required
defendants to post bail without inquiry or reference to the
statutory standards (CPL 510.30). His conduct and
statements at the time show that he was acting punitively with
little or no interest in the only matter of legitimate concern,
namely, whether any bail or the amount fixed was necessary
to insure the defendant's future appearances in court (CPL
510.30, subd 2, par [a]).
See also, Matter ofBauer, 3 NY3d 158, 160-161 (2004) (judge removed for,
inter alia, jailing defendants in lieu of bail without considering CPL 510.30
factors) .
As in Sardina and Bauer, the petitioner here set bail without any
consideration whether it was necessary to insure the defendant's future
appearance. Petitioner himself acknowledged it was his own general practice to
release defendants in Domestic Violence Part on their own recognizance unless
they violated a condition of participation (684-86). Petitioner knew that the
majority of the defendants he committed to custody on March 11, 2005 had
already appeared and re-appeared before him for a number of weeks while on
recognizance release (846-47, 1079-1252). Indeed, defendant Morris Shavers
had appeared as scheduled 25 times and was one week short of completing the
program when petitioner revoked his recognizance release and imposed bail
- 29 -
(915-917, 1170). Astonishingly, petitioner himself initially determined 11 22
defendants were eligible for release on recognizance at the beginning of the
calendar, only to arbitrarily reverse this hours-old determination and impose bail
on those same defendants after the cell phone incident occurred (779-82).
The punitive, unwarranted and repeated imposition of bail - particularly
where petitioner concedes he knew at the time he was acting outside the law -
requires his removal from judicial office.
B. Petitioner Collectively Punished 46 Individuals Despite Knowing

That Most Were Not Guilty of the Act He Sought to Condemn
Petitioner's blatant misuse of the power to set bail was misconduct
enough. He exacerbated that misconduct by revoking recognizance status for an
entire group of defendants, without knowing if any of them actually possessed
the ringing cell phone and despite the certain knowledge that nearly all of them
neither possessed the phone nor knew who did. In doing so, petitioner held these
46 defendants collectively responsible for the conduct of one unknown
individual.
Petitioner's assertion that he believed his imposition of "collective
punishment upon the Domestic Violence Court defendants ... was carrying out
22
Colleen Alsaid, Kimberly Lewis, Will Clark, Randy Carr, Bryan Calhoun, Darren
Christian, Robert Hinman, Terry Hamilton, Mark Glavin, Angelo Fiori, and Penny Boyea.
See, supra, pp. 12-13.
- 30 -
the concepts of the court" (P44) is deeply troubling. As petitioner must surely
know, his remarkable deviation from the principle of individual personal
responsibility for one's actions is completely antithetical to the aims of New
York's problem-solving courts. A key principle of domestic violence courts is
"offender accountability." See New York State Domestic Violence Courts, Key
Principles. 23 As one commentator noted:
It is common for ... the defendant in a domestic violence case

to believe that the victim brought the violence on herself. The
court can respond to this by making sure that defendants
understand that they are directly accountable to the judge for
their behavior towards the complainant and their compliance
with court orders.
Mazur and Aldrich, What Makes a Domestic Violence Court Work?: Lessons
from New York, 42 A.B.A 5, 9 (Spring 2003)(emphasis added). 24 Thus, in a
court designed to teach offenders that they are each accountable for their own
actions, petitioner demonstrated the contrary lesson: he held innocent program
participants accountable for the actions of some unknown other who may not
even have been in the program.
23
Available online at:
http://www.nycourts.gov/courts/problem solving/dv/key principles.shtml
24
Available online at:
http://www.courti n novati on .org/ uploads/doc uments/whatmak esdvcourtwork. pdf
- 31 -
Petitioner's attempt to normalize the concept of "collective punishment"
(P44, n4) by comparing his conduct to group sanctions sometimes imposed in
non-judicial settings, raises a significant question whether he yet understands the
gravity of his conduct. Whatever the supposed benefits of imposing group
sanctions against sports teams or military units, the imposition of collective
punishment in a criminal proceeding violates the
generally accepted premise in the criminal law that

individuals" 'must ... answer for their own acts, and stand
or fall by their own behaviour.' " People v. Byrne, 77
NY2d 460, 466 (1991 )(citation omitted). 25
Indeed, the notion of collective punishment is so far outside the legal mainstream
that its application is specifically proscribed in several international human rights

. 26
treaties.
25
The principle of collective punishment - as opposed to respondeat superior or other
common civil grounds for vicarious liability - is similarly unwelcome as a basis for
1
constitutional tort liability. See Hessel v. O'Hearn, 977 F 2d 299, 305 (7 h Cir. 1992) (noting
"happily" that the "principle of collective punishment" is not generally part of our law and that
"[p ]roximity to a wrongdoer does not authorize punishment").
26
See Article 5(3) of the American Convention on Human Rights, (1978), 1144 U.N.T.S.
123, available online at: http://wwwI.umn.edu/humanrts/oasinstr/zoas3con.htm; Article 7 of
the African Charter on Human and Peoples' Rights, (1986), O.A.U. Doc. CAB/LEG/67/3 Rev.
5, available online at: http://ww\vl.umn.edu/humanrts/instree/zlafchar.htm; Article 50 of the
Regulations annexed to Convention IV Respecting the Laws and Customs of War on Land,
signed at The Hague, Oct. 18, 1907 (the 1907 Hague Conventions), available online at:
http://www.vale.edu/law\veb/avalon/lawofwar/hague04.htm#art50; Article 4(b) of the Statute
of the International Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations oflntemational Humanitarian Law Committed in the
Territory of Rwanda, (1994) U.N. Doc. S/Res/955, available online at:
http://wvvw2.ohchr.org/english/lavditr.htm.
- 32 -
Here, there is no dispute that petitioner revoked or denied recognizance
release and set bail for defendants he actually knew did not have the cell phone.
Petitioner conceded that he committed Reginald Jones to jail even though he
knew Mr. Jones did not have the phone because Jones was standing in front of
him when the device sounded (836-837). Petitioner also acknowledged that he
knew that Mr. Overton was sitting in a different area of the courtroom than the
area where the cell phone rang (838), that he "did not disbelieve" Mr. Lafreniere
when Lafreniere told him he didn't have the phone (854-55), and that he didn't
even ask Mr. Martinez if he had the cell phone (803). Nonetheless, petitioner
revoked recognizance release and imposed bail for each of these defendants
(1024, 1027-28, 1032-33).
Petitioner's conduct is made worse by his concession that he did not know
if the ringing cell phone belonged to any defendant. Petitioner acknowledged
that the phone could have been owned by one of the many attorneys, court
personnel, security officers and counselors present in court that day, and that the
owner might well have left the courtroom before petitioner started holding one
defendant after another responsible (966-67). The very real possibility that none
of the defendants had the ringing phone, "[compounds] the appearance that
[petitioner's] actions were arbitrary and unjust" (18).
- 33 -
C. Petitioner Inappropriately Used a Program Sanction to
Punish Conduct That Did Not Violate Domestic Violence
Program Requirements
Petitioner testified that as part of the Domestic Violence Part program, he
generally revoked recognizance release status and imposed bail as a sanction for
failure to comply with program requirements such attending counseling sessions
(685-86). Petitioner acknowledged that the possession of a ringing cell phone in
court did not violate a condition of the Domestic Violence Program and was not
a basis for sanction (839-40). Thus, petitioner perverted a measure intended to
motivate defendants to attend counseling and deal with the issues underlying
their violent behavior into an arbitrary punishment imposed to sanction conduct
over which nearly all the defendants had no control.
In doing so, he showed disrespect not only for the defendants before him,
but for the Domestic Violence Court in which he served. As the Commission
found:
[i]t is sad and ironic that even as [petitioner] was scolding the
defendants for their behavior, in a court where trust and
personal accountability were of paramount importance,
[petitioner's] own irresponsible behavior provided a poor
example of such attributes. His conduct was injurious not only
to the defendants themselves, but to the public as a whole, who
expect every judge to act in a manner that reflects respect for
the law the judge is duty-bound to administer (17).
- 34 -
D. Petitioner Aggravated His Misconduct By Making
Demeaning Remarks to Defendants and Failing to Correct
His Error Until the Court Received Press Inguiries
Petitioner aggravated his misconduct by making demeaning and
disrespectful comments during the course of the proceedings. Petitioner
compared the defendants to characters in a "mob movie" (104 7), and suggested,
in a mocking tone, that they were all being untruthful:
Everybody that comes to this microphone, and I got to tell you

something, you're all pretty good when you come up to this
microphone, and if you saw somebody get shot or killed, you
would say, "I didn't see nothing. I heard shots". And if a body
dropped right in front of you, you would say that, "I didn't see a
thing" (1047-48).
Such remarks - which petitioner conceded were disrespectful and inappropriate
(778, 927)- exacerbated petitioner's misconduct. See e.g., Matter of Sardina,
supra, at 290, 292 (citing name-calling and dehumanizing remarks as element of
case for removal).
Petitioner further aggravated his misconduct by failing to correct it until he
learned that the press had inquired about his behavior. Ironically, although
petitioner went to tour a juvenile detention facility in Erie County after leaving
court, the penal setting did not give him pause to reconsider what he had done.
He took no steps to rectify his misconduct until he returned a call from his Chief
- 35 -
Court Clerk and learned that the press was inquiring about what had happened in
his courtroom (969-71 ). As the Commission found
Not until hours later that afternoon did [petitioner] arrange for
the release of the incarcerated defendants. Although he has
testified that he reached an independent realization that he had
acted improperly, it is undisputed that he took no steps to
arrange for the defendants' release until he learned that the
press was inquiring into his actions. By the time the 14
defendants were eventually released from the County Jail, they
had been in custody for six or seven hours. Under these
circumstances, we cannot give [petitioner] credit for timely
remorse or sensitivity to his ethical responsibilities (18).
POINT II
PETITIONER'S CLAIM THAT HE ACTED OUT

OF "DISPLACED" MARITAL FRUSTRATION IS
INSUFFICIENT MITIGATION, WHERE HIS
OWN WIFE WAS UNAWARE OF THE PROBLEM
AND HIS OWN PSYCHIATRIST WAS
UNABLE TO SAY WHY HE ACTED AS HE DID
Petitioner does not contest that his actions on March 11, 2005 constitute
misconduct (P2, 34). His sole argument is that he should not be removed from
the bench because his conduct resulted from a one-time episode of emotional
difficulty that he has now put behind him (P32-44).
Contrary to the claim made by petitioner (P34-35) and amici (LWD4-8;
CCJ5-8), the Commission did not "ignore" petitioner's claim that his misconduct
was caused by "displaced" marital frustration. Rather, the Commission
- 36 -
considered that claim and determined, on the merits, that"[ s]uch an explanation
cannot excuse his behavior" (18). As is set forth below, upon consideration of
the remarkably thin evidence in this record that petitioner suffered a serious
mental condition that explains his conduct, this Court should reach the same
conclusion.
A. Mental Health Defenses May Be Taken into Account

For Purposes of Determining the Sanction
There is no question that mental health defenses may be "taken into
account in fashioning the sanction." Matter ofKelso, 61 NY2d 82, 88 (1984). In
the 30 years since the creation of the Commission on Judicial Conduct, however,
this Court has had few opportunities to consider how proof that a judge suffers
from a mental disease or defect should be evaluated where the judge's conduct
would otherwise warrant a removal.
Traditionally, this Court has approached mental health defenses
cautiously. In Matter of Quinn, 54 NY2d 386 (1981 ), this Court considered
whether to remove a judge found guilty of multiple counts of driving while
intoxicated or impaired. The record amply supported the judge's claim that he
suffered from alcoholism, and the Court found that all or most of his misconduct
was a "manifestation of that illness" Quinn at 394. The Court held, however,
that "[a]s far as the petitioner's fitness for judicial office is concerned, his
- 37 -
alcoholism ... can provide no dispensation." Id. While the Court found it
imperative that the judge leave the bench, it did consider his disease in
determining "the method for terminating his services" - the Court censured the
judge and accepted his retirement for disability. Quinn at 394-95.
Two years later, in Matter ofAldrich, 58 NY2d 279 (1983), this Court
dispelled any notion that proof of alcoholism is sufficient to excuse conduct that
would otherwise compel a removal. In Aldrich, the petitioner: (1) appeared in
court under the influence of alcohol and used profane and racially-insensitive
language and (2) threatened a security guard with a hunting knife and arrived at a
hearing so intoxicated that he was unable to preside. Aldrich at 281-82. As one
dissenter noted, petitioner offered proof that he suffered from alcoholism and
that he had abstained from alcohol and participated in Alcoholics Anonymous
for two years prior to the Court's determination. Aldrich at 284. The majority
nonetheless held that removal was the appropriate sanction. Aldrich at 283.
Thus, while the Court considered alcoholism in both Quinn and Aldrich, it did so
only for the purpose of determining the method by which those petitioners would
leave their judicial post. Proof of alcoholism - a serious affliction - and even
evidence that the judge had taken steps to control his illness, did not excuse the
- 38 -
misconduct nor provide sufficient mitigation to permit the judge to remain on the
bench. 27
Significantly, in making its determination that Aldrich be removed from
the bench, the Court specifically held that
aside from the gravity of any wrongdoing, the effect of the

Judge's conduct ... upon public confidence in his character
and judicial temperament must be considered. 58 NY2d at
283.
Even "relatively slight improprieties subject the judiciary as a whole to
public criticism and rebuke." Aldrich at 283. Thus, in fashioning the appropriate
sanction, the Court must consider the seriousness of the misconduct and the
effect that permitting petitioner to remain on the bench will have on public
confidence in the judiciary as a whole. As is set forth below, petitioner's claim
of "displaced" marital frustration is too insubstantial to overcome the egregious
27
A third case, Matter of Kelso, 61 NY2d 82 (1982) offers little additional guidance.
In Kelso, the Court considered a part-time Town Justice who made serious
misrepresentations to a client in his private law practice. The Court was skeptical of
petitioner's claim that he suffered from "severe depression," noting that his alleged
psychological problem did not manifest itself in any other case. Kelso at 86. The
Court found that although petitioner's misconduct was serious, it did not warrant
removal where the client suffered no prejudice, the petitioner had already been
punished when his law license was suspended and there was no evidence of any
impropriety on the bench. Kelso at 87. In fashioning a sanction, the Court observed
that petitioner's depression should also be "taken into account," but did not discuss
whether the mental defense would be grounds for a reduction in sanction if the conduct
had otherwise warranted a removal.
- 39 -
nature of his misconduct and the damage he has inflicted on the public's
perception of the administration of justice.
B. Petitioner's Claim of "Displaced" Marital Frustration

Is Insufficient to Excuse His Conduct or Mitigate His Sanction
Judged by any standard, the record evidence for petitioner's argument that
he should not be removed from the bench because his conduct resulted from
"displaced" marital frustration is woefully insufficient to excuse his conduct or
mitigate the sanction. Indeed, implicitly conceding the weakness of the proof,
petitioner devotes most of his argument (P35-41) to theories never advanced
below. Neither petitioner nor his experts ever testified he suffered from
"courtroom stress" (P37-38), "vicarious trauma" (P37-38), "compassion fatigue"
(P38), "secondary traumatic stress" (P38) or "burnout" (P38-39). Nor did
petitioner argue below - as petitioner (P39) and amici do here (BGC7-8, CCJ8-
11, BANC9-10) - that his "emotional investment" in the Domestic Violence
Court "took its toll." 28 Petitioner's reliance on theories never advanced before
28
Ironically, one of the sources petitioner cites for the proposition that the special nature of
problem-solving courts creates psychological stress for judges (P39) goes on to say that
"Judges ... argue that the drug court has positive therapeutic outcomes for the judge. As two
judges write, 'judging in this non-traditional form becomes an invigorating, self-actualizing
and rewarding exercise." Richard Boldt and Jana Singer, Juristocracy in the Trenches:
Problem-Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified
Family Courts,65 Md. L. Rev. 82, 90 (2006).
- 40 -
the Commission, and for which there is no evidentiary foundation, serves to
underscore the evidentiary weakness of the claim he actually did make.
Neither petitioner nor his doctors were able to identify any specific events
or conduct in the marriage that led to petitioner's purported feelings of distance
from his wife on March 11th (401, 432, 446-47, 455, 803-04). Petitioner
acknowledged that there was no change in his martial relationship on March 11,
2005 - petitioner had no major disagreement with his wife on that day - and that
there was no specific event between them on that or the prior day that was
troubling him (802-03, 833-34). Petitioner and the doctors agreed that petitioner
and his wife continued to be sexually intimate, and petitioner acknowledged
having a loving and stable family (428-29, 985, 992).
Petitioner offered no independent evidence relating to problems in his
marriage. Petitioner's wife did not testify. No other member of his family
testified. In fact, no one other than petitioner testified as to the nature of his
relationship with his wife on or before March 11, 2005. The absence of Mrs.
Restaino's testimony is particularly telling, given: (1) Dr. 's testimony
that Mrs. Restaino believed she and petitioner had a happy marriage, that she had
nothing to complain about and that she was pleased she could spend more time
with petitioner (399-400, 434), and (2) petitioner's concession that Mrs. Restaino
thought they had a "happy relationship" (992). And despite petitioner's claim of
- 41 -
ongoing marital stress, it is undisputed that petitioner took no steps to get
counseling until his attorney contacted Drs. and after the
misconduct occurred (416-17, 475-76, 991-992). 29
Both of petitioner's experts reached their conclusions based on nothing
more than petitioner's self-serving declarations. Neither doctor knew petitioner
prior to March 11, 2005. Both doctors were contacted first by petitioner's
counsel and given information about his misconduct on March 11, 2005, and
both knew he was in serious professional trouble for what he had done.
Moreover, each of petitioner's experts acted as both therapist and a forensic
expert, a dual role that can "adversely affect both the therapeutic relationship and
[one's] objectivity as an expert." See Can a Treating Psychiatrist Double as a
Forensic Expert for the Same Patient, Psychiatric News, August 20, 2004,
Volume 39, Number 16, p. 16, American Psychiatric Association. 30
29
At least one court has rejected a judge's defense of physical and emotional difficulties
based on his failure to seek help. See Matter ofMardikian, 40 Cal3d 473, 485, 709 P2d 852,
859 (1985)(holding that "judge who is disabled ... has an obligation to seek relief').
30
The compelling need to separate the roles of forensic witness and therapist arises from the
distinctions between them. A therapist suspends disbelief, accepts a patient's narratives as
true, and is deliberately credulous in order to see the world through the patient's eyes. An
independent forensic evaluator looks at a patient objectively in a search for the historical truth
(See, On Wearing Two Hats: Role Conflict in Serving as Both Psychiatrist and Expert
Witness, L. H. Strassberger, M.D., et.al, American Journal of Psychiatry, April 1997, p. 448,
451). Moreover,
[t ]herapeutic assessments tend to rely much less on collateral sources of information
than do forensic evaluations. While spouses and other family members may be
interviewed (with the patient's permission) as part of a clinical assessment -
- 42 -
Finally, even if petitioner's experts were credited, their testimony falls far
short of establishing the kind of serious mental disease or defect necessary to
mitigate petitioner's decision to methodically deprive 46 individuals of their
liberty, one by one, while knowing he had no legal or factual basis to do so.
Petitioner's medical experts were remarkably vague as to the cause of
petitioner's alleged psychological problems. Dr. conceded that "there's
not enough information to be able to say why [petitioner] did what he did on that
day" (409). He concluded that petitioner does not suffer from any major mental
illness and he did not prescribe petitioner any medication (Tr. 351-52). Indeed,
in his formal written report, Dr. found that petitioner "did not have a
psychiatric difficulty, per se" and- in strikingly muted language - opined that
petitioner suffered from "a certain amount of marital dysfunction" (1272). The
particularly for hospitalized or substance-abusing patients - a forensic evaluation

routinely requires meticulous examination of multiple sources of information, such as
medical, insurance, school, and occupational records, as well as interviews with family
members, co-workers, employers, friends, police officers, and eyewitnesses. Such far-
ranging scrutiny by a psychotherapist, especially in out-patient treatment, would be
highly unusual.
On Wearing Two Hats, supra at 453 (emphasis added). An obvious example of the harmful
consequence of that incompatibility is present here. Neither Dr. nor Dr.
interviewed any family member (other than one meeting by Dr. with Mrs. Restaino ),
co-worker, employer, friend, or witness. Neither therapist reviewed petitioner's medical or
insurance records. Such conduct may have been in keeping with their role as therapist, but it
undermined the reliability of their forensic evaluations.
- 43 -
Commission properly found such evidence wholly inadequate to mitigate the
egregious nature of the misconduct. As the Commission wrote:
No doubt many if not most of the defendants in [petitioner's]

court were experiencing significant stresses in their own lives,
but the message consistently imparted by the Domestic
Violence Part, and indeed by every court, is the importance of
self-control and personal accountability. Surely that message
applies as well to the presiding judge (19).
POINT III
THE APPROPRIATE SANCTION IS REMOVAL
A judge who knowingly, repeatedly and publicly abuses his judicial
authority to commit 46 people to jail without basis in law has committed such
egregious misconduct that removal from judicial office is the only appropriate
sanction. It is now well-settled that the repeated abuse of bail as a punishment is
grounds for removal. See Matter of Sardina, 58 NY2d 286 (1983); Matter of
Bauer, 3 NY3d 158 (2004). Significantly, petitioner here abused his authority in
46 cases - nearly double the 26 cases of misuse of bail found sufficient to require
removal in Bauer.
Contrary to the argument of the amici (BGC9, CCJ 11-13, FCS6-7), the
fact that all 46 cases occurred on a single calendar does not mitigate the
seriousness of petitioner's conduct. For an individual defendant- bound in
handcuffs and leg shackles and held for hours at a county jail a half-hour's drive
- 44 -
from home - it cannot matter whether petitioner's mistreatment of other
defendants occurred on the same day or on some other day. Such defendant has
suffered an individual loss of dignity and liberty that is entitled to individual
consideration by this Court. Indeed, the effort by petitioner and amici to
minimize each defendant's individual hardship by considering petitioner's
conduct only in the aggregate compounds the very error petitioner made here -
his failure to give individualized attention to each defendant and to dispense
justice one case at a time, on the merits. The record amply demonstrates that
petitioner's conduct was far more than a single bad act- it was "a prolonged
series of acts over several hours that transcended poor judgment" ( 19).
As this Court's decision in Matter of Blackburne, 7 NY3d 213 (2006)
makes clear, a single episode of egregious judicial misconduct may be grounds
for removal. Indeed, the salient factors in Blackburne are functionally
indistinguishable from the facts here (21-23). As in Blackburne, petitioner here
acted in a fit of "pique" (Blackburne at 220) (19). Both petitioner and Justice
Blackbume sat in specialty courts, (Blackburne at 219) (5-6) and both "acted in
the thoroughly misguided belief that the integrity of their respective courts
required them to thwart normal procedure" (22) (Blackburne at 219)(P44). As in
Blackburne, petitioner had numerous "chances to reconsider" (Blackburne at
220), beginning with the five-minute recess he took immediately after the cell
- 45 -
phone rang, and continuing for more than an hour and a half as 46 defendants
appeared and tried to convince petitioner to grant them recognizance release. All
in all, petitioner was given far more than the "two chances to reconsider"
afforded Justice Blackbume, and his failure to take advantage of those many
opportunities seals the argument for his removal.
The additional cases cited by petitioner or amici do not suggest, let alone
compel, a different result. In Matter of LaBelle, 79 NY2d 350 (1992), this Court
rejected removal of a City Court judge and imposed a censure after finding that
in more than half the cases at issue, the judge's failure to set bail could be
explained or were due to ambiguities in the statute. LaBelle at 359-62.
Significantly, this Court found that Judge LaBelle was motivated "by
compassion for those whose problems do not belong in the criminal courts."
LaBelle at 363. No such motivation is evident here.
Matter of Mills, 2005 Annual Report 185 (Cornn. on Jud. Conduct, Dec. 6,
2004), was never appealed and this Court has never ruled whether it was rightly
decided. See, Matter ofBlackburne, 7 NY3d at 220, n3. In any event, while it
was undoubtedly wrong for Judge Mills to deprive two individuals of their
liberty, it is clear that he believed those defendants were actually guilty of the
conduct he found objectionable. Judge Mills did not, as petitioner did here,
incarcerate individuals he knew to be innocent.
- 46 -
Petitioner concedes that he sent 46 individuals to jail, despite his actual
knowledge that he had no legal basis to deprive them of their liberty and that
most, if not all, of the defendants did not have the ringing phone. The only
appropriate sanction for such egregious and unprecedented conduct is removal.
- 47 -
CONCLUSION
It is respectfully submitted that the Court should accept the
Commission's Determination that petitioner should be removed from office.
Dated: February 29, 2008 Respectfully submitted,

New York, New York
Administrator and Counsel to the

61 Broadway
212-809-0566
Of Counsel:
Edward Lindner
John J. Postel
- 48 -
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK )

SS.:
COUNTY OF ALBANY )
LISA SAVARIA, being duly sworn, deposes and says: deponent is not a party to
the action, is over 18 years of age and resides at 650 Boght Road, Cohoes,
New York 12047.
On February 29, 2008, deponent served the within Respondent Commission's
Brief to the Court upon Terrence M. Connors, Esq., and Vincent E. Doyle III, Esq.,
attorneys for the petitioner, Hon. Robert M. Restaino, at 1000 Liberty Building, 424 Main
Street, Buffalo, New York 14202, by: (1) sending one copy electronically to an e-mail
address provided for that purpose by Mr. Doyle and (2) depositing three true copies of
same, enclosed in a post-paid properly addressed wrapper, into an official depository
under the exclusive care and custody of FedEx for overnight delivery.
Lisa Savaria
Sworn to before me this

29th day of February, 2008.
CATHLEEM S. c:::.i:1?I
,. ~"'·''" , .. ·,,:cN York
1u 0 tary Pu b ilC.. ·..:' ·,·.-.··
• .. ·.. ··
'" . . '"·.:·,;:··.ty
Qualified m ;~ ~'::, . ,
No. 't'.:•'.'"""" ·.· ., .., 20 lo
Commission Expires i'~ovuli;\Jv• ~"'· -
NEW YORK STATE
EMPIRE STATE PLAZA
TELEPHONE FACSIMILE
LITIGATION
February 29, 2008

Clerk of the Court
Court of Appeals
20 Eagle Street
Re: Matter of Robert M. Restaino v. Commission on Judicial Conduct
Dear Mr. Cohen:
Courtesy copies of Respondent's brief in the above-referenced matter were

sent, via regular mail, to the following counsel for the amici curiae: Anthony D.
Parone, Esq., Morton H. Abramowitz, Esq., John M. Aversa, Esq., Walsh, Roberts
& Grace, Mary Ann Oliver, Esq., John J. Delmonte, Esq., Robert Viola, Esq.,
Shannon M. Henghan, Esq., David J. Farrugia, Herbert L. Greenman and Thomas
M. O'Donnell.
Very truly yours,
Edward Lindner
Enclosures
cc: Terrence M. Connors, Esq.

NEW YORK STATE
EMPIRE STATE PLAZA
TELEPHONE FACSIMILE
LITIGATION
February 29, 2008
Anthony D. Parone, Esq. John M. Aversa, Esq.

Morton H. Abramowitz, Esq. Attorney for Bar Association of
Attorneys for Niagara Falls Niagara County, et al.
Boys & Girls Club, et al. 625 Sixth Street
Walsh, Roberts & Grace Mary Ann Oliver, Esq.

Attorneys for New York State Niagara County Legal Aid Society
Association of City Court Judges Attorney for Landlord's Association
400 Rand Building Of Greater Niagara, et al.
14 Lafayette Square 775 Third Street
Buffalo, New York 14203 Niagara Falls, New York 14302
John J. Delmonte, Esq. Robert Viola, Esq.

Attorney for Lawyers with Attorney for Phi Alpha Delta Law
Depression Fraternity, International
2706 Pine Avenue 770 Main Street - M.P.O. Box 948
P.O. Box 2146 NMS Niagara Falls, New York 14302
Shannon M. Heneghan, Esq. David J. Farrugia, Esq.

Sugarman Law Firm, LLP Niagara County Public Defender
Attorney for City of Niagara Falls Niagara County Courthouse
Police Department, et al. 175 Hawley Street
1600 Rand Building Lockport, New York 14094
14 Lafayette Square
Herbert L. Greenman Thomas M. O'Donnell

Lipsitz Green Scime Cambria LLP Acting Corporation Counsel of the
Attorneys for Amici Curiae City of Niagara Falls
42 Delaware Avenue, Suite 300 745 Main Street, P.O. Box 69
Buffalo, New York 14202 Niagara Falls, New York 14302
February 29, 2008

Page2
Re: Matter of Robert M. Restaino v. Commission on Judicial Conduct
Counselors:
Enclosed please find one copy of Respondent Commission's Brief to the

Court in this matter.
Very truly yours,
Edward Lindner
Enclosure
CONNORS & VII.ARDO, LLP
LAwOFFicES
1000 LmERTY BmwING
424 MAIN STREET
BUFFALO, NEW YORK 14202
TELEPHONE (716) 852-5533 FAX (716) 852-5649
TERRENCE M. CONNORS SUSAN B. FISCHER, R.N.
LAWRENCE J. VILARDO Cmrns J. AHRENS, JR.
RANDALL D. Wmrn* DAWN M. BOUDREAU
JoHNT. Loss FATIH M. Anmss, R.N.
VINCENTE. DoYLE m LYNN M. BOCHENEK
MICHAEL J. RoACH DoNNA J. Rrrz, R.N., B.S.N.
LAWLOR F. QUINLAN ill PARALEGALS
JAMES w. GRABLE, JR.
AMY C. MARrocHE
ELIZABEIH B. HARNED
GIUSEPPE A. IPPOLITO
JOSEPH D. MORATH, JR.
March 5, 2008
JENNIFER R. ScHARFt
*ALSO ADMIITED IN Dlsnncr OF CoLUMBIA

tALSO ADMIITED IN CAllFoRNIA.
Hon. Stuart M. Cohen, Clerk of the Court

STATE OF NEW YORK
COURT OF APPEALS
20 Eagle Street
Re: In the Matter of the Proceedings Pursuant to Section 44,

subdivision 4, of the Judiciary Law in Relation to ROBERT M.
RESTAINO, a Judge of the Niagara Falls City Court, Niagara
County
Dear Mr. Cohen:
Please allow this letter to confirm that on behalf of petitioner, Hon. Robert
M. Restaino, we have requested and received an extension of time to file our Reply
Brief, which must now be filed on or before Tuesday, March 11, 2008. We
appreciate the Court's courtesy in this regard.
Sincerely,

sb

Attn: Edward Lindner, Esq., Deputy Administrator for Litigation
WRITER'S E-MAIL ADDRESS: ved@connors-vilardo.com

To be Argued by:
Estimated Time for Argument:
(30 Minutes)
STATE OF NEW YORK
<!tnurt of Appeal11
o
Niagara County,
Petitioner,
vs.

Respondent.
REPLY BRIEF FOR PETITIONER
ROBERT M. RESTAINO

Attomeys for Petitioner
Robert M. Restaino
424 Main Street
Telephone: (716) 852-5533
Facsimile: (716) 852·5649

VINCENT E. DOYLE III, ESQ.
Of Counsel
BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768·2100

TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT 2
I. THOUGH RESPONDENT ATTEMPTS TO MINIMIZE THE

PSYCHOLOGICAL EVIDENCE, THAT EVIDENCE WAS
COMPELLING AND UNCONTROVERTED 2
II. CONTRARY TO RESPONDENT'S REPEATED SUGGESTION,

PETITIONER HAS NEVER TRIED TO EXCUSE HIS CONDUCT
OR AVOID RESPONSIBILITY FOR IT 8
III. PETITIONER IS FIT TO SERVE AS A JUDGE AND

THEREFORE SHOULD NOT BE REMOVED 17
IV. PETITIONER'S CASE IS DISTINGUISHABLE FROM THE

BLACKBURNE DECISION 25
CONCLUSION 29
-11
Page
Cases:
Glavin v. Restaino, 210 Fed.Appx. 122,2006 WL 3826655

(2d Cir. 2006) 24
Matter of Blacl(burne, 7 N.Y.3d 213,818 N.Y.S.2d 824 (2006) 25,26,28
Matter of Dllcl<man, 92 N.Y.2d 141,677 N.Y.S.2d 248 (1998) 17,25
Matter of Edwards, 67 N.Y.2d 153,501 N.Y.S.2d 16 (1986) 18
Matter of Esworthy, 77 N.Y.2d 280,567 N.Y.S.2d 390 (1991) 17
Matter of Kelso, 61 N.Y.2d 82, 471 N.Y.S.2d 839 (1984) 18
Matter of LaBelle, 79 N.Y.2d 350,582 N.Y.S.2d 970 (1992) 18
Matter of Reeves, 63 N.Y.2d 105,480 N.Y.S.2d 463 (1984) 17
Matter ofSl<inner, 91 N.Y.2d 142,667 N.Y.S.2d 675 (1997) 18
Matter ofWaltemade, 37 N.Y.2d [a], [111], 409 N.Y.S.2d 989

(Ct. Jud. 1975) 17
Matter ofWatsoll, 100 N.Y.2d 290,763 N.Y.S.2d 219 (2003) 17, 18
-111
INTRODUCTION
The Commission's brief would have this COllrt view the events of
March 11,2005 in isolation. The Commission's view seems to be t11at only what
happened -- and not the cause behind it -- should be important for this COllrt.
Indeed, the Commission's brief spends almost 40 of its 48 pages addressing facts
that no aIle displltes to the exclusion of the reasons behind those facts.
When the Commission's brief does address the reasons behind the
event, it gives thenl short shrift. It sllggests that Jlldge Restaino blames some
transient marital discord for his actions, as ifhe got mad at his wife and tool( it alIt
on those who appeared before him. It chastizes him for trying to "excllse" or
"minimize" his condllct by addressing why it occurred.
The Comnlission's position is analytically unsound. But even worse,
it ignores grave issues of stress and vicarious trauma -- issues that the court system
has explicitly recognized; issues that llntil only recently, judges and lawyers were
afraid to admit.
This case is not simply about what happened. This case is not sin1ply
about why it happened. This case is about the what and the why -- and whether
that entire pictllre makes Robert M. Restaino unfit to continue his service as a
Judge of the Niagara Falls City COllrt.
-1
ARGUMENT
I. THOUGH RESPONDENT ATTEMPTS TO MINIMIZE THE

PSYCHOLOGICAL EVIDENCE, THAT EVIDENCE WAS
COMPELLING AND UNCONTROVERTED.
As it did in its Determination, the Commission attempts to minimize
and dismiss the psychological evidence sllbmitted by Jlldge Restaino. The
Commission llses various techniques to purSlle this strategy. It largely ignores that
evidence, focllsing instead on the undisputed facts. The Commission derisively
characterizes evidence of multiple psychological stressors as a claim of "displaced
marital fnlstration." Brief for Respondent State Commission on Judicial Conduct
("BR") at 3,36, 39, 40. 1 The Commission suggests that Judge Restaino COllld not
have been experiencing any difficllities in his marriage because his wife was not
aware of his feelings (BR at 3); because he and his wife did not fight specifically
on the day in question (BR at 41); and because he and his wife continlled to have
seXllal intimacy (BR at 41). The Commission also suggests that proof of
psychological factors should not be considered because Judge Restaino's treating
psychologist and psychiatrist had spol(en with his attorney (BR at 42); becallse
Amiclls Curiae New Yorl( State Association of City Court Jlldges

expressly notes its "grave concern" with the Commission's
"dismissive treatment of Judge Restaino's emotional and
psychological issues." Brief of Amicus Curiae on Behalf of New
Yorl< State Association of City Court Judges, at 1-2.
-2
one of them mistal<enly referred to Judge Restaino's wife by the wrong first name
(BR at 25, n.21); and because both treated Judge Restaino and therefore were not
qllalified to render an expert opinion regarding Judge Restaino's mental state.
(BR at 42).2
Bllt despite these efforts to undermine the testimony offered by these
mental health professionals -- both of whom the Referee found to have
"impressive credentials" and to have given "persuasive testimony" (Record on
Review "R." at 1512) -- the Commission failed to offer any testimony or other
evidence to the contrary. Though the Commission certainly had the right to do so,
it never called any forensic psychiatric or psychological expert to rebut any of the
testimony of Drs. and
Moreover, and contrary to the assertion of the Commission, the
psychological factors affecting Judge Restaino were indeed significant. Judge
Restaino and his fellow judges, including his Chief Jlldge, testified about the
overwhelming and "crushing" caseloads of the courts in which Judge Restaino
2
The Commission erroneously claims that psychiatrist ,
M.D., saw Judge Restaino only three times. See BR at 24. Dr.
testified that he saw Judge Restaino a total of 16 times -- three
times in May 2005 (R. at 393) and 13 times thereafter. R. at 412.
-3
worl<ed. 3 He worked tirelessly, not only in his own court but also assisting other
jlldges and other courts in the Eighth Judicial District. He also spent extra time
helping to improve the court system by implementing the Domestic Violence
COllrt and creating a specialty part within that COllrt for youths involved in
domestic violence.
While handling that oppressive worl(load, Jlldge Restaino was under
considerable psychological stress at home due to what he perceived to be the
breal(down of his marriage. Because of strongly-held views against divorce, he
felt trapped in a marriage without meaningful connection to his spouse. Despite
repeated reqllests, his wife refused to attend counseling with him or even
aclmowledge that their marriage was disintegrating. Judge Restaino's response
was to bllry himself in more and more work. With pressure at worl( and pressure
at home, he had no respite.
The mental health professionals who treated Judge Restaino -- Drs.
and -- gave their opinions about that psychological condition. Both
are generollsly credentialed and fully qualified to render the opinions they did.
3
The brief of amicus curiae City of Niagara Falls notes that the
Niagara Falls City Court is the third busiest city court in New Yorl<
State. See Amicus Curiae Brief of the City of Niagara Falls, New
Yorl<, at 3.
-4
And contrary to the Commission's position, both gave detailed testimony about
the psychological reasons behind Judge Restaino's aberrant behavior on March 11,
2005.
For example, Dr. explained how unresolved feelings of grief
over the death of their unborn daughter set off "mounting stress" for Jlldge
Restaino and his wife, callsing their relationship to become "llnglued." R. at 1274.
As Jlldge Restaino continlled to bury himself at work, his stress level rose "beyond
the bearable point." R. at 468. Dr. explained how that personal stress was
exacerbated by Judge Restaino's service in the courts, particularly the Domestic
Violence Court. R. at 402-410. He found that Judge Restaino's service in the
Domestic Violence COllrt contributed to his conduct on March 11, 2005.
R. at 406-407. Both Dr. and Dr. opined that because Judge
Restaino now had tal<en steps to address his mental health issues, a relapse was
llnlil<ely. R. at 413, 1275. Thus, despite the Commission's suggestion to the
contrary, evidence of psychological stress was more than adequately established in
the Record.
And that evidence not only was compelling, it also was
uncontradicted by any evidence from the Commission. The absence of any
evidence to the contrary is particularly significant here. Common sense tells us
-5
that there illllst be some explanation for conduct as aberrational as Jlldge
Restaino's on March 11,2005. Ifseriolls psychological stressors are not to blame,
what reason wOllld the Commission offer to explain why a jurist with a sterling
record of service and temperament would act in such an llnprecedented way? Why
WOllld Judge Restaino erupt on March 11,2005, when his condllct before that day
had impressed everyone familiar with him as fair, even-handed and honorable?4
WIlY wOllld a man lalown for promoting calm discourse and contributing to
creative problem solving react so inappropriately? The Commission has not
presented any expert testimony, theories, or even conjeculre that wOllld explain
this condllct. Rather, the Commission merely repeats, in variolls ways, its
contention that Jlldge Restaino "abused his authority" by doing what he did.
While that is certainly true, it tells only half the story.
A man with a 20-year record of compassion and respect for the law
does not act in a bizarrely different manner without some explanation. Here, the
4
The Brief of Amici Curiae Family and Children's Service of Niagara,
Inc., et a1., further attests to Judge Restaino's goodjlldicial
temperament. These amici, representing a broad range of experience
in domestic violence court, "were regularly in the courtroom as Judge
Restaino ran the Domestic Violence and adjunct courts." In their
view, he was "patient, diligent, fair and dedicated to the goals of the
Court." Brief of Amici Curiae Family and Children's Service, Inc., et
al., at 10.
-6
unCol1troverted evidence points to severe psychological issues as the reason. The
Commission qllibbles with that explanation, but it offers nothing to contradict it.
-7
II. CONTRARY TO RESPONDENT'S REPEATED SUGGESTION,
PETITIONER HAS NEVER TRIED TO EXCUSE HIS CONDUCT OR
AVOID RESPONSIBILITY FOR IT.
Judge Restaino has consistently acknowledged that his actions on
March 11, 2005 were wrong. He recognized his misconduct shortly after it
occllrred and tool( measures the same day to release all defendants still being held.
Since that time, he has repeatedly accepted responsibility and expressed remorse
al1d contrition.
He told his psychologist and psychiatrist that what he did was his
own failit and that he deeply regretted his actions. R. at 407, 413, 464. When the
Commission filed a complaint against him, he admitted the factual allegations in
the complaint. R. at 43. He admitted misconduct at the hearing before the
Referee. R. at 729-30, 733, 856, 944-45. Indeed, l1e repeatedly, and without any
eqllivocation, told the Referee that his conduct was improper, contrary to law, "not
fair" and "not rig11t," see generally R. at 845-967, and the Referee fOllnd that
expression of remorse to be "sincere." R. at 1512. Judge Restaino admitted
misconduct when he personally appeared before the Commission. R. at 1703,
1709-1710. And now, before this Court, he has admitted the factual findings of
the Commission and has acl(llowledged that those facts constitute miscondllct.
See Brief for Petitioner ("BP") at 1, 2, 52.
-8
Jlldge Restaino did submit uncontroverted evidence that what
happened on March 11, 2005 was the result of psychological issues exacerbated
by stress at worl( and at home. But he has always been careful to point Ollt that
this evidence was offered to explain his misconduct, not to excuse it. See,~,
R. at 1519-1572; BP at 3,34,40,44,60. Indeed, Jlldge Restaino's briefbefore
this COllrt repeated several times that psychological evidence was not offered as
any form of excuse for his behavior:
• "The mental health professionals have explained Ju·dge

Restaino's behavior; they have not excused it, nor can they."
BP at 3 (emphasis in original).
• "This [psychological] evidence by no means excuses what

Judge Restaino did, nor does it exonerate him from blame."
BP at 34.
• "None of this excuses Jlldge Restaino's conduct. Bllt

understanding why the conduct occurred is necessary to decide
an appropriate sanction." BP at 60.
It is therefore somewhat surprising that the Commission would
repeatedly suggest in its brief that Jlldge Restaino offered the psychological
evidence in an effort to "excuse" ("BR" at 3,26, 37, 40), "minimize" (BR at 45),
"attribllte" (BR at 23) or "attempt to normalize" (BR at 32) his condllct. Eqllally
trollbling is the suggestion that this non-existent attempt by Judge Restaino to
-9
eXCllse his condllct is evidence that he does not accept responsibility for his
actions and therefore deserves removal. See,~, BR at 26,32,45.
The characterization of Judge Restaino as attempting to eXCllse or
shirl( responsibility for his behavior permeates the Commission's brief. Bllt that
characterization finds no sllpport in the record and is directly contradicted by
Jlldge Restaino's llnwavering acceptance of responsibility. Indeed, even the scant
citations to the Record offered by the Commission in support of this
characterization are inapposite. For example, the Commission claims that Jlldge
Restaino "attribllted his decision" on March 11, 2005 "to problems in his
marriage," and cites page 977 of the Record. BR at 23. Btlt an examination of
Jtldge Restaino's testimony on that page of the Record shows that no such claim
was made:
Q: Tllrning to your discussion, Judge, about YOllr

personal marital stresses and the stresses in your
marital relationship, can you tell us, please, what's
the date of YOllr wedding?
A: October 1, 1983.
Q: When you indicated to us that, or in response, not

to us, to Mr. Daniels, you used the words, "early
difficulties in your marriage"?
A: Yes sir.
-10
Q: And I gather as you thinl< back to March 11, you
find those early difficulties to have some relevance
to your actions towards these defendants on March
II?
A: I think they have some relevance to the way I, to

what I was dealing with.
Q: And the way yOll dealt with what you were dealing
with?
A: Yes sir.
R. at 976-77. Jlldge Restaino never "attribllted" his condllct to his marriage. Nor
did he seel< to excuse his conduct because of any aspect of his marriage. Indeed,
at oral argllment before the Commission, he said unequivocally: "I don't blame
my wife, I'm the one who's responsible, I did it." R. at 1708-1709. Any
characterization to the contrary is simply unsupported.
Similarly, the Commission's briefrepeats a point made by the
Commission in its Determination: that Judge Restaino did not tal<e any steps to
arrange for the defendants' release until after he learned from the court clerl( that
the press had inqllired into his action. See R. at 12,22; BR at 27, 35-36. Bllt that
characterization contradicts the testimony at the hearing. Judge Restaino testified
that he realized the error of his conduct while on a tour of a youth detention
-11
facility in the afternoon of the day in question and decided then to release the
defendants. Judge Restaino's testimony, in relevant part, is as follows:
Q: Did there come a point later in the day when you

took steps to release these peoples?
A: While I was at, Judge Marinello brought me to the

facility. I didn't drive myself, he brollght me
there. It was a new facility and I was familiar with
the location of the old one and he was familiar
with the location and he was going to drive me, as
he had to go as well. And we signed in, we got
there, the lady who was going to tal<e us arollnd
began the process of giving us the tOllr and I
began, as I'm listening to her tall< about different
things and I'm also thinl<ing about what I've just
been in, I begin to believe that I've got to make a
call to get my clerk to correct what I did. I've got
to undo this and at the end of the tour, we were
close to a conference and I asl<ed the lady at the
facility if I could use the phone and how to get an
olltside line and I made a call to the chief clerl< and
I asl<ed her if she could make sure that were
sufficient, you lalow, that I had my reporter there
and that whatever staff she thought would be
necessary because I was going to come back and
undo what I had done.
R. at 790-91.
Q: While you were on the tour, did you get a call

from [Niagara Falls City Court Chief Clerl<
Martha] Farbo?
A: Did I get a call from her?
-12
Q: Correct.
A: Actually I had, she contacted me on my pager.
Q: While you were on the tour?
A: While I was on the tour.
Q: What time was that?
A: I don't Imow the exact time of it. I wasn't lool(ing

at my watch then, and then we continued on the
tour.
Q: And what did she say to you on that, oh, she jllst
wanted you to call her?
A: Well, yeah, it was just a number and I recognized

the number as being the City COllrt number.
Q: When did you call her bacl(?
A: Well as I said, when I finally got toward the end of

the tOllr, I asked where I COllld get a phone and
how to get an outside line.
Q: And what did yOll do when you called Ms. Farbo?
A: Well, I tall(ed to her about what I needed to do and

she told me that there were some inquiries about
what had, what had happened in the courtroom.
Q: She told yOll that the inquiries were the press

contacting -
A: Yes sir-
-13
Q: The court about all those defendants being locked
. h?
up, rIg t.
A: Yes sir. And I told her it was my intention that I

needed to get the personnel to release them.
Q: Up llntil the time that you heard that the press was
making inquiries abollt your actions at that time,
you had tal<en no steps to release these defendants,
is that correct?
A: I wasn't in a position to do that.
Q: My question was, did you do anything?
A: If I could have, I would have.
Q: Did you?
A: No sir.
Q: After learning that the press was making inquiries

concerning the matter, you drove bacl< to the Falls,
right?
A: No, I was going bacl< to the Falls anyway.
Q: But you drove back?
A: The tour was over. It wasn't after I had the

inquiries from the press.
Q: You went back to the Falls -
A: I don't thinl< that's a fair interpretation of what I

did.
-14
R. at 969-71.
The Commission's assertion that Judge Restaino tool< steps to release
the defendants only because he received word about media inquiries is not
sllpported by the record. Judge Restaino realized that his actions were wrong,
decided to release the defendants, and called the court staff to make arrangements
to do jllSt that before he was told that there had been a media inquiry. Though the
actllal release occllrred after this inqlliry, there is no evidence that the inqlliry
played any role in Judge Restaino's decision to correct his error. And the
sllggestion to the contrary in the Commission's brief is a classic example of the
logical fallacy "post hoc ergo propter hoc" -- "after this, therefore becallse of this."
Characterizing the psychological evidence as an attempt to offer an
"excllse" certainly attempts to diminish that evidence. But worse than that, it
perpetllates the negative connotation associated with seel<ing treatment for
psychological conditions. Lil<e other professions, the legal profession has suffered
too lOllg from the fear of admitting mental health difficulties and seel<ing treatment
for them. For too long, lawyers and judges have avoided getting help for SllCh
problems becallse they were afraid that others would see them as lacl<ing the
personal strength to deal with difficulties and avoiding responsibility for the
conseqllences. Fortunately, there is growing recognition of the mental health
-15
iSS1les facing the legal profession. See BP at 35-40. And recently, there have been
efforts to enc01lrage members of the judiciary to seek mental health cOl1nselil1g
and help when necessary. See NY Lawyer Assistance Trust Announces Advisory
Panel, Lawyers Assistance Trust News, Vol. 6, No.1, at 1 (Winter 2007),
available at http://www.nylat. org/pubIications/newsletters/documents
/newsletterWinter2007.pdf (stating that one purpose of this outreach effort is "to
reach judges who may themselves be experiencing a problem and feel they have
nowhere to t11m."). If Judge Restaino's admission of his own struggles with
mental health issues is successfully portrayed as an attempt to "excuse" his
cond1lct, that W01lld send the very message that mental health professionals, the
legal profession and the court system have been trying for years to change.
Notwithstanding the suggestions by the Commission to the contrary,
Jlldge Restaino has repeatedly admitted his mistal<e and expressed gen1line
remorse and contrition for his conduct. Raising legitimate psychological isslles
does not change that.
-16
III. PETITIONER IS FIT TO SERVE AS A JUDGE AND THEREFORE
SHOULD NOT BE REMOVED.
This COllrt has repeatedly stated that the purpose ofjlldicial
disciplinary proceedings is "not pllnishment bllt the imposition of sanctions where
necessary to safegllard the bench from unfit incllmbents." Matter of Reeves, 63
N.Y.2d 105, 111,480 N.Y.S2d 463,466 (1984) (emphasis added) qlloting Matter
of WaItemade, 37 N.Y.2d raJ, [111], 409 N.Y.S.2d 929 (Ct. Jud. 1975). Thus
removal -- the liltimate sanction -- ShOllld be reserved for cases where there is
compelling proof that the judge is unfit. See Matter of Watson, 100 N.Y.2d 290,
303,763 N.Y.S.2d 219,226 (2003); Matter of Duclanan, 92 N.Y.2d 141,152,677
N.Y.S.2d 248,254 (1998); see also Matter of Esworthy, 77 N.Y.2d 280, 293, 567
N.Y.S.2d 390,391 (1991).
The Commission does not argue that Judge Restaino is unfit for
office. Indeed, nowhere in its brief does the Commission even assert that Jlldge
Restaino is unfit. Rather, the Commission argues that Judge Restaino's
miscondllct on March 11, 2005 was so egregiolls that he should be removed.
In mal(ing this argument, the Commission ignores the
overwhelming -- indeed, uncontroverted -- evidence that Judge Restaino is fit to
serve. As detailed in the principal brief filed on Judge Restaino's behalf, the
-17
llndispllted evidel1ce shows that Judge Restaino: had an llnblemished record of
exemplary service; was fair and even-tempered to all who appeared before him;
and repeatedly acknowledged and expressed remorse for his single act of
misconduct, which was clearly an aberration. Moreover, the undispllted evidence
shows that the events of March 11 were callsed by psychological isslles of stress
and depression and that Judge Restaino had taken positive efforts to address those
isslles so that there was little risk that tIle misconduct would recur. As this Court
has noted, SllCh factors are evidence of a judge's fitness to serve. See Matter of
Watson, 100 N.Y.2d 290,763 N.Y.S.2d 219 (2003); Matter ofSl<inner, 91 N.Y.2d
142,667 N.Y.S.2d 675 (1997); Matter of LaBelle, 79 N.Y.2d 350, 582 N.Y.S.2d
970 (1992); Matter of Edwards, 67 N.Y.2d 153,501 N.Y.S.2d 16 (1986); Matter
of Kelso, 61 N.Y.2d 82,471 N.Y.S.2d 839 (1984).
Indeed, the conclllsion that Judge Restaino is fit to serve echoes
thrOllghout the many amicus curiae briefs filed with this Court on behalf of
jlldicial, edllcational, civic, charitable and social grOllpS. Amici come from the
bench and bar, from former prosecutors and defense attorneys, from criminal and
civil litigants, from those who serve the courts and those who appear in COllrt.
Despite their diverse interests and perspectives, those groups have reached the
-18
same conclusion: that Judge Restaino should be permitted to continue to serve in
office. Their words are worth repeating:
• Amicus Curiae Brief of The City of Niagara Falls, New York:
"Following the Commission's determination, Judge

Restaino was the recipient of an outpouring of public
support from the citizens ofNiagara Falls. To date, there
has been a letter-writing campaign, a highly successful
petition drive and several opinion articles in the local
newspaper on the Judge's behalf." (p.5)
"[T]he citizens of Niagara Falls, the people who elected

and re-elected him with nearly 80% of the popular vote
in a contested election, are willing to look beyond the
March 11, 2005 incident and instead focus on the
Judge's nearly 25 years of dedicated public service. For
the people of the City understand the serious nature of
this proceeding and the serious implications that this
Court's decision may have upon them: For ifhe is
removed, Judge Restaino loses only his job as ajudge;
Niagara Falls loses much, much more." (p. 11)
• Brief of Amici Ctlriae Niagara County Public Defender's

Office and Niagara County Conflicts Defender's Office:
"We believe the Commission, in coming to [its]

determination, was unaware of the true measure of Judge
Restaino's reputation in the community, particularly that
portion of the community thereof that happened to find
its way into the criminal division of Niagara Falls City
Court." (p.3)
"Likewise, although certainly punishment needs to be

meted out, the punishment recommended by the
Commission of removal will not only end Judge
-19
Restaino's professional life, but would deeply impact the
community he served. He was a good Jlldge, fair to both
sides, extremely hardworl<ing and dedicated to seeking
justice." (p. 3-4)
• Brief of Amici Curiae Family and Children's Service of

Niagara, Inc.; Elizabeth Brady, Department of Social Services;
Jennifer Hall, Department of Social Services:
"[A]11 amici have specific information relative to Jlldge

Restaino's performance not only while he presided in the
Niagara Falls Criminal Court but, as well, his
performance in presiding in the Niagara Falls City COllrt,
Domestic Violence Court." (p. 2)
"Amici unanimously agree as specialty COllrt

professionals that Judge Restaino was an exemplary
judge and that his removal from the bench would be a
great loss to the Niagara Falls City Court, its specialty
courts in particular." (p. 4)
"Ironically, the Commission's determination ignores the

goal of Judge Restaino's own Domestic Violence COllrt.
There, individuals coming before the Criminal COllrt
have the opportunity to involve themselves in significant
counseling in an effort to allow them to regain their
positive roles in society. Judge Restaino ShOllld be given
the same chance." (p. 7)
• Brief of Amici Curiae of City of Niagara Falls Police

Department, Niagara Falls Police Club and Niagara Falls
Captains and Lieutenants Association:
"These individuals engaged in law enforcement risl< their

health and lives throughout the course of criminal
investigations and need to be able to rely on the integrity
of a judge when called upon. Every one of these
-20
individllals has come to rely upon the judicial integrity of
Judge Restaino." (p. 7)
"Additionally, amici respectfully advise that Judge

Restaino's service as a City Court Judge helped to
further law enforcement objectives of keeping
communities safer through novel means, such as his
worl( with the specialty courts and youths in the
community. Amici submit to this COllrt that when all
circumstances are considered, the brief and aberrant
misconduct should not lead to his removal" (p. 10)
• Brief of Amicus Cllriae on Behalf of Phi Alpha Delta Law

Fraternity, International:
"The Fraternity recognized that the case of Judge Robert

M. Restaino presented a unique opportunity to advance
its principles of integrity, compassion and courage in
order to demonstrate the need to have jurists of Jlldge
Restaino's character and dedication remain members of
an unbiased and competent judiciary." (p. 2)
"In light of his momentary lapse in judgment, the

stressors which gave rise to this aberration, his
immediate and sincere remorse for his condllct, his
prompt admission of wrongdoing to and cooperation
with the Commission, and his immense body of
community and public service in a relatively short period
of time, removal from the bench appears unwarranted."
(p. 2-3)
• Brief of Amicus Curiae on Behalf of New Yorl( State

Association of City Court Judges:
"[T]he decision of the Commission on Judicial Conduct

('Commission') to treat Judge Restaino's psychological
and emotional condition with such apparent levity is a
-21
matter of grave concern to the NYSACCJ. Regardless of
how this Court rules on the issue of sanction in this case,
it is our fervent hope that the Court will formally
aclmowledge the untreated emotional issues can have
disastrous consequences for judges at every level and
that the Record in this case clearly establishes that this
fine Judge did not get help when he sorely needed it."
(p.1)
"The fact that the Commission found 'no mitigating

circumstances in the Record' flies in the face of reason
and cornmon sense. The mental health and well being of
the Judiciary is of the utmost concern to the NYSACCJ
(as it should be to all legal professionals) and an
acceptance of the extreme sanction of removal given the
realities of Judge Restaino's condition will send a very
troubling and chilling message to all of those jllrists who
stnlggle daily with emotional problems." (p. 4-5)
• Brief of Amicus Curiae on Behalf of Daniel T. Llll(asil(, Esq.,

As Founder and Administrator of Lawyers with Depression:
"In perspective, over six pIllS years up llntil the date of

this incident, and excepting routine breal(s in the
calendar, Judge Restaino would have presided over
roughly 350 weeks of cases involving thousands of
defendants who had committed violent and/or abusive
offenses against spouses and/or children. During the
course of their participation, many in the program
violated conditions of their participation, reslliting in
innumerable occasions. where Judge Restaino was
required to hear and consider explanations for such
violations, offer reprieves from the same, or in some
instances, impose a sanction, including re-imposing bail,
incarceration or ejectment from the Part. R. at 682-687.
It is the context of this environment involving thollsands
of cases, almost all of which were of the most unsettling
-22
and disturbing kind within the criminal justice system,
combined with the unfortunate circumstance of Judge
Restaino's long-simmering, but highly repressed and
internalized, depression that his conduct of March 11,
2005 must be viewed and evaluated." (p. 3)
"[I]n the present case there is a strong record of proof,

almost entirely bypassed by the Commission, of a
justifiable explanation for Judge Restaino's aberrant
behavior based upon a medically diagnosable condition
which triggered his behavior on March 11, 2005, and
which has been therapeutically addressed to such a
degree as to eliminate the likelihood of it occllrring
again." (p. 7-8)
• Joint Brief of Amici Curiae on Behalf of Mary Ann Oliver,

Esq., Matthew T. Weber, Esq., W. Maxwell Coyl<endall, Esq.
and Landlords' Association of Greater Niagara:
"A premise of Domestic Violence Court is that people

can change their lives to prevent future problems and can
live constructive and healthy lives. Jlldge Restaino, who
presided in Domestic Violence Court, ShOllld also be
given that chance. ... Excessive punishment of a judge
viewed so highly by so many for so long WOllld erode
public confidence in the fairness of Ollr judicial system."
(p.6)
• Brief of Amici Cllriae on Behalf of Bar Association of Niagara

County, Niagara Falls Bar Association, Lockport Bar
Association, Commllnity Missions of the Niagara Frontier, Inc.,
Niagara County Legal Aid Society and Bar Association of
Tonawandas:
"In view of Judge Restaino's competence and

experience, his removal for a single episode of aberrant
behavior on March 11, 2005, which was neither venal
-23
nor abllsive would be to the detriment of Niagara
County." (p. 8)
Significantly, one of the amicus curiae briefs was filed by attorney
David Gerald Jay, Esq.5 As the Commission's brief notes, some of the
defendants remanded by Judge Restaino on March 11,2005, sued him for alleged
deprivation of their constitutional rights. See BR at 7, n.3; see also Glavin v.
Restaino, 210 Fed.Appx. 122,2006 WL 3826655 (2d Cir. 2006). Mr. Jay was the
attorne"y who represented those individuals in their suit. Bllt after investigating
this matter, even Mr. Jay concluded that Jlldge Restaino's actions on March 11,
2005 were "an aberration." Brief of Amicus Curiae Niagara County Pllblic
Defender's Office, et al. at 4. As a result, even Mr. Jay is of the opinion that
"removal is too harsh a penalty." Id.
The llnrebutted proof before the Court demonstrates that Judge
Restail10 is indeed fit to serve as a judge of the Niagara Falls City Court. That
evidence, and the unbridled support of the Niagara Falls connnllnity as
demonstrated by the amici filings, should lead this Court to impose a sanction
other than removal.
5
Mr. Jay's amicus curiae brief was filed jointly with the Niagara
County Public Defender's Office and the Niagara County Conflict
Defender's Office on February 6,2008.
-24
IV. PETITIONER'S CASE IS DISTINGUISHABLE FROM THE
BLACKBURNE DECISION.
The Commission argues that this Court's decision in Matter of
Blacl<bllrne, 7 N.Y.3d 213,818 N.Y.S.2d 824 (2006), supports the sanction of
removal here, going so far as to claim that the facts of Blackbllrne are
"fllnctionally indistinguishable" from the facts here. BR at 45. Preliminarily, as
this COllrt noted in Blacl<bllrne, precedent is of limited value when determining an
appropriate sanction in judicial disciplinary matters, each of which involves
unique facts and circumstances. "Judicial misconduct cases are, by their very
natllre, Slli generis." 7 N.Y.3d 213,219-20,818 N.Y.S.2d 824,828; see also
Matter of Dllcl<man, 92 N.Y.2d 141,153,677 N.Y.S.2d 248,254 (1998) ("[E]ach
jlldicial miscondllct appeal truly stands on its own facts.").
Moreover, there are several significant differences between the
Blacl<bllrne case and this case.
First, and most important, there is no evidence that Justice
Blacl<bllrne was under any type of psychological stress, depression or any other
mental condition at the time of her misconduct. Similarly, there is no indication
that Jllstice Blacl<burne sought any type of mental health counseling or treatment
following the incident in question. Thus, there was no basis upon which this
-25
COllrt could conclllde that Justice BlackbuTIle's misconduct was triggered by
mental health isslles or that Justice Blackburne posed no risk of similar futlIre
misconduct because she had been treated for her mental health problems. As
previollsly discllssed, the uncontroverted evidence here indicates that Jlldge
Restaino's actions were the unfortllnate result of mounting psychological stress,
wl1ich he has addressed through mental health treatment. Those facts mal<e the
present case far different from Blacl<burne.
Second, this Court made special note that Justice Blacl<burne SOllght
to minimize her responsibility for the misconduct. 7 N.Y.3d at 219,818 N.Y.S.2d
at 827. Indeed, the Referee and the majority of the Commission explicitly noted
that Jllstice Blacl<burne "lacl<ed forthrightness at the hearing and SOllght to
minimize her responsibility." Matter of Blackbume, 2005 WL 3221765
(Commission on Judicial Condllct, November 18, 2005). The opposite is tnle
here: JlIdge Restaino has been cooperative and truthful thrOUghOllt this
investigation, has expressed genuine remorse, and has not SOllght in any way to
minimize his responsibility for his misconduct.
Third, both this COllrt and the Commission found that Justice
Blacl<b1lrne's actions were motivated by antipathy toward the detective and the
police in general. The Commission agreed with the conclusion of the Referee that
-26
Jllstice Blacl(bllrne's "actions arose out of anger and annoyance toward the
police." Matter of Blackbllrne, 2005 WL 3221765. This Court observed that
Jllstice Blacl(bllrne effectively obstructed the lawnll efforts of a police detective to
pllrSlle a criminal investigation, and thus "became an adversary of the police," a
role "completely incompatible with the proper role of an impartial jlldge." 7
N.Y.3d at 221,818 N.Y.S.2d at 829. Her actions thllS demonstrated an attitllde
that made her something other than a "neutral arbiter." Id. Judge Restaino's
actions demonstrated no similar bias against any party or group. Indeed, as the
hearing testimony and the amicus briefs mal(e clear, except for March 11,2005,
Judge Restaino consistently demonstrated courtesy and respect to all who came
before him. Two of the briefs from amicus curiae -- representing specialty court
providers and attorneys for indigent defendants appearing before Judge Restaino
-- expressly attest to his fair and considerate treatment of defendants in Domestic
Violence Court. Althollgh Judge Restaino's actions on March 11, 2005 were
certainly llnacceptable, they were not motivated by any bias or animosity toward
anyone.
Finally, Justice Blacl(burne's conduct "facilitated the escape of an
accused violent felon," thereby creating an llnacceptable risl( of danger to the
pllblic. 7 N.Y.3d at 10, 818 N.Y.S.2d at 829. Justice Blacl(burne ordered a
-27
courtroom security officer to secretly escort a defendant out a bacl<: dOOf, thrOllgh a
secure hallway and stairway, to an exit from the courthollse -- while a detective
was waiting outside the courtroom door to arrest that defendant on charges of
robbery and assalllt. Justice Blackburne's actions placed at risl<:: the defendant;
her COllrtroom secllrity officer; other judges, jurors and court personnel using the
seCllre hallway and staircase; and, the general public. As noted by this Court,
Jllstice Blacl<buTIle's "rash and recl<less decision to release onto the street a
sllspected violent felon potentially posed a danger to the public." 7 N.Y.3d at 221,
818 N.Y.S.2d at 829. Judge Restaino's actions posed no similar risl< to the Pllblic.
In SLIm, the Blackburne case had exacerbating circumstances not
present here, and the present case has mitigating circumstances not present in
Blacl<bllrne. The fact that Judge Blacl<burne was llnfit to serve does not mean that
the same is tnle of Jlldge Restaino.
-28
CONCLUSION
Judge Restaino aclmowledges and accepts responsibility for his
miscondllct on March 11, 2005. His conduct that day was like nothing he had ever
done before or has ever done since. Indeed, it was the exact opposite of
everything he stood for and was l{11own for. In a word, it was an aberration.
Conunon sense tells lIS that there 111l1st have been a reason for such a
stril<ing single episode of aberrational conduct. The evidence at the hearing
provided that reason: his eruption in court was the result of severe psychological
stressors at worl( and home, exacerbated by his unrelenting service in high-volllme
and high-stress courts. Since that time, he has tal(en corrective measures to
address these stressors, and the experts agree that he poses no risl( of future
misconduct. A man of humble beginnings who has accomplished much in his life,
Judge Restaino should be allowed to return to the bench.
Dated: Bllffalo, New York

March 10,2008
~.~J
Buffalo, New Yorl( 14202
(716) 852-5533
-29
~tatr of .Rr\\1 ~ork
Q:ourt of 9pprel5
SCJC No. 82
Robert M. Restaino, Judge of OPINION
Niagara County, This opinion is uncorrected and subject to revision
Petitioner, before publication in the New York Reports.
Conduct,
Respondent.
Terrence M. Connors, for petitioner.

Edward Lindner, for respondent.
Niagara Falls Boys' and Girls' Club, Inc., et al.; Bar
Association of Niagara County, et al.; New York State Association
of City Court Judges; Mary Ann Oliver, Esq., et al.; Daniel T.
Lukasik, Esq., &c.; City of Niagara Falls Police Department, et
al.; Phi Alpha Delta .Law Fraternity, International; Family and
Children's Services of Niagara, Inc., Elizabeth Brady and
Jennifer Hall; David J. Farrugia, &c., et al.; City of Niagara
Falls, New York, amici curiae.
Per Curiam.
At petitioner's request, we review a determination of
the State Commission on Judicial Conduct which, with one member
dissenting as to sanction, sustained a charge of misconduct and
recommended that petitioner be removed from office (see NY Const,
- 1 -
- 2 - No. 82
art VI, § 22; Judiciary Law § 44). In seeking r~view, petitioner
conce·des th.e fa,cts as alle.ged, and challeng,es only the
Commission's recommendation.
Based on the evidence adduced at the three-day hearing
before a designated Referee, the Commission found as follows.
Petitioner has been a Niagara Falls City Court Judge since 1996
and, as relevant, presided weekly over the Domestic Violence Part
from 1999 until March 11, 2005, the date of the conduct in
question. The domestic violence court 1 handles cases of
defendants who, after arraignment on domestic violence charges,
are screened and determined eligible for a court-supervised, 26
week program of counseling and education. Defendants in the
program are required to avoid substance use, undergo counseling
and periodic testing, and to report weekly as a way of monitoring
their progress. Absent a violation of an imposed condition2 for
which they face potential sanctions (including revocation of
release and imposition of bail), defendants are released each
week on their own recognizance. Following their appearance and
unless permitted to leave, the practice in petitioner's court was
1 Domestic violence court$ are dedicated to enhancing victim

safety and holding offenders accountable, facilitating victim
access to necessary services, and ensuring intensive judicial
monitoring, among other things.
2 According to petitioner, the practice in his court was to

sanction a defendant who violated such conditions as not
appearing in court, testing positive for drugs or not attending
designated counseling.
- 2
- 3
to requir-e defendants to r-ernain in the -courtroom until th€
completion of all scheduled procee-din.gs that .day.
On the morning of March 11, 2005, petitioner began his
day by presiding over the first set of about 70cas·es sch<eduled
for their weekly hearings. The record shows that the courtroom
was full and that, in addition to defendants awaiting their
individual appea~a-nce.s, ot.hers wer'e present, inclu-ding defense
attorneys and prosecutors, court p,ers·onnel an·d security officers,
as well as representatives from counseliDg programs.
Additionally, the courtroom was open for th'ose enterin,g an·d
lea~ing, including members of the public, relatives and other
interested persons.
During the' first hour of schedule.-d app:earan·ces,
petitioner handled the ,cases of over 30 defendants in r,outine
fashion. Of these, petitioner released 11 on their own
recognizance and directed that they remain in court until all
proceedings were concluded. At appro~imately 10:00 A.M., a cell
phone or other similar device rang in the back of the courtroom.
Addressing all defendants present, petitioner stated:
"Now, whoever owns the instrument that is

ringing, bring it to me now or everybody
could take a week in jail and please don't
tell me I'm the only on-e that heard that."
After a fruitless inquiry of two defendants about the device,
petitioner issued a second warning:
Everyone is going to jail; every single

person is going to jail in this courtroom
unless I get that instrument now. If anybody
- 3
- 4 - N·o. .s 2
believes I'm kidding, ask some of the folks
that have been here for a while. You are all
·going. "
Following these warnings , petitioner 'recessed for five minutes,
directed court officers to locate the ringing device and
instructed them that no one was permitted to leave the courtroom.
As petitioner testified, during his recess, he did not reconsider
withdrawing his threats. Upon returning, petitioner learned from
a court officer that the device had not been discovered.
When the device rang at the back of the courtroom, a
defendant was standing before petitioner at a podium prepared to
issue his status report. Petitioner queried whether defendant
knew who owned the device, to which def,endant responded, "No. I
was up here." Without equivocation and consideration of the

./
proper legal bases for doing so (see CPL 510.30)3 -- and
notwithstanding his knowledge that defendant, who was standing
before him, did not own or otherwise possess the device -
petitioner revoked defendant's recognizance and set bail at
$1,500.
Petitioner proceede·d to summon each subsequent
defendant remaining on the calendar -~ 34 in all -- and
3 Section 510.30(2) (a) requires, in relevant part, that the

following criteria be employed in determining an order of
recognizance or bail: "the kind and degree of control or
restriction that is necessary to secure [a defendant's] court
att·endance when r'equired," as informed by ·defendant' s character
and reputation, employment and financial resources, family ·ties
and length of residence in the community, prior criminal record
and attendance record in prior proceedings.
- 4
- 5 - .No. 82
questioned each about their knowledge and/or ownership of the
device. Dissatisfied with their responses, petitioner revoked or
denied recognizance release and set bail. For two previously.on
release, peti tion.er increase·d bail. After summarily disposin·g of
the remaining calendared cases, petitioner recalled 11 defendants
whom he had previously released before the device rang and, after
similarly questioning them about the device, revoked their
recognizance release and imposed bail. In total, petitioner
committed 46 defendants into custody. Of these, five had their
release revoked; for three, it was their first appearance; the
remaining had appeared on prior occasions. Of those committed,
only one had an attorney present.
Based on petitioner's comments made while questioning
certain defendants, it is clear that he was disturbed by the
breaGh of courtroom decorum caused by the ringing device. The
following are examples of petitioner's unsettling comments:
"Y,ou know, for some of you folks, this 0urts

me more than any of you imagine because
someone in this courtroom has no
consideration for you, no consideration for
me and just doesn't care .
.. . .
, ~\ ...
"[W]hat I am really, really having a hard

time with [is] that someone in this courtroom
[] is so self-absorbed, they kind of figure
they're going to be able to establish the
.bail and it won't matter so screw all of the
rest of you people. Some of you people may
not be in the [same] economic situ.ation [as]
this selfish person. [is who] put[s]
their interests [sic] above everybody else's.
They don't [sic] care what happens to
- 5
- 6 - No.. 8.2
anybody.
"I hope [each of y'ou are] wat-chin'g ev'ery .one

of these people walk up here and deal with
the reassessment of bail simply because they
don't [sic] want to deal with the obvious . .
. .. It's that [phones are] n6t permitted in
the courtroom . . . . [1]f you don't want to
give me the instrument, now you're
compounding something that is s·o simpl€ an,d
because you don't have the backbone and you
don't w.ant to b.e responsible f'or it."
Several defendants, when questioned about the instrument, tried
to appeal to petitioner's better reason and, in some cases,
pleaded with, him for mercy. One ,defendant, for example, exhorted
petitioner to rethink his approach to an otherwise legitimate
courtroom toncern that could be handled differently, stating: "I
think the more people you send to jail, [the] less likely [the]
culprit is to come forwar.d," to which petitioner respon,ded:
"he'll go right to jail with everybody else." In other
instances, one defendant pleaded that he had a doctor's
appointment he would miss if jailed; others pleaded that they
would lose their new jobs, that they did not have the resources
to post bail. Oth·ers plea·d·ed for simple fairness, eX'claiming
that "this ain't right," to which petitioner acknowledged:
"You're right, it ain't right. Ain't right at all." Another had
a scheduled appointment for counseling pursuant to an imposed
condition, while another had his mother "in surgery [that]
morning. " Finally, anot,her pleaded that he had ·a bi-weekly
scheduled visit with his "little girl" that he would miss if
- 6
-. 7 - No. 82
jailed. These pleas fell on deaf ears .

..,.
At one point, peti ti·oner conunented that defendants'
collective conduct resembled "a m·ob movie," referri'ng to their
perceived unwillingness to come forward with the offending
device, stating:
"I got to tell you something, you're all

pretty good when you come up to this
microphone, and if you saw somebody got [sic]
shot or killed, you would say, 'I didn't see
nothing [sic]. I heard shots.' And if a
body dropped right in front of you, you would
say [J 'I didn't see a thing. ,n
Upon commitment to the custody of the Niagara Falls
Police Department, the 46 defendants were transported to the City
Jail, booked, searched and their property confiscated and placed
into overcrowded holding cells. Following several hours of
detention, 32 defendants posted bail; the remaining 14 could not,
however, post bail and shackled, with their wrists handcuffed
to a lock box attached to a waist chain -- were subseq~ently
transferred to the Niagara County Sheriff's custody and
transported by bus to the County Jail 30 minutes away, arriving
at approximately 3:15.
Following the proceedings, petitioner left the bench
and attended a scheduled tour of an Erie County juvenile
detention facility. During the tour, petitioner received a page
from his clerk who informed him that the press had inquired about
his actions that morning. In response, petitioner instructed his
clerk to have all paperwork necessary for defendants' release
- 7
- 8 - N,o. 82
ready upon his return for him to execute release orders. 4
Petitioner returned to the courthouse··at around 3:DO P.M.
Approximately one hour later, he ordered the 14 defendants
released, but they were not provided with transportation back to
Niagara Falls.
By formal written complaint in June 2006, ~he
Commission served petitioner with one charge alleging that he
violated several of the Rules Governing Judicial Conduct,
sp·ecifically 22 NYCRR 10'0.1, 100.2(A), 100.3(B) (1), lOO.3(B) (3)
and 100.3 (B) (.6) ,5 by arbitrarily revoking or de.nying the
4 In this regard, p~titioner testified, contrary to the

C'ornmission's finding, that he realized, and decided to correct,
the error of his action prior to, and independent of, his clerk's
informing him of the press' inquiry. Petitioner testified that
as he was taking the tour, he began "thinking abortt what I've
just been in, [and] I begin [sic] to believe that I've got to
make a call to get to my clerk to correct what I did. I've got
to undo this [] a.t the end of the tour." Ul t·imat·ely, however l'
the precise motivation for petitioner's corrective action is, in
light of the gravity of his conduct, inconsequential.
5 Section 100.1 states:
"An independent and honorable judiciary is

indispensable to justice in our society. A
judge should participate in establishing,
maintaining and enforcing high standards of
conduct, and shall personally observe those
standards so that the integrity and
independence of the judiciary will be
preserved. The provisions of this Part are to
be construed and applied to further that
obj ecti v.e. II
Section 100.2(A) provides:
- 8
~ 9 - No. 82
recognizance release status~of the 46 individuals in violation of
CPL 510. 30 and, cons.equ,ently, d'epri ving them of their :l.iberty.
Following a three-day hearing, the Honorable Edgar C.
NeMoyer, as Referee, determine·d that the Commission ·e·,stabltshed
"A judge shall respect and comply with the

law and shall act at all times in a manner
that promotes public confidence in the
integrity and impartiality of the judiciary."
Section 100.3(B) (1) provides:
"A judge shall be faithful to the law and

maintain professional competence in it. A
judge shall not be swayed by partisan
interests, public clamor or fear of
criticism. II
Section 100.3(B) (3) proyides:
"A jud.ge shall b·e· patient,dignifi'ed and

courteous to litigants, jurors, witnesses,
lawyers ~nd others with whom the judge deals
in an official capacity, and shall require
similar conduct of lawyers, and of staff,
court officials and others subject to the
judge's direction and co·ntrol."
Finally, section 100.3(B') ("6) provides:
"A judge shall accord to every person who has

a lega~ interest in a proceeding, or that
person's lawyer, the right to be heard
according to law. A judge shall not initiate,
permit, or consider ·ex parte communications,
or consider other communications made to the
judge outside the presence of the parties or
their lawyers concerning a pending or
impending proceeding."
- 9
- 10 - No. 82
6
its factual allegations. In sum and substance, petitioner
testified that he was experiencing de.ep-s.eated diffi·culties in
his marriage, such as a la·ck of communicati-on an.q intimacy.
petitioner explaine~ that his way of dealing with them was to
"bury" himself into his work and sup'press the marital strains hoe
was experiencing. With regard to ringing devices in the
courtroom, petitioner testified that ordinarily court officers
wQuld go "about the busin,ess of lo·catin.g it and ·eit.her retri·eving
it or so~ehow addressing the issue right there" and he would
continue with the court's business. Petitioner explained his
skewed response of March 11 thusly:
"I wa's attempting to locate the instrument

and [was] frustrated by the fact that that
wasn't working and that I had indicated to
·all of the folks that were in the courtroom
[], many of whom ha·d been wi th m·e for s·orne
time and were aware of . . . the perimeters
of the program and I certainly know that when
I said that, that's what was going on in my
mind. I read [the transcript of the
incident] today and I know that [IJ certainly
[did] not exercis [e] good j udgrn'ent . !'
"I can only say to you that . [my

reaction was] a function of. . letting my
own difficulties [] bleed into th.e courtroom."
Petitioner added that he is cognizant of the gravity of his
6 In his testimony, petitioner acknowledged that he

perverted the bail system by using it as an instrument of
punishment, rather than "for securing a defendant's attendance at
c·ourt." As petitioner conceded, "I was thinking in terms of
sanctions and not in terms of the CPL."
- 10
- It - No. 82
conduct, and that it would .notrecur: "I've learne-d that
supp,ress-in-g the kin-ds o-f things that oc·cur in one's life isn't
the healthiest way of addressing them."
Among others, two psychiatrists peti tionerconsul te-d
after the incident also testified. Dr. .opined that
petitioner was experiencing "a somewhat anxious crisis state of
mind" due to a strained marriage, as described by petitioner.
Dr. explained the events of March 11, 2005 as petitioner
becoming "very frustrated with his marital situation and for
reasons which I don't know, why on that particular day he erupted
in an odd and peculiar mann·er, " he tried to displace his
frustrations about his wife's failure to communicate with him by
having "people listen to him" in the courtroom. Dr.
characterized petitioner-' s eruption as "the last straw" of a
suppressed frustration, _but opined that petitioner is unlikely to
repeat his conduct of March 11. Dr. a psychologist,
agreed with Dr. conclusion, opining that the ringing
cell phone was "the straw that broke the camel's bac.k;" that
marital stressors "had been building up at home," and that
petitioner placed a "gre'at deal of time into his work" and
neglected to address, head on, the problems he was facing.
The Referee concluded that petitioner violated the
Rules of Conduct as charged. He acknowledged petitioner's
"expressed remorse," which "appeared to be sincere." The Referee
also considered the "persuasive testimony" of Drs.. and
- 11
- 12 - No. 82
and toncluded that petitioner "had been an efficient and
competent judge outsi·de of this inci·dent and i·s well regarded in
the conununi ty. ".
Following oral argument, the Comrnissi·on re-commended, by
a vote of 9 to 1, that petitioner be removed fro~ the Bench. The
Corrnnission conclud·ed that petition·er' s actions '" excee-ded all
measure of acceptable judi~ial conduct,' bringing the judiciary
into disrepute and irreparably damaging public confidence in his
ability to serve as a judge" (quoting Matter of Blackburne, 7
NY3d 213, 221 [2006J). Th·e Commission opined that, in depriving
4'6 i.ndividuals of "their liberty out of-' pi-que and frustration,"
petitioner Habandone-d his r·ole as a reasonable, fai,r jurist."
The Commission further noted that in the face of numerou·s
opportunities petitioner failed to reconsider the "enormity" of
his actions and that, "[iJ n summarily committing the defen'dants
into custody, [heJ acted without any semblance of a lawful basis,
disregarding the statutory criteria for bailor contempt of
court. " Final~ly, the Commission reject.ed p;eti tioner' s proffere·d
mitigating circumstance, among others, that his conduct was the
product of psychological stressors, concluding that his
explanation was inexcusable and insufficient under the
circumstances.
Commissioner Felder dissented and voted to censure
petitioner, concluding that, in light of petitioner's otherwise
lengthy, distinguished career, his "two hours of inexplicable
- 12
- 13 - No. 82
madness" should not result in removal. Commissioner Emery
concurred with the majority and, in response to Commissioner
Felder's dissent, opined that Blackburne (7 NY3d 213) controlled.
Discussion
On review to this Court, petitioner limits his argument
to the issue of sanction, arguing that removal is unwarranted in
light of the proffered psychological evidence (which he claims
the Commission ignored) and that his conduct was an aberration in
an otherwise unblemished judicial career. He argues that, under
the circumstances, such evidence, though not excusing his
conduct, explains it and enables this Court to adequately
determine his fitness to continue serving on the Bench.
Additionally, petitioner points to other mitigating factors,

. I
including remorse and contrition, an acknowledgment of the
impropriety of his conduct and.the assurance that· it will not be
repeated. In short, petitioner argues that in reviewing t~e
Commission's recomrnend.ation, our goal is '" to att'empt to assess
[his] fitness based on his prior record'" (quoting Matter of
Duckman, 92 NY2d 141, 156 n 6 [1998]). Notwithstanding
petitioner's sincerity, we agree with and accept the Commission'~
recommendation.
Petitioner cannot dispute that "[p]unishing people by
setting exorbitant bail . . . demonstrates a callousness both to
the law and to the rights of criminal defendants" (Matter of
- 13
- 14 - N-o. 82
Bau.er, 3 NY3d 15'8, 163 [2004]; see also Matter of Sardina v State
Commn. on Jud. Con-duct, 58 NY2d 28-6, 289 [1983]). Admittedly,
bail-setting and recognizance release determinations are
generally "matters of discretion .rather than law"- (CPL
530.10 [2J ). But when such tools of judicial a·dministration are
abused as punitive instruments to deprive a person of his or her
liberty -- a right of the most fundamental order -- such conduct
is inexcusable and does violence to the court's integrity and the
inviolable public trust (se-e Matter of LaBelle, 79 NY2d 350
[1992]). Th~s is especially true where, as here, defendants were
~uilty of no wrongdoing. We have no reason to disbelieve
petitioner's assertion that he was simply attempting to uph-old
the integrity of his court. His method, however ~- an
overreaction to a "minuscule matter'" (Matter of Roberts, 91 NY2d
93, 95 [1997J) -- was no less egregious, no less skewed, and no
less damaging to the institution, generally, and to defendants'
right to due process of law, specifi-cally (Sardina, 58 NY2d at
291) .
Petitioner insists that he remains fit to serve on the
Bench, pointing to his prior record of exemplary service,7 his
remorse and contrition, and the evidence that his conduct was the
Petitioner has, indeed, made notable contributions to the

7
administration of justice .and, -as evidenced by the numerous
amicus curiae submissions in support of his review, is well
respected within the community.
- 14
- 15 - No. 82
product of psycholo·gical stressors. 8 In this ar'ena, however,
weighty competing interests abound, and we must take care to
carefully balance them (see Matter of Hart, 7 NY3d 1, 8-9
[2006]). Thus, we have long defined the purpose of a judicial
disciplinary proceeding not in terms of punishment for its own
sake, "but [for] the imposition of sanctions where necessary to
safeguard the Bench from unfit incumbents" (Duckman, 92 NY2d at
152) .
Indeed, the Rules under which petitioner was charged
reflect this concern (see Section 100.1 ["An independent and
honorable judiciary is indispensable to justice"]; Section
lOO.2[A] [must "respect and comply with the law and shall act at
all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary"]; see also Sections
100.3 [B] [lJ, [3J, [6J; Matter of Lonschein, 50 NY2d 569, 572
8 Petitioner argues that by failing to recognize the

proffered evidence of psychological stressors, and by holding
judges to a higher standard than the general public, the
Commission "perpetuates the negative stigma feared by any judge
who should seek treatment for stress or other psychDlogical
problems." Having concluded that the Commission did not ignore
petitioner's proffered explanation, we disagree with petitioner's
hypothesis, which implies that holding judges to a higher
standard of conduct is mutually exclusive with and contrary to an
open system that encourages all members of the Bench to seek
counseling as needed. Indeed, the State has been proactive in
ensuring that members of the Bench and Bar have a~cess to
critical services in strict confidence. The New York State
Lawyers Assistance Trust works closely with local bar
associations to ensure that memb·ers of the Bench and Bar have
ready access to early intervention and assistance to ensure that
they do not reach a critical stage in their personal dilemmas.
- 15
- 16 - No. 82
[1980J [judges' actions "must be measured against exacting
~tandards of scrutiny to the end that public perception of the
integrity of the judiciary will be preserved"J). As petitioner
correctly notes, we have repeatedly stated that the ultimate
sanction should be r'eserved f·or "truly egregious circumstanc,es~'
that extend beyond the limits of "even extremely p·oor judgm.ent"
(Matter of Kiley, 74 NY2d 364, 369-370 [1989]; see also Matter of
Sims, 61 NY2d 3'49, 356 [1984 J ). It is also true 'o'- however, "that
the 'truly egregious' standard is measured with due regard" to
the higher standard of conduct to which judges are held (Matter
of Assini, 94 NY2d 26, 31 [1999J ['citation omitted]), and in our
view , petitioner's cond'uct qualifies as "truly egregious."
While we ',duly note petitioner's mi tigati,ng factors
particularly his service record -- we have never defined fitness
as resting solely on technical competencean~ have specifically
rejected "any numerical yardstick for determining unfitness"
(Duckman, 92 NY2d at 154). Of ultimate importance in that
calculus must be the n~ture and gravity of the proven wrongdoing
(see Matter of Aldrich v State Commn. on Jude Conduct, 58 NY2d
279, 283 [1983]). Thus, we have previo~sly stated that in rare
cases "no amount of [mitigationJ will overrid'e inexcusable
conduct" (Bauer, 3 NY3d at 166) sufficient to restore the
public's trust in the judge's ability to faithfully execute his
or her duties (see Blackburne, 7 N·Y3d at 22 0, 221). " [AJ
cornerstone of our democracy" is the integrity of our judiciary
- 16
- 17 - No. 82
(Duckman, 92 NY2d at 156), and judges must be mindful that their
actions "reflect, whether designedly or not, upon the prestige of
the judiciary" (Lonschein, 50 NY2d at 572).
Here, the public which petitioner serves has, we think,
irretrievably lost "confidence in his ability to properly carry
out his" constitutionally-mandated responsibilities in a fair and
just manner (Aldrich, 58 NY2d at 283; see also McGee v State
Commn. on Jud. Co'nduct, 59 NY2d 870, 871 [1983]; Kuehnel v State
Commn. on Jud. Conduct, 49 NY2d 465, 469 [1980]). By
indiscriminately committing into custody 46 defendants,
petitioner deprived them of their liberty without due process,
exhibited insensitivity, indifference and a callousness so
reproachable that his continued presence on the Bench cannot be
tolerated. We cannot overstate that the public must be aple to
"continue to rely upon the impartiality of tho'se who have been
chosen to pass judgment on legal matt~rs involving their lives,
liberty and property" (Sardino, 58 NY2d 286, 290-291; see also
Matter of Backal, 87 NY2d 1, 6 [1995]; Matter of Eswo,rthy, 77
NY2d 280, 282 [1991] [duty to conduct oneself in manner that
"inspire (s). public confidence "in the int'egri ty, fair'-mindedn'ess
and impartiality of the judiciary"]). And here, we have serious
doubts that this breach in trust is reparable given petitioner's
conduct (see 22 NYCRR 10'0.3[8] [IJ, [3], [6]; see also Sardino, 58
NY2d at 291). As the Commission opined, it is ir.onic. that
petitioner displayed the very attributes by which he accused and
- 17
- 18 - No. 82
summarily punished each defendant. Significantly, petitioner had
more than 46 chances to correct himself and failed to do so.
Accordingly, the determined sanction should be
accepted, without costs, and Robert M. Restaino removed from
office.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and Robert M.

Restaino removed from the office of Judge of the ~iagara Falls
City Court. Opinion Per Curiam. Chief Judge Kaye and Judges
Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott
took no part.
Decided June 5, 2008
- 18
~terr of Jlr\\1 ~ork
[ourt of gpprels
HON. JUDITH S. KAYE. Chief Judge, presiding.
SCJC No. 82
Niagara County,
Petitioner,
Conduct,
Respondent.
The petitioner in the above entitled matter appeared by Connors & Vilardo, LLP; the
respondent appeared by Robert H. Tembeckjian, Esq.; and the amici curiae appeared by
Robert Viola, Esq.; Anthony D. Parone, Esq.; John J. Delmonte, Esq.; John M. Aversa, Esq.;
Mary Ann Oliver, Esq.; Sugarman Law Firm, LLP; Walsh Roberts & Grace; David J.
Farrugia, Esq.; Thomas M. O'Donnell, Esq.; and Lipsitz Green Scime Cambria, LLP.
The Court, after due deliberation, orders and adjudges that the determined sanction is
accepted, without costs, and Robert M. Restaino is removed from the office of Judge of the
Niagara Falls City Court. Opinion Per Curiam. Chief Judge Kaye and Judges Ciparick,
Graffeo, Read, Smith and Jones concur. Judge Pigott took no part.
I certify that the preceding contains a correct record of the proceedings in this matter in
the Court of Appeals and that the papers required to be filed are attached.
I
Stuart M. Cohen, Clerk of the Court
Court of Appeals, Clerk's Office, Albany, June 5, 2008

~tact of Rr\\1 ~ork,
Q:ourt of gpptals
At a session ofthe Court, held at Court of
on the .......f.iftb. ................................ day
1
~ June2008
01···································· .. ·········
f rr.stnt, HON. JUDITH S. KAYE. Chwf Judge, presiding.
In the Matter of the Proceeding Pursuant to Section

44, subdivision 4, of the Judiciary Law in Relation to
ROBERT M. RESTAINO,
The State Commission on Judicial Conduct determined on November 13, 2007, that Hon. Robert M. Restaino
should be removed from judicial office;
That determination of the Commission, its findings of fact, its conclusions oflaw, and the record of the
proceedings upon which the determination is based were transmitted on November 14, 2007 to the Chief Judge of
the Court of Appeals in accordance with subdivision (a) of section 22 of Article 6 of the New York State
Constitution and with Judiciary Law, section 44, subdivision 7;
The service and notice requirements ofNew York State Constitution, Article 6, section 22, subdivision (a)
and of Judiciary Law, section 44 subdivision 7, were complied with on November 21, 2007 by certified mail, return
receipt requested;
Proof of service was obtained at the Court of Appeals that Hon. Robert M. Restaino received on November
23, 2007 the determination of the Commission, fmdings of fact, conclusions of law and record of the proceedings
upon which the determination is based; a request for review was made on December 6, 2007; this proceeding was
heard by the Court on April 22, 2008 and the determined sanction was accepted by the Court of Appeals on June 5,
2008; NOW THEREFORE, in accordance with New York State Constitution, Article 6, section 22, subdivision (d)
and Judiciary Law, section 44, subdivision 9, it is
ORDERED that the determined sanction is accepted, without costs, and Robert M.Restaino is removed from
the office of Judge of the Niagara Falls City Court, Niagara County. Opinion Per Curiam. Chief Judge Kaye and
Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott took no part.
7
Stuart M. Cohen
Clerk of the Court
MATTER OF ROBERT M. RESTAINO
COURT OF APPEALS REVIEW
Record for Review: Joint Record for Review of a Determination of the State
* For inquiries regarding Court of Appeals Records, please contact the Records Access Officer:
inforequest@cjc.ny.gov

IV. Documents Received Into Evidence at The Hearing

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IV. Documents Received Into Evidence at The Hearing

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NEW YORK STATE

COMMISSION ON JUDICIAL CONDUCT

RAOUL LIONEL FELDER, CHAIR

Honorable Judith S. Kaye

Dear Chief Judge Kaye:

Very truly yours,

cc: Robert H. Tembeckjian, Esq.

HOI1. Raoul Lionel Felder, Chairman

Dear Mr. Felder:

Chief Judge Judith S. Kaye has asked me to acknowledge receipt on

Very truly yours,

cc: Hon. Ann T. Pfau

November 15, 2007

Hon. Robert M. Restaino

Niagara Falls, New York 14305

Dear Judge Restaino:

In accordance with section 2:, subdivision a, of

1 draw your particular attention to section 44,

IIUpon completion of servicE, the

determination of the commission,

its findings and conclusions and

the record of its proceedings shall

be made public and shall be made

available for public inspection at

the principal office of the commis­

.s~Qn .and at the office of the clerk

of the court of appeals. The jUdgE

involv~d may either accept the de­

termination of the cornrnissiorl or

make written request to the chief

jUdgE, wit~in thirty days after re­

ceipt of sDch determination, for c

Hon. Robert M. Restaino page 2

review thereof by the court of ?p­

cc: HOD. Raoul Lionel Felder

Return Receipt Requested

Hon. Raoul Lionel Felder, Chairman

State Commission on Judicial Conduct

61 Broadway, 12th Floor

New York, New York 10006

Dear Mr. Felder:

Chief Judge Judith S. Kaye has asked me to acknowledge receipt on

Very truly yours,

~\~~C/~ f\. \l~~~

cc: Hon. Ann T. Pfau

Novembe~ 21, 2007

Hon. Robert M. Restaino

Niagara Falls, New York 14305

Dear Judge Restaino:

In accordance with section 22,- subdivision a, of

I draw your particular attention to section 44,

"Upon completion of service, the

review thereof by the court of ap­

cc: Hon. Raoul Lionel Felder

Return Receipt Requested

November 26, 2007

Robert H. Tembeckjian, Esq.

Re: Matter of Hon. Robert M. Restaino,

Dear Mr. Tembeckjian:

Please be advised that proof of service of the Commission's file in

A copy of the post office receipt is enclosed.

Very truly yours,

the principal office of the commis

involv~d may either accept the de

jUdgE, wit~in thirty days after re

review thereof by the court of ?p

review thereof by the court of ap