NEWS RELEASE - Government of New York

ROBERT H. TEMBECKJIAN

ADMINISTRATOR & COUNSEL

NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

61 BROADWAY, SUITE 1200 NEW YORK, NEW YORK 10006

646-386-4800 646-458-0037

TELEPHONE

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NEWS RELEASE

February 26, 2019

MARISA E. HARRISON

PUBLIC RECORDS OFFICER

Contact:

Marisa E. Harrison, Public Records Officer (518) 453-4614

Town Court Justice in Wayne County Should Be Censured for Failing to Ensure a Defendant's Right to Counsel

The New York State Commission on Judicial Conduct has determined that Kathy Wachtman, a Justice of the Huron Town Court, Wayne County, should be censured for failing to protect a defendant's due process rights by holding a preliminary hearing in his lawyer's absence.

Judge Wachtman agreed to the censure.

In April 2017, while presiding over a case involving drug and traffic charges, Judge Wachtman denied the defense counsel's request to adjourn the preliminary hearing, which had been rescheduled on short notice, notwithstanding that the defense counsel had an actual commitment in another court. The judge conducted the proceeding in the lawyer's absence, failed to advise the defendant of his rights and made no inquiry as to whether the defendant wished to proceed without counsel. Judge Wachtman then failed to inform the defendant of his rights to cross-examine the prosecution's witnesses, to call his own witnesses and to testify on his own behalf. Belatedly, after already finding reasonable cause to believe that the defendant had committed a felony, Judge Wachtman granted the defendant's request to question the prosecution's witnesses.

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In its determination the Commission stated: "[Judge Wachtman's] denial of defense counsel's request for an adjournment of the preliminary hearing, despite being advised of the attorney's actual engagement in federal court, deprived the defendant of his fundamental right at a critical state of the criminal proceedings against him." The Commission stated that the judge's denial of defense counsel's request for an adjournment of the preliminary hearing was "inexcusable" and "deprived the defendant of his right `to have the assistance of an attorney at every state of the legal proceedings against him.'"

In accepting the jointly recommended sanction, the Commission noted that the judge's misconduct was limited to a single case and that she now "appreciates that judge must ensure that before decisions are rendered, defendants are accorded due process."

Judge Wachtman, who is not an attorney, has served as a Justice of the Huron Town Court since 2013. Her current term as expires on December 31, 2021.

The Commission Proceedings

Judge Wachtman was served with a Formal Written Complaint dated November 28, 2018, containing one charge.

On January 15, 2019, the Administrator of the Commission, Judge Wachtman and Judge Wachtman's attorney entered into an Agreed Statement of Facts, stipulating as to the facts and sanction and waiving further submissions and oral argument.

The Commission accepted the Agreed Statement on January 31, 2019.

The Commission Determination

The Commission filed a determination dated February 7, 2019, in which 10 members concurred: Joseph W. Belluck, Esq. (the Commission Chair), Paul B. Harding, Esq. (the Vice Chair), Jodie Corngold, Judge John A. Falk, Taa Grays, Esq., Judge Leslie G. Leach, Judge Angela M. Mazzarelli, Judge Robert J. Miller, Marvin Ray Raskin, Esq., and Richard A. Stoloff, Esq.

One member, Akosua Garcia Yeboah, was not present.

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Statement by Commission Administrator

Commission Administrator Robert H. Tembeckjian made the following statement.

"It is fundamental to the role of a judge to ensure that defendants are not only apprised of their rights but also afforded a meaningful opportunity to exercise those rights. Derelictions of such essential duties, in even a single case, are serious violations of the rule requiring judges to be faithful to and professionally competent in the law. To her credit, Judge Wachtman accepted responsibility and is expected to honor the rules scrupulously going forward."

Court of Appeals Review

The Commission transmitted its determination to the Chief Judge of the Court of Appeals, pursuant to Judiciary Law Section 44, subdivision 7. Judge Wachtman received it on February 19, 2019, and the Commission was subsequently notified by the Court of Appeals that service was complete. Consequently, the matter is now public.

A judge may either accept the Commission's determination or, within 30 days from receipt, make a written request to the Chief Judge for a review of the determination by the Court of Appeals.

Pursuant to Judiciary Law Section 44, subdivision 7, if Judge Wachtman does not request review by the Court of Appeals, the Commission will censure her in accordance with the determination.

If a Commission determination is reviewed by the Court of Appeals, the Court may accept the determined sanction, impose a different sanction including admonition, censure or removal, or impose no sanction.

Statistics Relating to Prior Determinations

Since 1978, the Commission has issued 326 determinations of censure against judges in New York State. The Commission has issued 172 determinations of removal and 270 determinations of admonition.

The Court of Appeals has reviewed 99 Commission determinations. The Court accepted the Commission's sanctions in 83 cases (74 of which were removals, six were censures and three were admonitions). Of the remaining 16 cases, two sanctions were increased from censure to removal, and 13 were reduced: nine

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removal determinations were modified to censure, one removal was modified to admonition, two censures were modified to admonition, and one censure was rejected and the charges dismissed. The Court remitted one matter to the Commission for further proceedings.

Counsel

In the proceedings before the Commission, Judge Wachtman was represented by Douglas M. Jablonski, Esq., 12061 Main Street, Wolcott, NY 14590, (315) 5941066.

The Commission was represented by Robert H. Tembeckjian, Administrator and Counsel to the Commission; John J. Postel, Deputy Administrator in Charge of the Rochester office; and Senior Attorney M. Kathleen Martin. Investigator Betsy Sampson and Intern Colleen Sheller assisted in the investigation.

Background Information on Judge Wachtman

First took office: Current Term Expires: Judicial Salary:

2013 December 31, 2021 $12,429 (Source: )

Members of the Commission

The Commission members serve four-year terms. A list of members is appended.

The Public File

The determination is attached. The record of the proceedings upon which the determination is based is available for inspection by appointment during regular business hours at the Commission's three offices:

61 Broadway Suite 1200

New York, New York 10006

Corning Tower, Suite 2301 Empire State Plaza

Albany, New York 12223

400 Andrews Street Suite 700

Rochester, New York 14604

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MEMBERS OF THE STATE COMMISSION ON JUDICIAL CONDUCT

Member Joseph W. Belluck, Esq., Chair Paul B. Harding, Esq., Vice Chair

Jodie Corngold Taa Grays, Esq. Hon. John A. Falk Hon. Leslie G. Leach Hon. Angela M. Mazzarelli Hon. Robert J. Miller Marvin Ray Raskin, Esq. Richard A. Stoloff, Esq. Akosua Garcia Yeboah

Appointing Authority Governor Andrew M. Cuomo Assembly Minority Leader Brian M. Kolb Governor Andrew M. Cuomo Former Senate Minority Leader Andrea Stewart-Cousins

Chief Judge Janet DiFiore Chief Judge Janet DiFiore Chief Judge Janet DiFiore Governor Andrew M. Cuomo Assembly Speaker Carl E. Heastie Former Senate President Pro Tem Dean Skelos Governor Andrew M. Cuomo

Term End March 31, 2020 March 31, 2021 March 31, 2019 March 31, 2020 March 31, 2021 March 31, 2020 March 31, 2022 March 31, 2022 March 31, 2022 March 31, 2019 March 31, 2021

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