STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

In the Matter of the Proceeding

Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to
DETERMINATION
JAMES J. PIAMPIANO,

a Justice of the Supreme Court,

Monroe County.

THE COMMISSION:

Joseph W. Belluck, Esq., Chair

Paul B. Harding, Esq., Vice Chair
Honorable Rolando T. Acosta
Joel Cohen, Esq.
Jodie Corngold
Richard D. Emery, Esq.
Honorable Thomas A. Klonick
Honorable Leslie G. Leach
Richard A. Stoloff, Esq.
Honorable David A. Weinstein
Akosua Garcia Yeboah

APPEARANCES:

Robert H. Tembeckjian (John J. Postel and David M. Duguay, Of Counsel)

for the Commission

John F. Speranza for the Respondent

The respondent, James J. Piampiano, a Justice of the Supreme Court,

Monroe County, was served with a Formal Written Complaint dated November 2, 2016,

containing two charges. The Formal Written Complaint alleged that respondent made
prohibited public comments about a pending case and, in a post-trial proceeding, was

discourteous to the prosecutor in denying his attempt to be heard.

On February 15, 2017, the Administrator, respondent's counsel and

respondent entered into an Agreed Statement of Facts pursuant to Section 44, subdivision

5, of the Judiciary Law, stipulating that the Commission make its determination based

upon the agreed facts, recommending that respondent be censured and waiving further

submissions and oral argument.

On March 9, 2017, the Commission accepted the Agreed Statement and

made the following determination.

1. Respondent has been a Justice of the Supreme Court, Monroe

County, since January 1, 2016. His term expires on December 31, 2029. Respondent

served previously as a Judge of the County Court, Monroe County, from January 1, 2011,

to December 31, 2015, and as a Justice of the Henrietta Town Court, Monroe County,

from January 1, 2008, to December 31, 2010. He was admitted to the practice of law in

New York in 1978.

As to Charge I of the Formal Written Complaint:

2. As set forth below, on or about October 8, 2015, at a time when he

was a candidate for election to the Supreme Court, respondent gave three separate media

interviews during which he made prohibited public comments about People v Charles J

Tan, a pending murder case over which he was presiding in Monroe County Court.

3. In or about March 2015, respondent began presiding over People v

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Charles J Tan in Monroe County Court, a case in which the defendant was charged with

one count of murder in the second degree (Penal Law 125 .25 [ 1]) for allegedly shooting

his father at their family home in Pittsford, New York.

4. In September 2015 respondent was nominated to be a candidate for

election to the New York State Supreme Court.

5. On or about October 8, 2015, after approximately eight days of jury

deliberation in People v Tan, the following occurred:

A. Monroe County Assistant District Attorney William T. Gargan and Mr.

Tan's lead counsel, James L. Nobles, consented to a mistrial in the
matter.

B. Prior to ruling on the mistrial, respondent clarified with counsel and Mr.
Tan that double jeopardy would not attach and that Mr. Tan would be
subject to retrial upon the indictment.

C. Mr. Gargan stated that it was the People's intention to retry Mr. Tan.

D. Respondent granted the mistrial.

E. Respondent ordered the parties to appear before him on November 5,

2015.

6. On or about October 8, 2015, after the mistrial was declared,

respondent was contacted by personnel from three media outlets: WHEC-TV, Channel

10, the NBC-affiliated television station in Rochester; WHAM-TV, Channel 13, the

ABC-affiliated television station in Rochester; and the Democrat & Chronicle, a daily

newspaper in Rochester. Respondent agreed to engage in one-on-one interviews about

People v Tan in his chambers with reporters from each of the three media outlets.

7. On or about October 8, 2015, at approximately 4:00 PM, respondent

met in his chambers with a reporter from WHEC-TV, Channel 10. The resulting

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interview was recorded and portions of it were broadcast on October 8, 2015, and

subsequently available on the television station's website at http://www.whec.com.

8. During the WHEC interview, respondent made public comments

about the Tan case, including:

RESPONDENT: And, I told this jury, historically, this may be the

longest serving jury that deliberated over that period of
time here in Monroe County.

* * * *
REPORTER: Why not sequester [the jury} earlier ... or make them
stay late the first week?

RESPONDENT: It just didn't seem that along those first three, four,
five, seven days, that they were in a position to
perhaps reach a verdict ... if they did stay into the
early evening hours. And I think by virtue of not
having reached a verdict, even into the eighth day, that
bore that out.

REPORTER: Anything in hindsight that you can reflect upon that

you may have done differently?

RESPONDENT: You know each case turns on its own facts and the law
that's applicable to that case. The one thing that I
think that, that's important is that I had a chance to talk
to the jury at the conclusion of the case. And I tried to
stress that they shouldn't feel bad about not having
reached a verdict because what was expected of them
was to follow all the rules of the court, listen to the
evidence, apply the law, and work hard to try to come
to a verdict. Nothing more could be asked of this jury.

9. On or about October 8, 2015, at approximately 4:30 PM, respondent

met in his chambers with a reporter from WHAM-TV, Channel 13. The resulting

interview was recorded and portions of it were broadcast on October 8, 2015, and

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subsequently available on the television station's website at http://13wham.com/.

10. During the WHAM interview, respondent made public comments

about the Tan case, including:

RESPONDENT: They probably got close to a verdict but, in the end, it

just wasn't to be.

REPORTER: Judge Piampiano says both sides agreed to throw in

the towel, and for that matter, dismiss the jury.

RESPONDENT: But after eight days, how far do you go? Do you go
another two days, a week, a month?

REPORTER: Prosecutors already say they plan to retry Charlie

Tan, but Piampiano is in "wait-and-see" mode.

RESPONDENT: I've asked the prosecutor to think through it, advise me

on the 5th, and if there's to be a retrial, it would likely
be in February or March of next year, not before.

* * * *
REPORTER: The judge says the jury worked longer than any jury
he's seen, but added the evidence presented left them
with more questions than answers.

RESPONDENT: Jurors don't get the evidence they want, they get the
evidence they get. And then they have to sort through
that and figure it out. (Unintelligible) ...

REPORTER: This jury didn't quite figure it out, but a new jury
might get that chance. And the judge is optimistic that
finding one without too much bias will be easy.

RESPONDENT: Sometimes journalists, and judges, and lawyers think

that the whole world revolves around this courthouse.
I've met many people in the jury selection process,
who are not "news junkies," if you will, and who have
only peripherally heard about this matter, or other
matters.

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 REPORTER: As for Charlie Tan, Piampiano did not rule out the
possible impact of his supporters or his side of the
story.

RESPONDENT: I'm not sure, Cody, that I can recall, in recent times,
somebody being that sympathetic a figure.

11. On or about October 8, 2015, respondent met in his chambers with a

reporter from the Democrat & Chronicle. The resulting interview was recorded and

portions of it were posted on October 8, 2015, on the newspaper's website at

http://www.democratandchronicle.com/. The audio portion of the interview was posted

at the website https://soundcloud.com/democrat-and-chronicle/judge-james-piampiano-

interview-oct-8-2015.

12. During the Democrat & Chronicle interview, respondent made

public comments about the Tan case, including:

REPORTER: Did any of [the jury] share any concerns with you
regarding the trial?

RESPONDENT: You know, I have a practice, and I think most judges

do, not to discuss the merits of the case or particular
issues of the trial, and in particular, in this type of case
where it is still possibly ongoing.

* * * *
REPORTER: Hearing that, do you, do you have any second thoughts
about letting [the jury] go?

RESPONDENT: The only way a trial can conclude, if not by verdict, is

for the judge to evaluate the circumstances in the
judge's discretion, and it's called "manifest necessity,"
where the judge looks at the number of issues in the
case, the time the jury has spent deliberating, perhaps
the nature of the notes that have come out, any Allen
charges that were read, and then the judge making a

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 determination that perhaps enough is enough, and this
is a group that's not likely to reach a verdict
unanimously. That did not occur in this case. The
second alternative or way that the matter can conclude
by mistrial, by law, is that the court, the defense, and
the prosecution all consent that a mistrial should be
granted. That was a matter that was discussed
extensively with the lawyers, and I was advised,
extensively with Mr. Tan as well. And there was
complete agreement between the lawyers that we had
reached a point that it appeared that we were now at a
point of diminishing returns, and I think that
evaluation was based on the notes that had come out,
the time--

* * * *
REPORTER: One other question I have for you is about
"accomplice liability, " that charge.

RESPONDENT: Yes.

REPORTER: The prosecution has said -- I don't think I'm breaking

any confidences saying this, he said this publicly --
that it was, you know, the, the one decision that the
court made that he disagreed with. The accomplice
liability was in his, the, the prosecution's bill of
particulars, and it, but it wasn't allowed. I know why
you made that decision; I was there that day. You said
that the prosecution didn't provide enough evidence to
suggest that there was a connection between the
mother and son. Could you elaborate on your decision
to, to do that, to make that decision, and, and any
second thoughts on that front. Some jurors have
indicated that had that been an option, there would
have been a verdict.

RESPONDENT: Certainly. I, I'm not at liberty to discuss the

prosecutor's remarks or this case in particular, but I
can share with you that with respect to accomplice
liability, for the court to charge that, in any case where
it's requested, there has to be a reasonable view of the
evidence that two or more people are acting in concert

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 to accomplish the same goal, that they're acting with
the same state of mind, and that there's some conduct,
behavior or otherwise, from the evidence, that suggests
that they're acting together and in concert. So, in any
trial where a judge is asked to charge that, what the
judge is going to be doing, as I did in this trial, is
reflect on the evidence that was presented. Typically,
I'll review my notes, take one last look at the law, and
then listen to the arguments of both sides, and then
reflect on whether or not there can be such a charge
based on the evidence in that particular case.

* * * *

RESPONDENT: So, that, that would give you an overview of some

background about that issue.

REPORTER: And in this case you felt that there just wasn't, the
evidence wasn 't there?

RESPONDENT: Based on my ruling, I think it's fair to say, and I think

I can say, that after listening to both sides, I felt that, as
a matter of law, I was not permitted or entitled to
charge the jury to consider that relative to their
deliberations.

* * * *

RESPONDENT: So, the protocol here is that likely that trial would stay
with me, and my intention on November 5th, when the
parties return, is to likely reschedule that trial for some
time in February or March --

* * * *

REPORTER: So, there's a possibility, anyway, that as ofNovember

Jlh, there could be a dismissal of the charges? I, I, I,
I --

RESPONDENT: -- By way of the defense application, that is the relief

they are looking for. So, the answer would be yes.

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 As to Charge II of the Formal Written Complaint:

13. On or about November 5, 2015, while presiding over a post-trial

proceeding in People v Charles J Tan, during which respondent granted the defense

motion for a trial order of dismissal, respondent, as set forth below, failed to be patient,

dignified and courteous when he denied Monroe County Assistant District Attorney

William T. Gargan's attempt to be heard and threatened to have Mr. Gargan arrested if he

spoke.

14. On or about October 8, 2015, after the parties in People v Charles J

Tan had consented to a mistrial following approximately eight days ofjury deliberation

on a single count of murder in the second degree (Penal Law 125 .25 [ 1]), respondent

stated that he would adjourn the case for the prosecutor to consider whether the case

would be retried. When defense counsel James L. Nobles moved for a trial order of

dismissal, Monroe County Assistant District Attorney William T. Gargan opposed the

motion and requested that respondent deny it. Respondent stated that he would reserve

decision on the motion and would consider all prior arguments, and he scheduled the next

appearance in the matter for November 5, 2015. Respondent directed that counsel

"[p ]lease come prepared with your schedule[ s],"and stated that "the Court will also

address the trial order of dismissal at that time."

15. On or about November 5, 2015, Mr. Gargan confirmed that the

People intended to retry Mr. Tan for murder. Respondent thereafter asked both Mr.

Nobles and Mr. Gargan whether they wished to "supplement ... or offer any further ...

information" as to their positions concerning the defense motion for a trial order of

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dismissal. Both attorneys declined respondent's offer.

16. Respondent then spoke uninterrupted for several minutes, explaining

the function of a trial order of dismissal, the legal standard of review, and when a court

may grant or deny a trial order of dismissal motion. Respondent stated that there were

deficiencies in the People's proof, and he said: "The Court, therefore, is bound to

conclude that the proof offered upon the trial of the matter failed to establish a prima

facie case."

17. When respondent commented on the jury's inability to reach a

verdict when "evaluating whether the evidence demonstrated beyond a reasonable doubt

that the crime had been proven," the following exchange occurred:

MR. GARGAN: Judge, may I briefly speak?

RESPONDENT: No, you may not. If you speak I'm going

to put you in handcuffs and put you in jail.

18. Respondent continued to read his decision but did not order Mr.

Gargan held in handcuffs, incarcerate him or hold him in contempt.

Additional Factors

19. Respondent has been cooperative with the Commission throughout

its inquiry.

20. Respondent has familiarized himself with numerous Commission

determinations in which judges were reprimanded for making prohibited public

comments about pending or impending cases, such as Matter of Douglas E. McKean, in

which a Supreme Court Justice was censured for inter alia commenting on pending cases

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in television interviews, and Matter of Patrick J McGrath, in which a County Court

Judge was admonished for commenting on a pending case in a television interview.

Respondent now more fully appreciates his obligation to refrain from commenting

publicly about any pending or impending proceeding, and he pledges to abide faithfully

to this obligation in the future.

21. Respondent has familiarized himself with numerous Commission

determinations in which judges were reprimanded for displays of discourtesy in the

courtroom. He now more fully appreciates his obligation to be patient and courteous to

all with whom he deals in an official capacity, and he pledges to abide faithfully to this

obligation in the future.

22. In his nine years on the bench, respondent has not been previously

disciplined for judicial misconduct. He regrets his failure to abide by the Rules in these

matters and pledges to conduct himself in accordance with the Rules for the remainder of

his tenure as a judge.

Upon the foregoing findings of fact, the Commission concludes as a matter

of law that respondent violated Sections 100.1, 100.2(A), 100.3(B)(3) and 100.3(B)(8) of

the Rules Governing Judicial Conduct ("Rules") and should be disciplined for cause,

pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and

Section 44, subdivision 1, of the Judiciary Law. Charges I and II of the Formal Written

Complaint are sustained, and respondent's misconduct is established.

It is improper for a judge to make "any public comment about a pending or

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impending proceeding" (Rule 100.3[B][8]). As the Commission has stated, this ethical

prohibition "is clear and unequivocal," and, consequently, "[i]t is wrong for a judge 'to

make any public comment, no matter how minor, to a newspaper reporter or to anyone

else, about a case pending before him"' (Matter of McKean, 1999 NYSCJC Annual

Report 117, 120 [citing Matter of Framer, 1985 NYSCJC Annual Report 135, 137]).

Respondent's comments during a series of press interviews about a murder case in which

he had granted a mistrial were inconsistent with this standard, which "makes no

exception ... for explanations of a judge's 'decision-making' process" (Matter of

O'Brien, 2000 NYSCJC Annual Report 135, 137; see also Matter of McGrath, 2005

NYSCJC Annual Report 181).

Although respondent's comments indicate that he was aware of the ethical

prohibition (at one point he stated, "I'm not at liberty to discuss the prosecutor's remarks

or this case in particular") and he was also aware that there would be further proceedings

in the case, including a potential re-trial, he granted three one-on-one media interviews in

which he proceeded to discuss the case at length. While he often responded to the

reporters' questions about the Tan case with general statements about procedures and the

legal system, he should have recognized that any statements he made in that context

would be understood as pertaining to Tan and therefore were problematic. His

statements, however, went well beyond general explanations of the law. He discussed

legal issues in the case (including his denial of a request for an accomplice charge), and

he provided a description of his interactions with the jury and his sense of the jury's

deliberations. Especially troubling is his description of the defendant as a "sympathetic"

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figure. Even if viewed in the context of the reporter's question about the "possible

impact" of the defendant's "supporters," his comment could convey an appearance that

respondent viewed the defendant sympathetically, raising doubts about his impartiality

and thus undermining public confidence in the impartial administration of justice. This is

especially so since the case was still before him and since, a month later, he granted the

defense motion for a trial order of dismissal. The fact that respondent made these

statements in media interviews at a time when he was a candidate for election to Supreme

Court raises a question as to whether his public comments were motivated by political

concerns. See Matter of Dillon, 2003 NYSCJC Annual Report 101. It is a judge's duty

to "act at all times in a manner that promotes public confidence in the integrity and

impartiality of the judiciary" (Rule 100.2[A]).

It was also improper for respondent, in a post-trial proceeding a month

later, to threaten to have the prosecutor placed in handcuffs and put in jail when the

attorney asked to speak as respondent was announcing his decision on the defense motion

to dismiss. (The record indicates that respondent had previously afforded the prosecutor

an opportunity to be heard on the motion.) By asking to speak, the prosecutor was simply

doing his job, and even if respondent believed that the attorney was interrupting or

speaking out of turn, his response was a substantial overreaction to the attorney's

conduct. While a judge has discretion to punish "contumacious" conduct in order to

preserve order and decorum, "the awesome power of summary contempt" should be

imposed only in "exceptional and necessitous circumstances" (see 22 NYCRR

604.2[a][l], [c]; Matter of Van Slyke, 2007 NYSCJC Annual Report 151). The fact that

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respondent did not act on his threat does not excuse his conduct since baseless threats

against an attorney are inconsistent with a judge's obligation to be "patient, dignified and

courteous" to lawyers and others with whom the judge deals in an official capacity

(Rules, 100.3[B][3]; Matter of Gary, 2017 NYSCJC Annual Report 134).

In accepting the jointly recommended sanction, we note that respondent has

admitted that his conduct was inconsistent with the ethical standards and has pledged to

conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

By reason of the foregoing, the Commission determines that the appropriate

disposition is censure.

Mr. Harding, Judge Acosta, Mr. Cohen, Ms. Comgold, Mr. Emery, Judge

Klonick, Judge Leach, Mr. Stoloff, Judge Weinstein and Ms. Yeboah concur.

Mr. Belluck was not present.

CERTIFICATION

It is certified that the foregoing is the determination of the State

Commission on Judicial Conduct.

Dated: March 13, 2017

Jean M. Savanyu, Esq.

Clerk of the Commission
New York State
Commission on Judicial Conduct

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