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================================================================= This opinion is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------SCJC No. 82 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 StateCommission on Judicial 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 petitionerbe removed from office (see NY Const,

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- 2 art VI, § 22; Judiciary Law § 44).

No. 82 In seeking review, petitioner

concedes the facts as alleged, and challenges 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 1996and, 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 court1 handles cases of

defendants who, after arraignment on domestic violence charges, are screened and determined eligible for a court-supervised, 26week program of counseling and education. Defendants in the

program are required toavoid 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 inpetitioner's court was

Domestic violence courts are dedicated to enhancing victim safety and holding offenders accountable, facilitating victim access to necessary services, and ensuring intensive judicial monitoring, among other things. According to petitioner, the practice in his court was to sanction a defendant who violated such conditions as not appearing in court, testing positive fordrugs or not attending designated counseling. - 2 2

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- 3 to require defendants to remain in the courtroom until the completion of all scheduled proceedings that day.

No. 82

On the morning of March 11, 2005, petitioner began his day by presiding over the first set of about 70 cases scheduled for their weekly hearings. The record shows that the courtroom

was full and that, in additionto defendants awaiting their individual appearances, others were present, including defense attorneys and prosecutors, court personnel and security officers, as well as representatives from counseling programs. Additionally, the courtroom was open for those entering and leaving, including members of the public, relatives and other interested persons. During the first hour of scheduledappearances, petitioner handled the cases of over 30 defendants in routine fashion. Of these, petitioner released 11 on their own

recognizance and directed that they remain in court until all proceedings were concluded. At approximately 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...