Queens Civil Court Judge Terrence O’Connor is required by law to retire by December, but a decision from the Court of Appeals could bring an earlier end to his judicial career.
The New York Court of Appeals heard arguments this week on his possible removal from the bench, six months after the state Commission on Judicial Conduct said he should be stripped of his judgeship for being “belligerent, rude and condescending” to attorneys in the courtroom and failing to cooperate with its investigation into his conduct.
Arguments before the Court of Appeals on O’Connor’s removal focused on the latter.
Jonathan Edelstein, managing partner at Edelstein & Grossman in Manhattan, was counsel for O’Connor during the arguments. He said the commission’s elevation from a censure to O’Connor’s removal was too severe, but he also suggested that O’Connor could have handled the situation better. O’Connor appeared pro se before the commission.
“I’m certainly not saying that he handled this well,” Edelstein said. “I think that this case is proof that even a judge is not immune to ‘pro se litigantitis.’”
He noted that O’Connor had participated in the commission’s investigation by sending a detailed response to its initial letter about the inquiry. According to Edward Lindner, an attorney for the commission, the law requires a judge under investigation to be present at a hearing on the matter and answer questions from the panel.
“I can’t stress enough how important a judge’s testimony is in a commission’s investigation,” Lindner said. “The statute doesn’t actually require a judge to answer our letters … but the statute specifically requires that a judge appear and give testimony under oath.”
Judge Leslie Stein asked Lindner whether O’Connor’s failure to participate in the investigation beyond his initial response was enough to remove him from the bench rather than face censure.
“I think that’s what you should hope. I think it’s a red line,” Lindner said. Lindner argued that even if O’Connor attended the hearing, but refused to answer any questions, the commission would have still recommended his removal for not fully participating in its investigation.
“I don’t think the statute gives him the right to do that,” Lindner said. “I don’t think you should hold that.”
Edelstein said O’Connor should be allowed to continue serving on the bench until his retirement in December because he still has the confidence of the public who elected him. Judge Jenny Rivera disputed that claim based on O’Connor’s actions throughout the investigation.
“How can there be public confidence in a member of the bench who undermines and intentionally fails to cooperate with a body tasked with determining whether or not the judge has violated the law, ethical standards, is tasked with deciding what would be an appropriate sanction under the circumstances?” Rivera said.
Edelstein said O’Connor’s choice to not participate in the commission’s investigation would not necessarily be viewed negatively by the public.
“I’m not at all sure that the public would lose confidence in a judge that remains silent,” Edelstein said. “I think that a public who is steeped in the culture of Miranda is not going to view remaining silent in the face of accusation as some sort of dereliction or moral failure.”
There was also a suggestion by Judge Eugene Fahey that O’Connor chose not to cooperate with the commission to delay its determination until after his retirement. O’Connor’s 70th birthday is in December, which is the mandatory retirement age for judges in New York. His term also runs out at the end of that month.
“Here we have a short time left in the judge’s term, and how are we not to view the delay as simply an attempt to run out the clock before the judge leaves the bench?” Fahey said. “In other words, it was a calculated strategy.”
Edelstein said there was too much time between when O’Connor chose not to cooperate with the investigation and his retirement to support that theory.
“When this alleged noncooperation occurred, this was in the early part of 2017,” Edelstein said. “At that point the judge’s term had a year and a half to run.”
O’Connor was originally under investigation by the commission for his behavior in the courtroom, which included chastising attorneys on different occasions for using the word “OK” in response to their witness’ answers.
One of those attorneys was Pamela Smith of Stern & Stern, who testified before the commission about a nonjury trial in O’Connor’s courtroom in 2015. When she said “OK” after her witness’ answers, O’Connor initially asked her to stop. She agreed to the judge’s request, but said that assent was reflexive.
When she continued to use the word “OK,” O’Connor struck her witness’ testimony from the record. She did the same after a response from a second witness and O’Connor struck that testimony as well.
When Smith said she didn’t have any other witnesses to call, O’Connor granted a motion to dismiss against Smith. Smith told the commission the experience was “traumatizing.”
The commission said in its decision that the kind of behavior O’Connor exhibited toward Smith was seen regularly while he was on the bench.
“Quick to chastise lawyers for perceived discourtesy, sarcasm and unprofessional behavior, respondent himself engaged in such conduct, subjecting lawyers to harsh personal criticisms and insults in front of their clients, peers and others in the courtroom,” the decision said.
It wasn’t his first run-in with the commission. He was also censured in 2013 for continuing to serve as a fiduciary without approval after becoming a full-time judge and for failing to disclose that his residence was being targeted for foreclosure.
O’Connor was suspended with pay by the Court of Appeals in May pending its decision on his removal. He earns $193,500 in his position.