the judges of the Court of Appeals
Standing, left to right: Judges Jenny Rivera, Robert Smith, Susan Phillips Read, Sheila Abdus-Salaam, and Eugene Pigott Jr. Seated, Judge Victoria Graffeo and Chief Judge Jonathan Lippman (Skip Dickstein)

ALBANY – The fate of an Albany surrogate, the constitutionality of a cyber-bullying law and the power of the parole board to rescind a release decision captivated the Court of Appeals Thursday in a trio of unrelated oral arguments.

In rapid succession, the high court heard arguments that could determine whether Albany County Surrogate Cathryn Doyle keeps her job, whether a local cyber-bullying law criminalizes constitutionally protected speech and whether after-the-fact complaints of victims constitute new evidence to rescind a grant of parole. The cases are Matter of Doyle, 106, People v. Marquan, 139, and Matter of Costello, 140.

Doyle is fighting for her judicial life in a case where the Commission on Judicial Conduct split 8-2 on whether presiding over matters involving her personal attorney, an attorney who served as her campaign manager and a lawyer who represented her in a prior disciplinary action add up to career-ending misconduct.

Some of the charges stem from Doyle’s relationship with Thomas Spargo, a disbarred former Supreme Court justice and close personal friend. Spargo was removed from the bench after the commission accused him of soliciting money from attorneys appearing in his court to cover his legal expenses in connection to another misconduct investigation. He was later convicted in federal court of attempted bribery and sentenced in 2009 to a 27-month prison term (NYLJ, Dec. 23, 2009).

Doyle, a witness in the Spargo disciplinary matter, was censured in 2007 for providing testimony the commission described as “evasive and deceptive” as well as “misleading and obstructionist.”

Despite her history with Spargo, and after the censure, Doyle handled four estate matters in which he was the attorney, without disclosing her relationship with him or the fact that he was representing her in two lawsuits.

Additionally, Doyle presided over four matters involving Matthew Kelly, an attorney with Roemer Wallens & Mineaux in Albany who managed her 2010 reelection campaign and served as de facto manager of her unsuccessful 2007 bid for a Supreme Court nomination, and one involving William Cade of Cade & Saunders in Albany, who represented her in the 2007 matter before the commission.

Doyle has argued that her actions in the Spargo-Kelly-Cade cases were ministerial matters that were not contraverted, did not involve judicial discretion and required only the formality of signing-off on a statutorily mandated result.

But a majority of the commission said Doyle’s failure to recuse herself from cases involving friends and confidants was “exacerbated” by her prior misconduct. The commission majority said she displayed “an unacceptable degree of insensitivity to the demands of judicial ethics” and should be removed from the bench, a sanction the minority said was excessive.

At oral argument Thursday, Doyle’s attorney, William Dreyer of Dreyer Boyajian in Albany, faced off against the commission’s lawyer, Edward Lindner, in a half-hour argument that centered on whether the judge committed misconduct at all and, if so, whether it warranted the severe sanction of removal.

The judges seemed skeptical about whether Doyle’s alleged misconduct is enough to destroy her career, especially since the charged transgressions involved nine of 14,000 cases.

But they also suggested that the surrogate, with her history and background, “should have been on her extra good behavior,” as described by Judge Robert Smith (See Profile) and echoed by other judges.

“Counselor, why would it have been a surprise to the judge that even in an uncontested proceeding that might be viewed in certain respects as ministerial, why should it be a surprise to a sitting surrogate that there’s a problem?” Chief Judge Jonathan Lippman (See Profile) asked Dreyer.

Dreyer told the court that Doyle considered the matter, was cognizant that she had no discretion and that if she recused herself it would achieve nothing except for delaying the matter to the detriment of the estate while it was shifted to a judge in another county. Doyle is the only Surrogate Court judge in Albany County.

Smith said he was “more bothered” by some of the matters involving Kelly that were not clearly ministerial and took place when he was effectively Doyle’s campaign manager.

“She is sitting there at an examination where the issue is whether his client unduly influenced the testator,” Smith said. “Wouldn’t you think that someone who has as much reason to be sensitive as she did at that point to being Caesar’s wife…that maybe she would have said, ‘I should stay away from this?’”

Lindner said Doyle, throughout her disciplinary history, has evinced a “pattern of evasive and misleading terstimony.” He said an “experienced judge, an experienced lawyer, a former elections lawyer” should have been acutely aware of her ethical responsibilities.

“I think she just wants to have her friends’ cases in her court and what she thinks she can get away with, she does,” Lindner said.

Judge Eugene Pigott Jr. (See Profile) immediate cut Lindner off.

“Wait, wait, wait, wait, wait, wait,” Pigott said. “Are you saying she’s trying to get her friends’ cases?”

Lindner backpedaled slightly, responding that while Doyle may not have actively solicited her friends’ cases, when she did get them she was “happy to accommodate.” But Pigott pressed him on whether any harm was done.

“I don’t see where anyone was hurt,” Pigott said. “The clients were properly served as a result, and it seems every time there was a breeze that something might be controversial, the judge recused herself.”

Smith asked Lindner whether there is any evidence that Doyle did any legal favors for Kelly. Lindner’s response: “No.”

Cyper-bullying Law

Marquan M., focuses on a cyber-bullying law enacted in Albany County that makes it a misdemeanor to relay “private, personal, false, or sexual information” with the intent to “harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

The defendant, a 15-year-old high school student, was the first person charged under the new law when he created an anonymous Facebook page on which he posted graphic pictures of and derogatory comments about classmates.

Marquan challenged the constitutionality of the law, but when Cohoes City Court Judge Richard Maguire (See Profile) rejected that challenge the defendant pleaded guilty to a count of cyber-bullying and was sentenced as a youthful offender to three years of probation.

Albany County Judge Stephen Herrick (See Profile) affirmed the conviction, but said the law itself was overbroad since it prohibits bullying of “any person” while the legislative history suggests the aim was to protect children. Judge Victoria Graffeo (See Profile) granted leave.

Corey Stoughton, an attorney for the New York Civil Liberties Foundation, argued for Marquan while Albany County Attorney Thomas Marcelle argued in defense of the law.

The judges seemed to grapple with the questions of whether there is a constitutional right to post vitriol, and whether their job is to prune and edit the statute to make it legally tenable.

Pigott asked how anyone was, or could be, negatively impacted by the law.

“I’m looking for a victim,” Pigott said. “I am looking for the person who is in fear [of being prosecuted under the statute]. I am looking for the person who says, ‘I’m never going into Albany because of this statute.’”

Smith pondered whether the speech at issue here is constitutionally protected at all.

“Are you saying your client had a constitutional right to post this stuff?” Smith asked Stoughton.

“Yes,” Stoughton answered.

Lippman suggested the statute needs tweaking to “make it legitimate” and questioned whether that is the role of the judiciary.

“It is a weird statute as written,” Lippman said. “What were they thinking?”

Marcelle responded: “Judge, there are 39 members of the Albany County Legislature and I often ask that question.”

The county attorney did not dispute that the statute is less than perfect, but said it could be salvaged with the type of minor alteration the court frequently makes when confronted with a flawed law.

Rescinding of Parole

Costello is a case of intense interest to parole reform advocates, including several former parole board members, who are urging the court to define and restrict what constitutes “new and substantial” information that justifies rescinding parole before the inmate steps out of the prison gate.

The case stems from a crime in 1978 when Pablo Costello and Luis Torres held up a Brooklyn auto parts store. Costello was the lookout man and ran away when New York City Police officer David Guttenberg happened on the robbery-in-progress. After Costello left, Torres shot and killed the officer.

Costello was convicted of felony murder in 1980 and sentenced to a 25-year-to-life term. He was denied parole three times before the board voted in 2009 for his release.

The release decision prompted a barrage of criticism from the New York Daily News and the New York City Patrolmen’s Benevolent Association and resulted in the deceased officer’s relatives submitting statements opposing parole.

Subsequently, the parole board rescinded Costello’s parole based on “new” evidence: the opposition of Guttenberg’s family. The family had not come forward the three prior times Costello was up for parole and did not express an opinion until after he was granted parole.

The Appellate Division, Third Department, upheld the rescission in a 4-1 ruling noting that the parole board had not previously heard from the victims and, therefore, their comments constituted new evidence.

A dissenter expressed concern that the court avoid condoning “what could become a trend…in which certain victim impact statements are held back until after a decision to grant parole is made, forcing the board to confront unabashed media frenzy, public pressure and familial outrage.”

Seven former parole commissioners, including two former chairmen, signed on to an amicus brief expressing concern that if the Third Department’s ruling is upheld, board members will be subjected to “inappropriate media and political pressure that will damage their ability to make just and reasoned decisions,” the amici said in their brief.

Alfred O’Connor of the New York State Defenders Association, argued for Costello. Senior Assistant Solicitor General Nancy Spiegel appeared for the parole board.

The court seemed to search for an objective standard the parole board adheres to in making rescission decisions.

For instance, when Spiegel told the court that the board uses a “substantial evidence” standard to determine if the new information warrants rescission, Judge Jenny Rivera (See Profile) asked, “Substantial evidence of what?”

Spiegel said the general standard is whether the board, if it had the new evidence at the initial hearing, would have denied parole. She said the board held 50 rescission hearings last year, and rescinded parole on one-third of them.

O’Connor said the rescission decision in this case was arbitrary and the victim statements provided nothing of factual significance. He said they simply expressed “love and loss and the profound grief one would expect.”

The defense counsel did not dispute that the board properly reopened the hearing to consider the victim impact statements. But he said rescission is justified only when the statements provide new information that reflects on the inmate’s readiness for release.