This opinion is uncorrected and subject to revision before publication in the New York Reports.
We are called upon to review determinations of the State Commission on Judicial Conduct removing from office Joseph Alessandro, a Justice of the Supreme Court, Westchester County, and his brother Francis Alessandro, a Judge of the New York City Civil Court, Bronx County, for alleged acts of judicial misconduct. Both brothers admit misconduct, but challenge the sanction as too severe. Upon exercise of our de novo review powers, we conclude that removal is the appropriate sanction for Joseph Alessandro, but we reject the sanction of removal imposed for Francis Alessandro and determine that the appropriate sanction is admonition.
In February 2007, the Commission served a complaint upon Joseph Alessandro containing four charges of misconduct. The charges alleged that he attempted to defraud an individual out of a $250,000 loan and/or failed to repay the loan; gave false testimony during the Commission investigation; filed a materially incomplete financial disclosure statement with the Ethics Commission for the Unified Court System (Ethics Commission); and submitted loan applications that omitted various assets and liabilities.
A referee conducted a joint hearing in the proceedings against Joseph and Francis Alessandro. The referee sustained all four charges against Joseph, and the matter proceeded to oral argument before the Commission. In its February 2009 determination, the Commission concluded that Joseph should be removed from office.
Joseph Alessandro, an attorney with more than 30 years of experience in private practice, entered the race for Westchester County Court Judge in 2003. Salvatore LoBreglio, the director of the Westchester Independence Party, suggested that Barbara Battista serve as Joseph's campaign manager and treasurer. Battista, a retired nurse, had some experience working on election campaigns. Previously, Joseph had paid Battista to prepare his (ultimately unsuccessful) application for an interim appointment to County Court.
In August 2003, Battista proposed that Joseph undertake a massive mailing of campaign literature. Joseph had already contributed more than $140,000 of his personal funds to the campaign, and told Battista that he was not prepared to spend additional money. Battista then offered to lend Joseph $250,000. According to Battista, she "made it very clear that there had to be an end date for it to be paid back." Joseph accepted, and the parties orally agreed that Joseph would repay the loan by July 2004. Between late August and mid-September 2003, using money borrowed against her retirement funds in a brokerage account, Battista paid a print company $185,000 toward the cost of Joseph's campaign literature, and paid an additional $57,000 into Joseph's campaign account.*fn1
Joseph and Francis Alessandro co-signed a handwritten note reflecting Joseph's $250,000 indebtedness to Battista. Dated August 31, 2003, the note provided a fixed annual interest rate of 1.5 percent and a term of 30 days, with the principal due and payable on September "31," 2003. To secure the note, the brothers co-signed a handwritten mortgage on their jointly-owned property in Valhalla, New York. Battista did not record the handwritten mortgage at that time.
Soon thereafter, campaign attorney John Ciampoli informed Joseph, Battista and LoBreglio that Battista's payments to the print company and the campaign account would violate statutory campaign contribution limits if not repaid by Election Day. Ciampoli therefore advised Joseph to assume the campaign's debt to Battista personally. As a consequence, Joseph and Battista signed a typewritten promissory note, dated November 3, 2003, which acknowledged the $250,000 indebtedness. The note provided for a 15-year term and a variable interest rate, equal to the interest rate charged by Battista's brokerage account, that was initially set at 2.86 percent. Joseph also signed a typewritten mortgage, dated October 23, 2003, which secured the loan with the brothers' jointly-owned Valhalla property. Francis did not sign either the typewritten note or the typewritten mortgage. Battista recorded the typewritten mortgage on November 5, 2003.*fn2
Joseph was elected to County Court in November 2003. For the next year, he made interest payments to Battista as required by the typewritten promissory note. In the spring and summer of 2004, Battista inquired about repayment of the loan. Joseph repeatedly assured her that he was attempting to secure financing to repay her. In September 2004, Joseph told Battista that he had a "mortgage guy" working to obtain a loan, and showed her a document that appeared to be an unsigned mortgage application or commitment. Meanwhile, in June 2004, Joseph and Francis had paid more than $300,000 in cash to purchase property in Seaside Heights, New Jersey. They obtained the money by taking a loan against a joint brokerage account. There is no documentary evidence or testimony of an impartial witness to support Joseph's claim that he was trying to repay the Battista loan.
In October 2004, Battista enlisted attorney Harvey Kaminsky to help her recover the loan. According to Kaminsky, Battista told him that "she felt she was getting the runaround, and . . . she sort of felt intimidated calling the judge because she was calling him in his chambers saying she needed the money." Kaminsky contacted Joseph, who acknowledged the debt, and said that he had applied for a mortgage on a property he owned in New Jersey and expected to have the money within a few weeks. At Kaminsky's request, Joseph sent Kaminsky copies of unsigned mortgage applications he had completed.
Later that month, Joseph told Kaminsky that, in order to obtain financing, he needed a document indicating that he was current on the interest payments due on the mortgage Battista held on the Valhalla property. Although Kaminsky "didn't quite understand why it was important for a New Jersey piece of property that was being put up for refinancing," he promptly obtained the letter from Battista and faxed it to Joseph.
Soon thereafter, Joseph informed Kaminsky that "his title company was troubled by the two mortgages" on the Valhalla property. As a result, Joseph claimed, he needed a document clarifying that the typewritten mortgage was the only mortgage on the Valhalla property and that the handwritten mortgage was "null and void since it was unrecorded." Kaminsky told Joseph that his request created a difficult situation because he believed that the handwritten mortgage afforded Battista more protection. Joseph replied that "unless we got rid of the first mortgage, he could not get the ...