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

ROBERT M. RESTAINO, NOTICE OF FORMAL

WRITTEN COMPLAINT
A Judge of the Niagara Falls City Court,
Niagara County.

NOTICE is hereby give11 to responde11t, Robert M. Restaino, a Judge of the

Niagara Falls City Court, Niagara Co"unty, pursuant to Section 44, subdivision 4, of the

Judiciary Law, that the State Commission 011 Judicial Conduct has determined that cause

exists to serve upon respondent the annexed Formal Written Complaint; and that, in ac­

cordance with said statute, respondent is requested within twenty (20) days of the service

of the annexed Formal Written Complaint upon him to serve the Commission at its Rocl1­

ester office, 400 Andrews Street, Rochester, New York 14604, with his verified Answer

to the specific paragraphs of the Complaint.

Dated: June 20, 2006

New York, New York
ROBERT H. TEMBECKJIAN
Administrator and Cou11sel
State Commission on Judicial Conduct
61 Broadway
New York, New York 10006
(212) 809-0566

To: Joel L. Daniels, Esq.

Attorney for Respondent
1366 Statler Towers
Buffalo, New York 14202
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

ROBERT M. RESTAINO, FORMAL

WRITTEN COMPLAINT
A Judge of the Niagara Falls City Court,
Niagara County.

1. Article 6, Section 22, of the Constitution of the State of New York

establishes a Commission on Judicial Conduct ("Commission"), and Section 44,

subdivision 4, of the Judiciary Law empowers the Commission to direct that a Formal

Written Complaint be drawn al1d served upon a judge.

2. The Commission has directed that a Formal Written Complaint be

drawn and served upon Robert M. Restaino ("respondent"), a Judge of the Niagara Falls

City Court, Niagara COUl1ty.

3. The factual allegations set forth in Charge I states acts ofjudicial

misconduct by respondent in violation of the Rules of the Chief Administrator of the

Courts Governing Judicial Conduct ("Rules").

4. Respondent has been a Judge of the Niagara Falls City Court since

January 1, 1996 .
 CHARGE I

5. On or about March 11,2005, while presiding over proceedings in

Domestic Violence Part, respondent threatened to comnlit to jail and did revoke the

recognizance release status of 46 defendants when he heard what he perceived to be a

ringing cellular telephone that he assumed, without knowledge or proof, belonged to one

of the 46 defendants, who were waiting in the audience of his courtroom.

Specifications to Charge I

6. On or about March 11,2005, there were approximately 75 matters

on respondent's calendar in the Domestic Violence Part of Niagara City Court.

7. At about 10:00 AM on or about March 11,2005, after presiding over

approximately 25 criminal cases, respondent heard all electronic device that he perceived

to be a c'ellular telephone ringing in the audience and stated in an angry manner,

"Whoever owns the instrument that is ringing, bring it to me now or everybody could

take a week in jail."

8. When no one acknowledged owning the device, respondent stated in

an angry manner, "Everyone is going to jail; every single person is gOillg to jail in this

courtroom unless I get that instrument 110W."

9. When again no one acknowledged owning the device, respondent

took a recess that lasted about ten minutes.

10. Upon returning to the bench, respondent called 46 defendants before

him individually. The names of the defendants and other identifying information are set

forth on the annexed Schedule A. Respondent questioned the defendants as to their

knowledge about the ringing device. When each defendant indicated that he or she did

not know who was responsible, respondent revoked that defendant's recognizance release

status and summarily set bail without making inquiry as to those factors required by

Criminal Procedure Law Section 510.30.

11. As respondent revoked the recognizance release status of the 46

defendants, they were taken into custody and escorted to and placed in holding cells

operated by the Niagara Falls City Police Department.

12. Thirty-three of the defendants were released from custody upon

posting bail.

13. The 13 defendants who were unable to post bail were handcuffed,

shackled and transported to the Niagara County Jail for commitmel1t between 3:30 and

4:00 PM. The 13 were held in a large secured holding area at the jail.

14. At approximately 4:30 PM, respondent issued orders reinstating the

recognizance status of the 13 detained defendants, who were released from custody at

approximately 5:30 PM as a result.

15. By reason of the foregoing, respondel1t should be disciplined for

cause, pursuant to Article 6, Section 22, subdivision(a), of the Constitution and Section

44, subdivision 1, of the Judiciary Law, in that respondent failed to uphold the integrity

and independence of the judiciary by failil1g to maintain high standards of conduct so that

the integrity and independence of the judiciary would be preserved, in violation of

Section 100.1 of the Rules; failed to avoid impropriety and the appearance of impropriety

in that he failed to respect and comply with the law and failed to act in a mal1ner that

promotes public confidence in the integrity and impartiality of the judiciary, in violation

of Section 100.2(A) of the Rules; and failed to perform the duties ofjudicial office

impartially and diligently in that he failed to be faithful to the law, in violation of Section

100.3(B)(1) of the Rules, failed to be patient, dignified and courteous to witnesses witl1

whom he dealt in an official capacity, in violation of Section 100.3(B)(3) of the Rules,

and failed to accord to every person who has a legal interest in a proceeding, or ~hat

person's lawyer, the right to be heard according to law, in violatiol1 of Section

100.3(B)(6) of the Rules.

WHEREFORE, by reason of the foregoing, the Commission should take

whatever furtller action it deems appropriate in accordance with its powers under the

Constitution and tl1e Judiciary Law of the State of New York.

Dated: June 20, 2006

New York, New York

ROBERT H. TEMBEC JIAN

Administrator and Counsel
State Commission on Judicial Conduct
61 Broadway
New York, New York 10006
212-809-0566

 Honorable Robert M. Restaino

Niagara Falls City Court

Niagara County

Schedule A

Bail Set on Bail Posted or

Defendant Charge 3/11/2005 1 D'efendant Committed?

Reginald Jones Criminal Contempt 2nd $1,500.00 Committed

Eddie Knighton Harassment 2nd ; Criminal Mischief 4th ; Assault 3fd $1,00,0.00 Posted
Kevin Lafreniere Harassment 2nd ,• Assault 3fd $1,000.00 Committed
Jesus Loya Harassment 2nd ; Stalking 4th ; Disorderly Conduct $1,000.00 Committed
Richard Malaney Criminal Mischief 4th ; Assault 3fd $1,000.00 Posted
Guillermo Martinez Harassment 2nd ,• Assault 3fd $1,000.00 Committed
Joseph McCarthy Harassment 2nd ; Assault 2nd $1,000.00 Posted
Orlando McClain Harassment 2nd ; Assault 3fd $1,000.00 Posted
Damien Miles Aggravated Harassment 2nd $5,000.00 Posted
Derico Mitchell Harassment 2nd ; Menacing 3fd ; Petit Larceny $1,000.00 Posted
Darrell Moyer Harassment 2nd ; Assault 3fd $1,200.00 Posted
Marcellus Overton Criminal Contempt 2nd ; Harassment 2nd ; Criminal Mischief 4th $1,000.00 Posted
Philip Payne Loitering 1st $1,000.00 Posted
Jared Porter Harassment 2nd ,• Assault 3fd $1,000.00 Posted
Edward Primerano Assault 3fd $1,000.00 Posted
Jeffrey Rivers Harassment 2nd ; Stalking 4 th $1,000.00 Committed
Adrian Rivers Assault 3fd $1,000.00 Posted
Bruce Roberts Aggravated Harassment 2nd ; Criminal Contempt 1st $1,000.00 Posted
John Rubino Harassment 2nd ; Aggravated Harassment 2nd $1,000.00 Posted
Maurice Sanders Harassment 2nd ; Assault 3fd $1,000.00 Posted
Shane Sayer Harassment 2nd ; Menacing 2nd $1,000.00 Committed

1 Amount of bail set by Judge Restaino during March 11,2005, court proceeding according to the transcript of the proceeding.

A-I
 "

Michael Scalzo Criminal Contempt 18t ; Criminal Contempt 2nd ; Menacing 2nd ; $1,000.00
Posted
Harassment 2nd ; Criminal Mischief 4th
Adam Schroeder Harassment 2nd ; Assault 3r<1 $2,000.00 Committed
Ronald Sconiers Criminal Mischief 4th ; Assault 3fd ; Endangering Welfare Of Child $250.00 Committed
Martha Seaberry Harassment 2nd ; Assault 3fc1 ; Obstruction of Governmental $250.00
Posted
Admin. 2nd
Morris Shavers Criminal Mischief 4th ; Unlawful Imprisonment 2nd $250.00 Posted
Benjamin Smith Criminal Mischief 4th ; Harassment 2nd ; Assault 3fd $100.00 Posted
Lavon Smith Harassment 2nd ; Petit Larceny; Grand Larceny; Assault 3fc1 ; $200.00
Posted
Resisting Arrest
Henry Smith Harassment 2nd ; Assault 3fd $1,000.00 Posted
Willie Stalling Assault 3fc1 $2,000.00 Posted
Kevin Thomas Assault 3fd ; Criminal Contempt 2nd $1,000.00 Committed
Dedrick Williams Harassment 2nd ; Assault 3fd ;' Endangering Welfare of Child $1,000.00 Committed
Cynthia Williams Harassment 2nd ; Criminal Mischief 4th ; Assault 3fd $1,500.00 Posted
Brian Winkler Harassment 2nd ; Petit Larceny; Endangering Welfare of Child $1,000.00 Posted
Kimberly Lewis Assault 3fd $1,500.00 Posted
Will Clark Harassment 2nd ; Assault 3fd $2,000.00 Posted
Randy Carr Harassment 2nd ; Menacing 3fd ; Assault 3fd $5,000.00 Posted
Colleen Alsaid Harassment 2nd $350.00 Posted
Bryan Calhoun Harassment 2nd ; Menacing 2nd $2,500.00 Committed
Darren Christian Menacing 3fd ; Endangering Welfare of Child; Criminal Mischief $2,000.00
Posted
4th ; Petit Larceny
Robert Hinman Harassment 2nd ; Assault 3fd $250.00 Committed
Terry Hamilton Harassment 2nd ; Assault 3fd $250.00 Committed
Mark Glavin Harassment 2nd ; Menacing 3fd $200.00 Posted
Angelo Fiori Harassment 2nd ; Assault 3fd ; Menacing 2nd ; Criminal Mischief 4th $100.00 Committed
Penny Boyea Harassment 2nd $5,000.00 Posted
Nathaniel Morris Harassment 2nd ; Menacing 3fd $1,500.00 Posted

A-2

STATE OF NEW YORK

COMMISSION ON mDICIAL CONDUCT

------------------------------------------------------)(

In the Matter of the Proceeding

Pursuant to Section 44, subdivision 4,

of the Judiciary Law in Relation to

ROBERT M. RESTAINO, VERIFICATION

A Judge of the Niagara Falls City Court,

Niagara County.
------------------------------------------------------)(
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )

ROBERT H. TEMBECKJIAN, being duly sworn, deposes and says:

1. I am the Administrator of the State Commission on Judicial Con­

duct.

2. I have read the foregoing Formal Written Complaint al1d, upon in­

formation and belief, all matters stated therein are true.

3. The basis for said information and belief is the files and records of

the State Commissiol1 on Judicial Conduct.

. ;'" Robert H. TembJkjian

Sworn to before me this

20 th day of June 2006

Notary Public
STATE OF NEW YORK
COMMISSION ON JUDICIAL CONDUCT

In the Matter of the Proceeding

Pursuant to Section 44, subdivision 4,
oftl1e judiciary Law in Relation to
ANSWER
ROBERTM. RESTAINO,

A Judge of the Niagara Falls City Court,

Niagara County.

Robert M. Restaino, Respondent, for his Answer to the Petition of the New York State
Commission on Judicial Conduct states as follows:

1. Admits the allegations alleged in the following paragraphs of the Petition: "1", "2",
"4", "5", "6", "7", "8", "9", "1 0", "11", "12", "13" and "14" .

2. Respondent denies the allegations in paragraphs "3" and "15".

WHEREFORE, Respondent respectfully requests that a hearing be conducted to detennine

issues of fact including mitigation of any sanction the Commission may choose to impose.

DATED: Buffalo, New York

August 9, 2006
JOEL L. DANIELS
Attorney at Law
OFFICE & P. O. ADDRESS
1366 Statler Towers
Buffalo, NY 14202
(716) 856-5140
TO: New York State
Commission on Judicial Conduct
Attn: John J. Postel, Esq.
Chief Attorney
400 Andrews Street
Rochester, NY 14604

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