Accepting the determination of the State Commission on Judicial Conduct, which was based on an agreed statement of facts, the New York Court of Appeals removed a non-lawyer judge from office for (1) brandishing a loaded firearm at a litigant in the courtroom and repeatedly mentioning the litigant’s race in his retellings of the incident and (2) engaging with 8 Facebook posts promoting non-profit fund-raising events.  In the Matter of Putorti (New York Court of Appeals October 9, 2023). 

(1) Since 2003, the judge has been licensed to carry a firearm, and at a 2013 judicial training course, he had been advised that he could legally carry a concealed firearm on the bench.  The judge’s practice was to keep the firearm attached to the underside of the bench while he was presiding over his courtroom in the Whitehall Village Court.  The courtroom had no assigned security personnel, but it was adjacent to the village police department, an entrance to the police station was several feet from the bench, and a police officer was occasionally present in the courtroom.

One day in late 2015, while presiding in court, the judge brandished a loaded firearm at a litigant, a 6-foot, 165-pound Black man, who was waiting for his case to be called.  Although the judge claims that he “subjectively feared for his safety,” he admits that he had “no reasonable basis” to believe that the litigant “was about to use imminent deadly force,” and that he was “not justified” in brandishing the firearm.

The judge repeatedly recounted his story of the incident to others.  In an interview in the fall of 2015, he described his practice of carrying a firearm on the bench and said that he once brandished his firearm at “‘someone’ who came running up to him at the bench and to whom he said, ‘whoa, whoa, whoa, slow down.’”  He gave the interview to his cousin, a Hofstra University journalism student.  The interview was quoted in an article entitled “Carrying in the courtroom,” published online in the Long Island Report.

In early 2016, Judge Putorti showed the article to another judge, telling her about a time he drew his firearm on an “‘agitated’ ‘big Black man’” when the man approached the bench too quickly.  From his “manner and tone,” the other judge had the “impression” that he “was bragging about his actions and . . . expressing pride about being featured in the article.”  The other judge also overheard him tell other judges about the article and the incident at a 2016 county magistrates association meeting.

At another association meeting in 2018, while seeking advice about courtroom security, Judge Putorti told the judges present that he had once pointed his firearm at a “‘large [B]lack man’” who had passed the stop line and came within “a couple” feet of the bench while a police officer was standing at the bench.  The judge recounted that the litigant stated that he “just wanted to talk,” and he added that the officer made a joke about how quickly the judge had been able to draw the gun.

One of the other judges who was present expressed concern to Judge Putorti’s supervising judge.  In a telephone conversation with his supervising judge, Judge Putorti explained that the incident occurred when he called the litigant’s case, and the litigant “ran quickly to the bench, past a line where defendants are supposed to stand.”  The judge added that an officer who was serving as “security” allowed the litigant to approach “within two feet” of the bench.  The judge described the litigant as “a ‘large [B]lack man,’ about 6’9” tall and ‘built like a football player.’”  The judge told his supervising judge that he drew his firearm and “‘pointed it at’” the litigant, adding that, although a bullet was not in the chamber, it takes “‘a split second’” to load.  The judge further told his supervising judge that the litigant said he “‘just wanted to talk’” to the judge, who said that he would talk once the litigant moved back behind the line; the litigant did move back, and the judge then put his gun away.  After this phone conversation, the judge signed a counseling memorandum agreeing never to display a firearm in court unless confronted with deadly physical force.  He also claims that, after the conversation with his supervising judge, he stopped carrying a firearm in the courtroom.

The judge challenged the Commission’s finding of racial bias.  Noting that the Commission was bound to base its determination on the agreed statement of facts, the Court explained that “the agreed-upon facts included an admission by petitioner that he failed to perform his judicial duties ‘without manifesting in words or conduct bias or prejudice based upon race . . . .”  Stressing that the “appearance of such impropriety is no less to be condemned than is the impropriety itself,” the Court also noted that the judge had acknowledged that his conduct “may have created the appearance of racial bias.”  “Despite these conclusive admissions,” the judge argued that “he was not acting with racial bias” but that “his repeated reference to the litigant as a ‘big Black man’ was meant merely to describe him.”  However, the Court concluded that the judge’s repeated references to the litigant as a “big Black man” were “not a mere physical description of the litigant” but “exploited a classic and common racist trope that Black men are inherently threatening or dangerous,” and, therefore, exhibited “bias or, at least, implicit bias.”  The Court added that “New York’s judicial system recognizes the pernicious effect that implicit bias often has on the fair and equal administration of justice . . . .”

(2) From October 2019 through November 2020, which was after he had learned that the Commission was investigating the gun incident, the judge engaged with 8 Facebook posts promoting nonprofit fundraising events.  His page was viewable by the public, and he had over 1,300 “friends,” many of whom knew he was a judge, including the county district attorney, other attorneys, and police officers.

In October 2019, the judge was “tagged” in a post promoting a spaghetti dinner to raise money to cover medical expenses that he had incurred in a motorcycle accident; rather than delete the post from his page, the judge wrote, “I hope to see as many people as I can.”  Over 500 people attended, raising $9,400.

The judge also shared and commented on Facebook posts promoting 7 events to raise funds for the Elks Lodge, in which he held office.

The Court stated that, although “the extreme sanction of removal is warranted only in “‘truly egregious circumstances’ that extend beyond the limits of ‘even extremely poor judgment’” . . . , we measure this ‘truly egregious’ standard ‘with due regard to the fact that Judges must be held to a higher standard of conduct than the public at large’ . . . .”  Noting that “what constitutes ‘truly egregious’ circumstances is a fact-specific inquiry,” the Court stated that it considers “both the gravity of the wrongdoing and the “’effect of petitioner’s conduct upon public confidence in his character and judicial temperament’ . . . .”  Noting that removal is often reserved for a judge who engages in a pattern of misconduct, the Court concluded that this was one of the “rare cases where the misconduct is so inexcusable that no amount of mitigation can be ‘sufficient to restore the public’s trust’ in the judge’s ability to discharge the responsibilities of judicial office ‘in a fair and just manner’ . . . .”  Finding that “the record amply supports the conclusion that petitioner’s misconduct ‘transcends poor judgment’ and warrants removal,” the Court explained:

While presiding over his courtroom, petitioner brandished a loaded firearm at a litigant who presented no threat to anyone.  Rather than show remorse, he described his conduct in a press interview and boasted about it to his colleagues, while repeatedly, and gratuitously, referring to the litigant’s race.  Also troubling is petitioner’s denial in this Court of facts to which he previously stipulated.

The Court acknowledged that the judge’s fundraising on social media “would not by itself warrant removal” but stated that “its timing and the circumstances under which it occurred,” i.e., when he knew he was under investigation, “evince an unwillingness or inability to abide by the Rules of Judicial Conduct,” further demonstrating his unfitness for office.