IN RE: the Application of Town of Cheektowaga

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Supreme Court, Erie County, New York.

IN RE: the Application of Town of Cheektowaga, Petitioner, For a Judgment Pursuant to New York CPLR Article 78 v. James P. Rogowski, Respondent.

2018-85

Decided: September 18, 2018

PHILLIPS LYTLE LLP Kenneth A. Manning, Esq. Craig R. Bucki, Esq. Attorneys for the Petitioner One Canalside 125 Main Street Buffalo, NY 14203 James Ostrowski, Esq. Attorneys for the Respondent 63 Newport Avenue Buffalo, NY 14216

The petitioner, Town of Cheektowaga, commenced this CPLR Article 78 proceeding seeking to enforce New York Public Officer Law ("POL") §30(1)(e), which provides that a public office in New York State becomes automatically vacant upon the officeholder's conviction of "a crime involving a violation of his oath of office". The respondent, James P. Rogowski ("Rogowski"), was elected on November 7, 2017, to the office of Town of Cheektowaga Councilmember. The term of office was scheduled to run for January 1, 2018, through December 31, 2021.

On February 28, 2018, Erie County Court Judge Kevin Carter issued an Order of Protection requiring Rogowski, among other things, to stay away from his wife and refrain from any communication or contact with her. The Order of Protection reflects that Rogowski was present for the Order's entry, was personally served with the Order in Family Court, and was advised by the Court of the issuance and contents of the Order. Within hours after issuance of the mandate of the Court, Rogowski was arrested and charged with criminal contempt in the first degree (class E Felony) and second-degree menacing (class A Misdemeanor). The charges resulted from an incident on the New York State Thruway where it was alleged that Rogowski aggressively pursued his wife in his vehicle by following closely, honking the horn and yelling at his wife through the open window, all while he rode beside his wife's car. This would have all been done in violation of the complete "stay away" Order of Protection. An arrest was effectuated in the Town of West Seneca and the case was ultimately transferred to the Integrated Domestic Violence Court.

On September 5, 2018, before State Supreme Court Justice Deborah A. Haendiges, Rogowski pled guilty to attempted criminal contempt in the second-degree in violation of Penal Law §215.50(3), as modified by Penal Law §110.00 (class B Misdemeanor).

On September 11, 2018, the Cheektowaga Town Board adopted a resolution concluding that Rogowski's plea to the criminal charge caused him to vacate his public office as a councilmember pursuant to the operation of POL §30(1)(e). Rogowski refused an opportunity to resign and the petitioner now seeks relief of this Court pursuant to CPLR Article 78 to: (1) determine that Rogowski lacks jurisdiction to continue to serve in the public office of councilmember for the Town of Cheektowaga as the office became vacant by operation of POL §30(1)(e) upon his plea of guilty to the crime of attempted criminal contempt in the second degree and; (2) mandate Rogowski to vacate the public office of councilmember for the Town of Cheektowaga.

In reaching a decision this Court has reviewed and considered the following:

Petitioner's Order to Show Cause dated September 13, 2018;

Petitioner's Verified Petition executed on September 13, 2018, by the Supervisor of the Town of Cheektowaga;

Petitioner's Memorandum of Law in support of the Petition;

Respondent's Verified Answer and Counterclaim;

Respondent's Memorandum of Law; and

Oral argument heard on September 18, 2018, from Phillips Lytle LLP (Craig R. Bucki, Esq., of counsel) in support of the petition and James Ostrowski, Esq. appearing in opposition to the petition and in support of the Respondent's counterclaim.

DISCUSSION

Public Officers Law §30(1)(e) is a self-executing statute, which provides that an office is deemed vacant upon an officer's "conviction of a crime involving a violation of his oath of office." A misdemeanor conviction for conduct outside the line of duty will be considered a crime involving a violation of one's oath of office under Public Officers Law §30(1)(e) only if the violation is apparent from the Penal Law's definition of the crime. See, Matter of Feola v Carroll, 10 NY3d 569 (2008); see also, Matter of Duffy v Ward, 81 NY2d 127(1993). In addition, that Section is applicable to misdemeanors, an element of which includes "knowing or intentional conduct indicative of a lack of moral integrity". Id, at 135. Summary dismissal is, therefore, justified in circumstances where the misdemeanor for which the officer is convicted "demonstrat[es] a lack of moral integrity," namely, one that involves a "willful deceit or a calculated disregard for honest dealings". Id.

Under Feola and Duffy, the proper inquiry is whether Rogowski was convicted of a misdemeanor which, on its face, demonstrates a lack of moral integrity involving a calculated disregard for honest dealings, not whether the prohibited conduct may have had a particular effect. The crime of criminal contempt in the second degree in violation of Penal Law §215.50(3) involves the " intentional disobedience or resistance to the lawful process or other mandate of a court". A person is guilty of an attempt to commit a crime, as defined under §110.00 of the Penal Law, " when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime". In other words, an attempt is akin to the last proximate or ultimate step toward commission of the substantive crime.

An Order of Protection is a mandate of the court. Simply put it is a command, a directive, a decree or a dictate of the court. The Order of Protection is especially significant in cases involving allegations of domestic violence. Herein, Family Court Judge Carter issued a complete stay away Order of Protection in favor of Rogowski's wife. The Order was personally served on Rogowski in open court, after the Family Court Judge specifically advised Rogowski of the terms and contents of the Order. The Order of Protection plainly dictated that Rogowski was to "stay away" from his wife, to avoid any communication with his wife and refrain from any criminal activity including "menacing" against his wife.

Prior to taking the office of councilmember for the Town of Cheektowaga Rogowski took an oath to "support the Constitution of the State of New York" and implicitly, to "uphold the laws of New York". By pleading guilty to the charge of attempted criminal contempt Rogowski demonstrated a "calculated disregard" of a mandate of the Court. The attempted disregard of the Court Order underscores the respondent's lack of moral integrity, implying that he "lacks the capacity to swear honestly or has no serious intention of abiding by [the] promises" of his oath of office, such that "the very act of taking the oath is rendered meaningless." Duffy, at 134. Stated another way, one who engages in conduct likely to violate a court order is someone wanting in moral integrity.

A review of the elements of the crime of attempted criminal contempt under Penal Law §215.50, as modified by Penal Law §110.00, indicates clearly that it is a "crime involving a violation of [an officer's] oath of office." Pursuant New York Penal Law §110.00, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. Conduct which tends to effect the commission of a crime means conduct which comes dangerously close or very near to the completion of the intended crime. If a person intends to commit a crime and engages in conduct which carries his or her purpose forward within dangerous proximity to the completion of the intended crime, he or she is guilty of an attempt to commit that crime. It does not matter that the intended crime was not actually completed. See, Charges to Jury in Crim Case in NY §§4:13, 4:14.

CONCLUSION

The moment the respondent pled guilty to the criminal offense of attempted criminal contempt, a "crime involving a violation of [an officer's] oath of office," his office as a member of the Town Board for the Town of Cheektowaga became vacate. As such the respondent lacks jurisdiction to continue to serve in the public office as councilmember by operation of POL §30(1)(e). Therefore, it is hereby;

ORDERED, ADJUDGED AND DECREED, that petitioner's petition is granted and the respondent, James R. Rogowski, must vacate the public office of councilmember for the Town of Cheektowaga. It is further;

ORDERED, ADJUDGED AND DECREED, that respondent's counterclaim is hereby dismissed in its entirety.

______________________________

MARK A. MONTOUR, JSC

September 18, 2018

Mark Montour, J.