Judge Paul Czajka

Paul Czajka was actually a Columbia — not an Albany — County Court judge. He was apparently assigned to this case because one of the two sitting Albany County Court judges had recently retired, and there was a large backload of cases. In the Nickel case, Judge Czajka took on the role of a prosecutor. How? By seeking to redirect the prosecution's theory and proof of the case relative to a central piece of evidence: a sexual photograph allegedly depicting Nickel and a boy. As was the case in the indictment itself, at trial the prosecutor had indicated numerous times that this photo was evidence not only of a pornography-related charge, but also of the top charge alleging oral sex. But after a mysterious "sidebar" involving only Czajka and the prosecutor — Nickel's lawyer was, inexplicably, excluded from this — the prosecutor did an about-face on this crucial issue.

"A number of judges [in child sexual abuse trials] have been hostile to the defense and have consistently ruled so as to hamper the defense and facilitate the prosecution. In some instances facts introduced into evidence have been ignored, and findings declared as if the testimony had never been presented." 
— from Accusations of Child Sexual Abuse, by Hollida Wakefield and Ralph Underwager, 1988, pg. 134.

Judge Czajka's questionable conduct on the bench is by no means limited to the Nickel case alone. Presented below are highlights of several of the other cases over which he presided.

Before he became a judge, Czajka was the District Attorney for Columbia County – a position he would actually return to some years later. Below are a couple of 'interesting' cases (Third Department appellate decisions) from that era:

People v. Dolan, 576 N.Y.S.2d 901 (1991)

Here, the police chief was convicted of various corruption-related crimes. Instructive as to the culture of Columbia County.

[902] "In May 1991, a Grand Jury handed up a 21-count indictment against defendant, charging him with crimes allegedly committed during his tenure as Chief of Police of Hudson, Columbia County.

[903] "Defendant Grandinetti testified that he saw defendant use cocaine at a bar in 1986. Frances Magana testified that she told defendant about the frequent use of drugs by several Hudson police officers and a close friend of defendant. She further testified that she had seen a police sergeant and defendant's brother use drugs. The third witness, Investigator David Harrison, testified that defendant had told him that Felicia Prager reported that a specific Hudson police officer was a drug user and that Hudson police officers were her best customers."

People v. Peters, 590 N.Y.S.2d 916 (1992)

This is the only child-sexual-abuse case we were able to find for this time period; i.e., Czajka's (first) tenure as D.A. (There were other sex cases, but all of those involved adult alleged victims.) It is possible there were other child-sex cases which resulted in acquittal, and thus were not appealed and therefore would not appear in legal volumes.

[917] "These charges were the result of allegations made by a 13-year-old female student at the high school where defendant was a gym teacher and swimming coach.

"County Court ruled that the prosecution could introduce evidence that defendant had a prior consensual sexual relationship at the school with a 17-year-old student of the high school as a prior bad act to establish intent, motive and a common scheme. This evidence was received at trial over defendant's objection."

It is unclear whether Czajka personally prosecuted this case. In any event, given that 17 is the age of consent in New York State, a relationship with a person of that age would have been perfectly legal. A judge allowing such 'evidence' in the county where Czajka was then DA would undoubtedly have given him the impression that, once he himself became a judge, such rulings from the bench would be perfectly acceptable.

"Defendant was found guilty of the charges alleging sexual abuse in the second and third degree (misdemeanors), but was acquitted of the two sexual abuse in the first degree (felony) counts..."

Therefore, in apparently the only trial during Czajka's (first) tenure as DA in which a defendant was convicted of child sexual abuse charges, the latter was convicted only of misdemeanors.

[918] "County Court committed reversible error requiring a new trial in admitting testimony of defendant's prior consensual relationship with a 17-year-old female student on school grounds. Because the testimony was not relevant to any issue in the case other than showing defendant's propensity to commit the crimes charged, it was therefore inadmissible, prejudicial and unfair...It is clear that this evidence is relevant only as to defendant's propensity to commit the crime charged, namely that he was more likely to have committed the act charged by virtue of his earlier sexual relationship with the 17-year-old student. The testimony did not come within any of the Molineux] exceptions...and its prejudicial effect outweighed any probative worth attached to it."

The Appellate Division therefore reversed even the misdemeanors that this defendant was convicted of. Thus, it appears that, as DA, Czajka did not have a single child sexual abuse conviction that survived appeal.

from Records and Briefs :

[10] "In October of 1990, the complainant skipped [Peters'] gym class...After being harshly reprimanded by him in front of another teacher and two students, the complainant accused [Peters] of sexually abusing her...A few days after the allegations were made, the complainant called Jessica Nabozny, a witness for the defense. She told Nabozny that the state police would be contacting her and she wanted Nabozny to tell the investigators that she had known about the abuse...Ms. Nabozny testified that she was never told by the complainant that [Peters] had sexually abused her."

[21] "Although the trial judge attempts to couch it in different terms, it is clear that the essence of the judge's ruling was that this evidence [of Peters' previous consensual relationship with a 17-year-old] was being offered and accepted to show propensity. Clearly, the Judge's rationale implies that if [Peters] had sexual relations with a student in the past that fact is probative [of] whether he had sexual relations with the present complaining student."

[29] "During the course of the pre-trial hearings, [Peters] and his counsel learned that [the complainant] had, prior to accusing [Peters] of forcible abuse, accused her father of sexual abuse and rape. Defendant also learned that these allegations had been investigated by the State Police, who had determined that the accusations were unfounded. Believing correctly that this evidence would weigh heavily with a jury in a case where each party's credibility was a critical part of the determination, the prosecution sought to restrain the defense from cross-examining the complainant on this issue, or offering any other evidence of the false allegations. The trial judge granted the prosecution's motion in limine."

[30] "The People attempted to minimize these [alleged false rape] complaints by [31] classifying them as 'rumors' going around school."

"The Assistant District Attorney attempted to assert to the court that the classification of these complaints as rumors was not her opinion but that of the investigator []. However, Investigator Louis Battistello testified differently at the pre-trial hearing regarding his investigation of the complainant's prior rape allegations...He indicated that these statements by the students were not the product of rumor, as the District Attorney had characterized them, but were told to the students directly from the complainant... He also indicated that after his investigation of the alleged rape by complainant's father, he found the complaint to be false...Notwithstanding the People's mischaracterization of this evidence, it is clear that the alleged rape and sexual abuse by [the complainant's father] was investigated by the State of New York and was determined to have been fabricated." [Emphases original.]

[32] "The prior complaints of sexual abuse and rape by the alleged victim [33] regarding her father to several friends cast substantial doubt on the validity of the charges made by the victim in this instance and were probative [of] the credibility of the complainant."

[34] "The jury heard [the complainant] give a generalized explanation of the alleged incidents of sexual abuse by [Peters]...She could make no specific reference to the actual date this occurred, the day of the week or the time of day...She was extremely evasive in her claims of what happened, how it happened, when it happened and how many times it happened."

[35] "[The complainant] testified that she told Regina [36] Librouk [a teacher] about the abuse by [Peters]...However, Regina Librouk testified on behalf of the defense and had no recollection of ever being informed by [the complainant] that she was being abused by anyone."

[Clearly, this case should never have been prosecuted at all, much less brought to trial. The charges should have been dropped as soon as the prosecutor realized how non-credible they were. Moreover, the prosecutor in this case -- whose boss was then-DA Paul Czajka -- deliberately misled the judge and jury regarding not only the charges related to Peters, but also, the palpably false allegations this complainant made against her own father.]

And now, some cases (all Third Department decisions) presided over by Judge Czajka:

In re Barbara O., 676 N.Y.S.2d 241 (1998)

[241] "Respondent was found guilty of violating, on three occasions, an order of protection forbidding him from having any unauthorized contact with his then 12-year-old daughter, and was sentenced to serve six months in jail. In addition, Family Court [Czajka] issued another order of protection, directing respondent to stay away from all five of his children, including his 17-year-old son.

"Respondent challenges Family Court's disposition contending that the sentence is unduly harsh. We agree. Two of three violations stemmed from incidents in which respondent merely drove his car into the driveway of the children's home to deliver items to their mother at her request; he was on the premises for only a few minutes each time and did not exit the car or interact with the children, who were inside. The third incident arose from respondent's attendance at a relative's birthday party, where the children were also present with their mother. Again, he had no direct contact with any of them, remaining outside or in a separate room at all times.

"Significantly, there was no evidence that respondent knew that his daughter would be at the party, that he intended to communicate or interact with her on any of these occasions, or that she suffered any negative consequences -- emotional or otherwise -- as a result of these brief encounters.

[242] "[Given that the father at issue here is] a farm laborer who has apparently had no previous involvement with the law...we find that a sentence of six months' incarceration, with the last five months suspended...is more in keeping with the nature of the offenses..."

Thus, the appellate court reduced the Czajka-imposed sentence by some 83%. Judge Karen Peters wrote a dissent in this case, which was joined by Justice Crew:

"Unlike the majority, we do not find that the sentence of six months' incarceration to be either an abuse of discretion or unduly harsh.

"The order of protection was issued after a determination that petitioner had sexually abused his 12-year-old daughter by touching her breasts on two occasions, forcing her to try on some of his women's clothing and by entering into the bathroom and watching her shower.

"[There was] continued emotional torment to this child by respondent's mere presence...

[243] "To abide the reduction of this jail term would constitute, in our view, an abrogation of the safeguards provided to this vulnerable child..."

Even assuming that Judge Karen Peters' recitation of the situation leading up to the order of protection is accurate – a pretty big leap of faith, given her lack of candor concerning the facts of Nickel's case – the issue in this appeal was not why the order of protection was issued, but rather, whether – and to what degree – it had been violated, an issue which Peters virtually ignores.

People v. Masucci, 697 N.Y.S.2d 755 (1999)

Judge Karen Peters wrote this decision, drastically reducing the sentence imposed on a plea to the possession of child pornography.

[755] "Appeal from a judgment... convicting defendant upon his plea of guilty of five counts of the crime of possessing an obscene sexual performance by a child...[756] He was sentenced to concurrent terms of 1-1/3 to 4 years in prison, and a fine of $10,000 was also imposed.

"[T]he court [Czajka] explained its sentencing rationale as follows:

"'The Court takes note of the favorable [presentence] report as well as numerous letters written on behalf of defendant. The Court takes further note of the circumstances in which the contraband was seized and notes that the contraband was, indeed, 20 some years old. But that, in my opinion, only goes to whether or not the sentences should be concurrent or consecutive and not to the fact that the defendant is deserving of a significant sentence. The very possession of this contraband, as the Legislature has decided, is so offensive, so heinous as to require this Court, in my opinion, to sentence [defendant to a prison term of 1-1/3 to 4 years on each count].'

"The crimes at issue are class E felonies [the lowest level of felony]...and there were a number of authorized dispositions...including an indeterminate sentence, with a minimum not exceeding one third of the maximum...or an alternative definite sentence...In this case, County Court seemingly viewed the statutory scheme as requiring the imposition of a sentence of 1-1/3 to 4 years, while the Penal Law clearly establishes 1-1/3 to 4 years as the harshest possible sentence if the court decides to impose an indeterminate sentence. County Court compounded the error by limiting its consideration of relevant sentencing factors to the question of whether to impose consecutive or concurrent sentences. Those factors should have been considered not only on the issue of the appropriate indeterminate term for each count, but also on the question of whether this was an appropriate case for an alternative sentence...By imposing the harshest possible indeterminate term for each count as though that were the sentence required by law, County Court failed to exercise the sentencing discretion granted to it..." [Emphases added.]

"In these circumstances, and considering defendant's age, disability, lack of a recent criminal record, and acceptance of responsibility for his crimes, together with the circumstances surrounding his possession of the material and the recommendation of the presentence report, we exercise our discretion to reduce the concurrent sentences to time served on each count...We are also of the view that the fine should be reduced to $2,000."

Therefore, Masucci served about 1-1/3 years, instead of the maximum 4 that Czajka had imposed on him. That translates to a 67% reduction in sentence and an 80% reduction in the fine imposed by Czajka.

People v. Davis, 701 N.Y.S.2d 130 (1999)

Controlled substance case; again, Czajka imposed the maximum possible sentence, which was reduced on appeal.

[131] "Following a jury trial, defendant was convicted of six counts of criminal sale of a controlled substance in the third degree...County Court sentenced defendant to concurrent indeterminate prison terms of 8-1/3 to 25 years...all to run consecutive to an 8-1/3 to 25-year term imposed on the remaining felony conviction (count 7).

"A review of the presentence report reveals that at the time of the crimes for which defendant stands convicted he was 18 years old and had completed an eighth grade education.

"[W]e believe that the resulting aggregate sentence -- a minimum of 16-2/3 years and a maximum potential total of 50 years -- was unduly severe in view of defendant's age, the nature of these crimes, his isolated prior conviction which did not represent an extensive criminal history, and the complete lack of any violent criminal history...Accordingly, the 8-1/3 to 25-year sentence imposed on count 7 of the indictment is modified, in the interest of justice, to run concurrently -- rather than consecutively -- with the sentences imposed on the remaining counts..."

Thus, the aggregate sentence was reduced from 16-2/3 to 50 years, to 16-2/3 to 25 years, thereby cutting the maximum time he could serve in half.

from Appellant's Brief:

Czajka at sentencing: "[I]t is clear to me that in all likelihood you will continue your criminal behavior..."

People v. Phelps, 701 N.Y.S.2d 494 (2000)

(Misdemeanor) Endangering the Welfare of a Child reversed; again, Czajka had imposed maximum possible sentence.

[495] "Defendant was indicted on one count each of assault in the second degree...and endangering the welfare of a child... At the conclusion of the trial, the jury acquitted defendant of the assault charge but found him guilty of endangering the welfare of a child. The charges arose from several incidents occurring July 1, 1998 through July 3, 1998, in which defendant struck his 17-year-old daughter with his hand and/or his belt. Defendant struck his daughter as a form of corporal punishment, allegedly because of her misbehavior which included, inter alia, substance abuse and disrespectful conduct toward her parents. County Court sentenced defendant to one year in jail and fined him $1,000.

"[T]he indictment is jurisdictionally defective because defendant was charged under Penal Law § 260.12(2), which does not cover the alleged illegal acts.

"Here, the only applicable subdivision of Penal Law § 260.10 under which the People could have charged defendant was subdivision (1), but the daughter was too old for that subdivision to apply. Instead, the prosecution pursued a tortured application of subdivision (2)...

[496] "[T]here was insufficient proof that the injuries inflicted by defendant rose to the level of the 'serious' or 'protracted' injuries necessary to constitute acts of abuse...Defendant called as a witness the emergency room doctor who treated the daughter on July 4, 1988, who testified that the minor physical injuries suffered by her would not create a substantial risk of death, would not create serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ, nor protracted impairment of physical health.

"Under the facts of this case, the only possible applicable portion of the definition of abuse is 'protracted impairment of. . .emotional health.'

"[T]he evidence at trial did not support the conclusion that the daughter's emotional health had been so impaired. She did not testify about her emotional state and the hospital records indicate that she denied being in any pain and was in good spirits when she went to the emergency room.

"Accordingly, the judgment of conviction should be reversed."

from Appellant's Brief:

At sentencing:

Defense attorney: "Now, this is also not a case where there should be enhanced punishment based upon the fact that this matter was taken to trial. My client's decision to take the matter to trial was certainly not a frivolous decision."

Czajka: "You can rest assured that the Court never punishes anyone for going to trial. In fact, I presume all cases should go to trial."

...

Defense attorney: "Now the probation report...does recommend a sentence which would be no more than a sixty-day sentence of incarceration...and recommends a course of treatment which is apparently available for anger management, and domestic violence."

Phelps (defendant): "I don't think that the Court understands the whole situation here. When a seventeen-year-old daughter is coming home under the influence of alcohol, and -- drugs, beats up her mother, kicks a house apart, then her parents, comes home with bruises, the police knew about this and the police wouldn't do anything about it. I don't think there should be any sentence at all for me. That's all I have to say, Your Honor."

Czajka then proceeded to sentence Phelps to the maximum: 1 year in jail, and a $1,000 fine.

Czajka had allowed the prosecutor to introduce evidence of prior alleged hitting of his daughter (which was not covered in the indictment).

Again, from the brief itself:

"[T]here was no issue in this case that was properly proved by [the above 'prior bad acts']. Those item[s] only served to prove that the Defendant had a propensity to commit the charged acts."

from Appellant's Reply Brief:

"Clearly, when the Defendant is advised after opening statements that the People will prove the alleged offense by an additional 66 acts over eleven years, he is not adequately advised of the conduct for which he is charged. Here the People threw in everything they had to try to get a conviction, regardless of due process and rules of evidence."

Ah, but, to Czajka, these are mere technicalities.

People v. Rubin, 706 N.Y.S.2d 225 (2000)

This was a case of alleged medicaid fraud; he was convicted of one count of 2nd degree larceny and 8 cts. of filing a false instrument.

from Appellant's Brief:

"[Rubin was sentenced] to a near-maximum, aggregate term of 4-2/3 - 14 years in prison, a $50,000 fine, and $620,237.20 restitution.

"This case is about the government's obligation to abide by the rule of law. It is a case about the government fashioning a criminal charge where the law states none. It is about prosecuting a man for statements he never made and misrepresenting that fact to a jury; about prosecuting a remote sub-sub-paragraph of a civil regulation never enacted into criminal law by the legislature; about disregarding the inapplicability and vagueness of that regulation which is directed to state regulators and not to the general public. It is about asking a lay citizen's opinion on a boilerplate form whether he complied with unspecified state and federal laws, and then prosecuting his answer of 'yes' on the basis of [a] purported violation of the same vague and inapplicable regulatory subsection...[I]t is about a theory of criminality that never should have confronted a citizen of this State and never should again.

"Mr. Rubin founded Allstate Home Care, Inc....in 1981, a Dutchess County licensed home care services agency which provided services to Medicaid patients as well as to self-pay clients. Without any prior criminal, civil or even administrative precedent, the Attorney General's office brought this case, and ongoing treble-damage civil litigation, accusing Mr. Rubin and Allstate of charging self-pay patients less than the Medicaid rate which the State gives them. But there is no criminal statute that even remotely addresses this topic...

"[T]he trial Court [Czajka] abjectly denied Defendant his basic constitutional right to a defense and made other profound errors in connection with the jury charge and sentencing. The Court precluded defense witnesses in their entirety, time and again, refusing to permit the Defendant to respond to the charges and to lines of proof introduced by the prosecution. For example, in a case charging that Defendant falsely stated that he complied with the law, Defendant was not permitted to put state of mind evidence that the law was vague and that he did not understand or intend to violate it. The Court also refused to respond to prosecution proof of economic motive with evidence showing he had no economic incentive to make any false statements. The Court refused to charge [i.e., instruct] the jury about a second regulation that applied to the charges [which would have] made the prosecution's burden of proof more difficult. Incomprehensibly, at sentencing, the Court gave Defendant near-maximum terms of imprisonment largely because his trial attorney exercised Defendant's constitutional rights by arguing that the evidence showed that someone else was responsible for much of the conduct the prosecution claimed was criminal. These are but a few of the many errors that litter the record in this case.

"The jury returned a verdict of guilty on all nine counts against Mr. Rubin...and Judge Czajka, on motion of the prosecution, remanded Appellant to prison...Two days later, by order of this Court [3rd Dept.], Appellant was restored to bail and remains on bail pending appeal.

"No brief summary of the trial below would be complete without some allusion to the nature of the trial that was afforded Defendant in this case. Even on a paper record it is entirely evident that relations between the trial judge and the defense were abysmal. We...argue below...that Defendant was abjectly denied a fair trial...[S]uffice it to say that the trial was marked by:

* an unusual number of mistrial motions, predicated on denial of the right to present a defense;

* an unusual number of defense witnesses (4) precluded from taking the stand at all;

* an unusual number of instances where the prosecution introduced evidence on a line of proof but the defense was not permitted to rebut that evidence;

* an unusual number of instances where the trial Court intervened to question a witness to argue or present a point that favored the prosecution;

* unusually bitter exchanges between Defense Counsel and the Court." [Emphasis added.]

The second-to-last item above, in bold, is highly reminiscent of a point in Nickel's trial, where Czajka intervened to convince the prosecutor to change his theory of the case relative to a sexual photograph.

...

"The trial below was marked by unfairness of a magnitude and scope that is rarely seen. Time after time, the Defendant was prevented from rebutting allegations and lines of proof that the prosecution was freely permitted to explore. In the end, on any impartial observation, the trial became less a search for truth than a quest for a particular result." [Emphases added.]

"As even the prosecution conceded at least at the outset of the case, the Defendant's knowledge of the law was a central factual issue at trial...[It is alleged that] the Defendant falsely stated his compliance with applicable state and federal regulations. For the prosecution to prove that Defendant's statements were knowingly false, they had to prove the state of his knowledge of the law with respect to the public charge regulation in particular. [This relates to charging different prices to Medicaid vs. non-Medicaid patients.]...But the Defendant was blocked in critical ways from offering relevant evidence on these fundamental issues. Repeatedly, the trial judge stated that 'ignorance of the law' is no excuse and evidence of confusion or beliefs as to the state of the law are not binding on the Court...But the law was placed directly into issue by the prosecution's charges and evidence. Clear error was committed in precluding Defendant from responding.

"In order to demonstrate circumstantially that Defendant knew about the public charge regulation, the prosecution offered testimony concerning public knowledge of the regulation and the supposed efforts of the State to educate the industry concerning this regulation. Thus, two prosecution witnesses...spoke of the existence of regulations governing the relationship between a provider's 'private rate' and the Medicaid rate. [One of them] testified as if the prosecution's theory of prosecution here has been common knowledge in the United States since the early 1960s...[She] also testified that seminars were organized where she herself spoke with industry groups to address various issues, including the public charge regulations -- the obvious inference being that information concerning the law, particularly the legal view expressed by [her], worked its way to Mr. Rubin.

"Having made an issue of the 'education' of Mr. Rubin and common knowledge concerning the public charge regulation, the prosecution thereafter sought to block every effort of Mr. Rubin to counter with his own evidence concerning the nature and scope of the regulation. In direct response to prosecution evidence of seminars educating industry groups concerning the public charge regulation, Mr. Rubin sought to call Phyllis Wang, the head of the industry association of which Mr. Rubin was a member...Ms. Wang was called to testify that Mr. Rubin did not attend any seminars conducted by the State, and that Susan Malavet, not Mr. Rubin, was the designated recipient of association literature. Incomprehensibly, the defense was precluded from calling this witness."

The parallel to this in Nickel's case was Czajka's refusal to allow a photography expert to testify that Nickel was not the adult pictured Czajka (5 of 27 ) in the sexual photo that was central to that case.

"The defense also sought to call as a witness Barbara Gross from the Dutchess County Department of Social Services who...administered various programs under which Allstate furnished home care services, including the Medicaid program and the EISEP program, a supplemental program designed to provide home care for the elderly...Gross would have testified that on an occasion when funds for the EISEP ran out, she asked Mr. Rubin to take on as self-pay clients elderly participants in the program at the existing rate, which was well below Allstate's Medicaid rate. In other words, a responsible government official asked Allstate to do what the prosecution claims in this case was illegal – charge members of the public less than the Medicaid rate. It is hard to imagine more compelling state of mind testimony than this for the proposition that Defendant did not believe that merely charging less than Medicaid to the public was illegal. Yet this witness was precluded...Similarly, at numerous points during the trial, questions were precluded to establish that other companies in Dutchess County were permitted to charge lower than the Medicaid rate." [Former emphasis original; latter emphasis added.]

"The defense also sought to call as a witness none other than the boss of [one of the two above-named prosecution witnesses], Kathy Gill, who at the time was the Chief Health Care Fiscal Analyst for the Bureau of Long-Term Care Reimbursement of the Department of Health...Among other things, Gill would have testified that in response to confusion concerning the method and meaning of the cost reporting procedures, that the State was in the process of re-doing the procedures...Plainly, if the head of the unit could not meaningfully comprehend the cost report procedures, then the Defendant, a layperson, could not be expected to understand." [Emphasis original.]

"The trial court also improperly excluded evidence that was directly relevant to the Defendant's state of mind -- unquestionably a central issue in this case...Reflexively, the trial Court sustained objections whenever defense counsel...sought to question witnesses concerning statements made by the Defendant or regarding the Defendant's knowledge of a particular fact. While the trial Court generally refused to permit a contemporaneous record to be made of the basis for sustaining objections...no doubt the Court regarded any statement by the Defendant proffered by the defense as inadmissible hearsay, as opposed to such statements when introduced by the prosecution.

"Similarly, witnesses were precluded from offering state-of-mind testimony establishing that Mr. Rubin did not believe he was doing anything wrong in relation to the public charge regulation...The court also refused to permit any questions to establish the expertise and reputation of...the accountant who prepared the early cost reports...[He] was an expert in preparing cost reports in this field, and, without question, [his] reputation and competence...was relevant to the Defendant's reliance on figures in a report prepared by him. Incomprehensibly, the Court repeatedly refused questions directed to this issue...

"The trial Court also blocked the defense from addressing the central issue of the motivations and bias of prosecution witnesses, most particularly Susan Malavet. Malavet was a critical witness who was at the center of all of the charges in this case...Her potential bias towards Mr. Rubin was very much in issue. The evidence showed that Malavet had drafted a proposal to take over the company and greatly diminish Mr. Rubin's salary and authority... A defense witness testified that Malavet said in reference to Mr. Rubin, that 'she was going to fuck him good.'...A factual question at trial was whether and to what extent Malavet exercised authority in the office relative to Mr. Rubin. Plainly, her credibility and motivations in testifying were central in the case. In several, critical respects the Court blocked testimony and proof regarding Malavet's motivations in testifying...First, the Court blocked the defense from questioning Malavet about allegations that she had written unauthorized checks to herself. The unwinding of this ruling demonstrates a strange bias of the trial Court [Czajka] in favor of one party -- the 'People' -- and against another, the defendant Daniel Rubin. Prior to her testifying, Malavet had successfully quashed a defense subpoena...for her financial records...One of the stated purposes for the subpoena was to obtain records on this point regarding checks...The trial Judge quashed the subpoena essentially on the say-so of the prosecutor that the Attorney General's office had inquired into all of All state's affairs and that he was personally satisfied that checks written to Malavet were not unauthorized... Questionable as this ruling was, matters became worse when Malavet took the witness stand. On cross-examination, defense counsel asked Malavet a series of questions about these checks and Malavet denied any impropriety... Then the Court demanded a proffer [i.e., a reason for] the line of questioning. Defense counsel proffered a schedule of the checks and represented that the Defendant himself had reviewed the checks and identified several that appeared unauthorized...Immediately, the Court ruled that the questioning was without a proper basis and ordered the prior testimony to be struck from the record." [Emphases added.]

"This ruling was striking because the Court quashed the Malavet subpoena on the mere say-so of the prosecutor, but would not even permit questioning of a witness on the basis that a defendant is not a sufficient basis for asking questions. If this [were] the law, defense lawyers could hardly ask any questions, since their clients are so frequently the source of their information. In short, the twin rulings on the subpoena and the questioning of Malavet reflected a conscious bias towards one party..." [Emphasis added.]

"Apart from substantive and evidentiary error, the trial Court conducted the trial in a way that deprived the proceeding of any semblance of impartiality. The trial Court repeatedly intervened in the questioning of witnesses...And, time after time, the trial Court [Czajka] intervened in a manner that clearly supported the prosecution. A few examples will suffice. During her cross-examination, Susan Malavet testified that neither she (nor Rubin apparently) knew that the cost report she prepared contained salary attributable to the Cripple Creek venture...This was critical testimony for the defense. But the trial Court saw fit to interrupt and mischaracterize her testimony, formulating it that Malavet was stating that both she and the Defendant knew the report contained the Cripple Creek salary...To her credit, Malavet did not follow this lead and stuck to her testimony -- that she did not know, although the Court cut her off before the conclusion that the Defendant also did not know." [Former emphasis added; latter emphasis original.]

"During cross-examination of Stephen Wagner, the Allstate Accountant, the Court [Czajka] again interrupted to make points for the prosecution. Again, in critical testimony to the defense, Wagner testified that he did not speak to the Defendant concerning the cost reports, although they spoke about other financial reports...At this point, the Court intervened and asked questions to suggest that Wagner dealt with the Defendant also in regard to the report...Again, this was a not so subtle effort to sway critical testimony in the case, so much so that Defense Counsel objected to the Court's questioning." [Former emphasis added; latter emphasis original.]

"The Court added to the atmosphere of unfairness by refusing to permit Defense Counsel to have sidebars to make his objections and his record concerning the Court's rulings, a practice about which counsel objected...The prosecution, for its part, had no difficulty approaching to raise legal issues...The Court also forced Defense Counsel to do a remarkable amount of previewing of the testimony of defense witnesses, a procedure the prosecutor was never required to follow. In the end, four defense witnesses were precluded in their entirety." [Emphases added.]

"On [one occasion] the Court [Czajka] sustained an objection before the prosecutor MADE any objection. In a rare instance where the body language of a judge became a subject of the paper record, Defense Counsel objected that the Court [Czajka] was continuously turning his back on Counsel during cross-examination, and making facial expressions, thus potentially influencing the jury's impression of events...The Court did not deny doing what Defense Counsel had seen, but stated that because of prior surgery the Judge needed to stand on occasion. This did not explain why the Judge had to stand with his back towards Defense Counsel, or why, apparently, this did not happen with prosecution witnesses." [Emphases added.]

"At sentencing, the Court made clear that a major consideration was what the Court called the way Defendant 'shamelessly' sought to shift blame for his criminal conduct to Susan Malavet. The Court disagreed with Defendant's 'position at trial as expressed in cross-examination of witnesses'...and stated to Defendant, 'not only did you know about those rules and regulations, you explained those rules and regulations to the person you now blame for your criminal conduct, Miss Malavet...[You engaged in] manipulative behavior regarding the facts underlying the crimes for which you stand convicted and your attempt to shamelessly escape responsibility by placing it on the shoulders of others.'

"Mr. Rubin's 'attempt to shamelessly escape responsibility' is otherwise known as the exercise of his constitutional rights to counsel and to go to trial. At his trial, Mr. Rubin's counsel had an obligation to defend his client zealously. In numerous respects, the evidence pointed towards Ms. Malavet as an individual intimately involved in the conduct of which Mr. Rubin stood accused. After all, by her own admission, Ms. Malavet had implemented the idea of having two rates at Allstate...Defense Counsel would have been guilty of malpractice had he not focused on her role.

"Other than exercising his rights to counsel and a trial, in no respect did the Defendant 'shamelessly' blame Malavet. He never took the witness stand. In fact, the Court was simply wrong in asserting that Mr. Rubin 'blamed' Malavet at all. His counsel during summation went to some length to point out to the jury that he was not arguing that Ms. Malavet committed any crimes, but rather, that nobody had..." [Emphases original.]

"Even leaving aside the punishment of Defendant's exercise of his constitutional rights, the sentence imposed was unduly harsh and severe...Mr. Rubin was sentenced to near-maximum terms aggregating 4-2/3 to 14 years in prison...

"The Court at sentencing also focused on Mr. Rubin's greed and how he 'stole' over $600,000...The Court disregarded that this money went into Allstate, not to Mr. Rubin. Mr. Rubin's salary remained constant over the three-year period during which he was supposedly committing crimes.

"The Court gave no consideration to the fact that the presentence report did not recommend a period of incarceration...nor to the fact that during plea bargaining Judge Rosen had recommended a period of community service and probation, nor to the fact that, without dissent, government officials whom Mr. Rubin dealt with on a regular basis praised him...The sentencing record contained numerous testimonials, which the Court ignored, to Mr. Rubin extending himself to the elderly and seriously ill, if not dying. In many cases, Mr. Rubin offered to continue rate discounts to these individuals, and, if aides were not available, he personally delivered food or provided other necessary services." [Emphasis added.]

Similarly, Czajka also failed to take into consideration the numerous letters written on Nickel's behalf when sentencing him (to the absolute maximum.)

Now to the actual Third Department decision in this case. Judge Karen Peters joined in the opinion reversing 7 of the counts, yet, also affirming 2. The statute pertaining to the 7 reversed counts was held to be unconstitutionally vague. This was a very brief, 2-page, 'boilerplate' decision:

"Based upon the record evidence, there clearly are valid lines of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury here...Likewise, viewing the record evidence in a neutral light and according deference to the jury's assessment of the witnesses, we cannot conclude that the jury failed to give the evidence the weight it should have been accorded..."

This decision contained no discussion whatsoever of the misconduct by Czaika referenced above (in Appellant's Brief).

Then, however, the Court of Appeals reinstated the convictions on the 7 reversed counts, saying the 'public charge' regulation was not unconstitutional as applied to him. Another Third Department panel, again including Judge Karen Peters, subsequently affirmed all convictions. There was no discussion of Czajka's misconduct in any of these cases, either.

It seems incredible that Mr. Rubin would be dealt with so grotesquely unfairly by our 'justice' system, virtually every step of the way. But then again, this just goes to show that it's not just a matter of a 'couple' of crooked or incompetent 'judges,' nor a phenomenon which only occurs in (child) sex cases.

People v. Makas, 709 N.Y.S.2d 650 (2000)

This guilty plea to arson was reversed, due to the fact that, at allocution, the Court (Czajka) failed to establish certain elements of the crime.

[651] "[D]efendant intentionally started a fire in a residential building he owned...The building, which had just been rented to a new tenant but was unoccupied at the time of the fire, had a covered breezeway connecting it to a second, larger residence 14-1/2 feet away. The second building was also owned by defendant and rented to other tenants who were occupying it at the time of the fire. After setting fire to the unoccupied building, defendant called 911, stating that he had set fire and wanted the police to come and shoot him. No one was injured as a result of the fire, but the unoccupied building was severely damaged.

"After his arrest, defendant was found to be suicidal and depressed, with psychotic thinking, and was determined to be incapacitated. He was committed to a mental institution in May 1998, a Grand Jury indicted him on charges of arson in the second degree, arson in the third degree and attempted arson in the third degree in June 1998, and he was found competent to [652] proceed in the criminal proceeding as of July 17, 1998...The examining physicians...opined that his crime probably resulted from his mental illness.

"[W]here the defendant's recitation of the underlying facts [at a plea allocution] clearly negates an essential element of the crime to which he or she is pleading and the court fails to make further inquiry to ensure that the plea is intelligent and voluntary...the acceptance of such a plea is an abuse of discretion...The record here indicates that defendant's recitation at the plea allocution not only failed to establish the essential elements of arson in the second degree, but also negated at least one of those elements.

"We begin our review with the precept that, before accepting a guilty plea, a court must establish the requisite elements of the crime from the defendant's recital of the facts and should not accept the guilty plea as valid without further inquiry if...the elements of the crime are not clearly established...The court should instead [653] refuse the guilty plea and order the matter to trial, advise the defendant that the admissions failed to clearly establish guilt of the crime being pleaded to or take other precautions to see that the defendant is aware of what he or she is doing...

"[D]efendant's responses during the plea allocution failed to establish the elements of arson in the second degree. Specifically, defendant did not admit that he intended to damage an unoccupied building by setting the fire...that he actually damaged an unoccupied building...or that he knew a person was present in the building which he set on fire. Rather than ascertaining that defendant intentionally damaged an occupied building, County Court [Czajka] negated that element when it stated, and defendant confirmed, that defendant had intentionally damaged a building that was not occupied. County Court's acceptance of defendant's guilty plea in these circumstances was error and the conviction must be reversed."

from Appellant's Brief:

Following his arrest, Makas was committed to a psychiatric hospital, by a different (town court) judge, because he was declared – as a paranoid schizophrenic – unfit to proceed.

Referring to his psychiatric admission records:

"Mr. Makas stated that he left his job as a computer programmer about five years ago. He stated that he had been working for IBM for many years but they changed his schedule and he wanted to pursue different interests. He left his job and stated that he mainly concentrated on his studies in physics and other subjects and stayed to himself. He stated that he stopped using his car as he did not see a need for it and was riding around on his bicycle. He stated that about a year-and-a-half ago he started noticing that the people in the town that he lived in were looking at him strangely because he was riding the bicycle. He also said they were trying to run him off the road. He stated that 'this harassment continued and he could not take it anymore.' Hence, he tried to kill himself by trying to shoot himself with a .22 caliber rifle. He missed his head and he is alleged to have set fire to the house in an attempt to kill himself but it is noted that he called the telephone operator asking for help. The police came and arrested him and he was charged with arson...He is purely delusional although he denies hallucinations...[He is] psychotic...[T]here is very strong evidence of major disturbance in his thinking that would interfere with his assistance in his defense. Hence, found not fit to proceed."

However, the above Town Court Judge, upon subsequent psychological examination, found that Makas was fit to proceed.

"[T]he trial Court [Czajka] asked appellant if he pled guilty [to] the charges against him before the trial Court recited the charges to him or asked him any question concerning the factual circumstances surrounding the alleged offense...

"'[A]ppelant's response 'I don't know' to the question of whether his mental illness and medications would adversely affect him was far from certain...Yet the trial Court made no further inquiry regarding the effects of that medication on Appellant's judgment and understanding of the consequences of entering a guilty plea.

"[T]he trial Court failed to make any inquiry into Appellant's intoxication at the time the alleged crime occurred...The plea minutes reveal that the trial Court ignored the fact of Appellant's intoxication on [the day of the crime]. The trial Court also failed to advise Appellant that his intoxication could negate an essential element of the crime charged...

"The trial Court should have been well aware of Appellant's intoxication during the commission of the alleged crime. Appellant admitted to drinking on the day of the alleged offense... Appellant's psychiatric records repeatedly reference Appellant's drinking habits, as well as his diagnosis of alcohol abuse, and despite Appellant's alleged admissions to have consumed alcohol prior to the incident charged, the trial Court never determined whether Appellant knowingly waived his possible defense of intoxication as required by law...

"At sentencing...the trial Court ignored the nature and severity of Appellant's mental illness despite clear and unanimous agreement in all of the clinical evaluations..."

Czajka at sentencing: "Mr. Makas, you are responsible for the conduct that resulted in this indictment, in this conviction. The argument or the suggestion that your unemployment led to your mental illness which in turn led to this criminal conduct is offensive.*...You risked the life, the lives of people within that structure or the adjoining structure. You risked the lives of firefighters and police officers who responded to the fire or fires, and your selfish conduct has led your mother to believe that she is somehow responsible, which is possibly the worst offense for which you stand before me."

* Having examined the statements made by Makas' lawyer, his mother, and Makas himself, we can see no evidence that anyone argued -- or even suggested -- anything of the kind.

People v. Walker, 711 N.Y.S.2d 535 (2000)

This murder trial guilty verdict was affirmed; Czajka had sentenced Walker to the absolute maximum.

"Defendant was indicted for murder in the second degree after his wife, Trudi Eschenbecker, was found drowned in the Hudson River...Defendant was also charged with four counts of criminal solicitation in the fourth degree pertaining to requests that he made to people to assault Eschenbecker by throwing battery acid in her face, break the legs of a former boyfriend of hers and to burn down a house defendant owned...The key prosecution witness was David Gorsline, a nephew of defendant."

from Appellant's Brief:

Walker's attorney, at sentencing: "My client has maintained steadfastly that he did not kill Trudi Eschenbecker. But what I find has to be said, Judge...is that there is someone that is not here today...Mr. Gorsline, Judge, isn't here. The People's star witness, a man who we could also talk about how many bodies are to his credit...He's the only person who has admitted to being a killer in this Court, Judge. He's not here, he suffers no pain. In fact [he] gets a reward...He's accused by the District Attorney of committing sexual acts on his daughter...Then these charges [involving] his daughter, I believe, Judge, they disappeared. To argue on one hand, Judge, [as] the People do, that Richard Walker is this evil being, and then that other man that they know is a killer somehow doesn't deserve punishment, Judge, defies credulity and probably defines the word ironic..." [Emphases added.]

Walker himself at sentencing: "...I too loved the woman and it's a great loss. There is not a night or day that goes by that I don't -- that I don't think about her. I know I didn't kill her. I don't know, for me to have to spend the rest of my life in jail because David Gorsline made a statement, I mean, especially when he has done the things that he's done, such as sexually molesting his...daughter a couple of times, accused of suffocating his baby down in Texas...He took the baby, put it in a plastic bag and took the body and put it under the brush, took his other two daughters and brought them back home. Two to three weeks later he went back down and he threw the body in a dump. That's a man? That's a father? He beat his kid with a belt so bad that...he had to be hospitalized. He was caught in bed with his sister. She had a baby by him. And when his daughter was eleven, he sexually molested her then. Now she's fourteen, and he allegedly molested her. That's the man that's supposed to have the credibility that the D.A. says he has. I know I didn't kill her, I know I didn't kill Trudi, because I loved her very much. Why that man isn't here on trial, I don't know...So they gave him immunity, so that he would testify against me, of all the crimes he's done, because they threatened to reopen his case down in Texas, and that's why he got scared...I'm standing here facing the rest of my life because of that man. But yet the D.A.'s office gave this guy immunity to get me...One other thing I got to say is a lot of this has to do with because I filed a lawsuit against the D.A.'s office in Ulster County." [Emphases added.]

Czajka at sentencing: "You, Mr. Gorsline, are going to spend the rest of your life in prison because you truly are an evil person."

The defendant's name is Walker; Gorsline is the name of his nephew; i.e., the star witness against him and likely Trudi Eschenbecker's true killer. It seems that Czajka had something of a Freudian slip here.

Czajka sentenced Walked to the absolute maximum: 25-life on the murder charge, plus one year consecutive on the other counts, for a total of 28-life.

The defense hired a private investigator to retrace the route Gorsline said he took that day, primarily to assess whether it was possible to drive it in the 45 minutes Gorsline claimed. He found it took more like 70 minutes. But Czajka would not allow that testimony.

This is similar to how, in Nickel's case, Czajka would not allow a photography expert to testify that Nickel was not the adult pictured in a sexual photograph which was central to that case.

Again, Appellant's Brief:

"The People's star witness was confessed liar and convicted baby-killer David Gorsline. Gorsline, defendant's nephew, worked with Richard Walker in his moving business along with Mike Binns."

Referring to the fact that Czajka refused to give the jury an 'interested witness' charge (i.e., instruction) regarding Gorsline:

"Gorsline had an interest to craft a believable story since the People reserved the right to void its agreement with him should they discover that he testified falsely...[T]he jury should have been instructed that they should weigh Gorsline's testimony since he had an interest in being believed and not being prosecuted for murder. The failure to provide the jury with an interested witness charge permitted the jury to view only the defendant as the interested witness. This error created an undue burden on the defendant and deprived him of a fair trial."

Referring to the fact that Czajka also refused to give the jury a 'circumstantial evidence' charge:

"Here, the People's summation invited the jury to convict defendant only on circumstantial evidence without a defendant obtaining the benefit of a charge on this concept. The denial of a circumstantial evidence charge created a biased jury, in which the jury was permitted to consider a purely circumstantial evidence case without the benefit of a charge.

"Defendant [also] contends that the [reasonable doubt] instruction improperly diminished the People's burden of proof. When explaining reasonable doubt to the jury, the trial Court [Czajka] stated, 'when we talk about reasonable doubt we mean doubt for which some reason can be given.'...This statement erroneously implied that the jury must find an articulable reason to support its doubts about the People's case...Jurors may harbor a valid reasonable doubt even if they cannot explain the reason for the doubt.

"Defendant was denied a fair trial by the Assistant District Attorney's remarks that defendant sought to contact his attorney at the time he learned of [the decedent's] death. During the cross-examination of defendant, he was asked questions pertaining to his request for a lawyer...Defendant asserts that the prejudice was of such a nature as to deprive him of a fair trial. Permitting an uncorrected reference that defendant needed an attorney implied that he committed the crime. To the average juror, a defendant would not request an attorney unless he did something wrong. The assistant district attorney, seizing on this concept, argued it to the jury...[T]he trial court [Czajka] erred by not sustaining the objection and deprived the defendant of a fair trial."

"Trial Court erred by not allowing defendant to introduce experimental evidence. The defense investigator testified that it took 74 minutes to drive the route that David Gorsline took in allegedly assisting defendant in this murder. Gorsline testified that he arrived home after the murder between 10:45 to 10:50 PM. Defendant's witnesses indicate that he was talking to them on the phone between the time of 9:50 to 10:00 PM. It is the defense position that it is impossible for defendant to commit the murder in a 45-minute time frame.

"Defense counsel argued that the police did not trace Gorsline's route to test whether he was telling the truth. The trial court denied the admission of this evidence as being irrelevant and unreliable.

"Real evidence can be used to show that a person or object behaves in a certain way, and experiments are permitted in court for this purpose provided the conditions under which they are performed are identical or substantially the same as those that existed at the time of the event to which they relate."

The police were no more interested in scrutinizing Gorsline's story than Czajka was. Yet again, Czajka does virtually all he can to hinder the defense, and help the prosecution.

VanDover v. Czajka, 714 N.Y.S.2d 793 (2000)

This is a Sexual Offense Registration Act ('SORA') case, whereby a sex offender getting out of prison is assigned a 'risk level' ranging from1 (low) to 3 (high). Here, Czajka's assessment of risk was annulled by the Third Department.

[794] "In 1996, petitioner was convicted upon his plea of guilty to the crimes of sexual abuse in the first degree, sexual abuse in the second degree (four counts), sodomy in the second degree and promoting a sexual performance by a child. The abuse of the young child, which occurred over a period of several years, included acts of sexually deviant intercourse, fondling the victim's breasts, buttocks and vagina while she slept, and photographing her nude. Petitioner was sentenced to a prison term of 1-1/2 to 4-1/2 years and released on parole at the age of 79.

"In preparation for his release, petitioner was evaluated by the Board of Examiners of Sex Offenders in order to determine his risk level for recommitting a sexual offense...While petitioner's point total as reflected in the assessment instrument presumptively placed him in the classification of a level two sex offender (moderate risk), the Board recommended that he be designated a level one sex offender (low risk) due to his advanced age, early acceptance of responsibility for his actions and willingness to seek treatment. The Board gave weight to letters written on petitioner's behalf by his adult daughters attesting to his character and indicating that he had not subjected them to sexual contact. Following a hearing, respondent [Czajka] classified petitioner as [795] a level three sex offender (high risk)...

"[T]he risk level assessment [by a court] must be supported by clear and convincing evidence in the record...Petitioner scored a total of 100 points on the assessment instrument, presumptively placing him within level two (moderate risk). Respondent [Czajka] determined that he should be categorized a violent sexual predator and placed in risk level three because he did not fully accept responsibility for his actions, blaming his conduct on his medical problem, sexual performance problems, marital difficulties and stress. The record, however, does not contain clear and convincing evidence in that regard. To the contrary, Richard Hamill, a psychologist who evaluated petitioner, opines that he possessed a high degree of guilt and remorse, was honest and open with the details of his sexual offenses and did not exhibit a predatory pattern, rendering him a minimal risk of reoffending. Karen Albertuzzi, a family therapist, similarly noted that petitioner expressed deep regrets concerning the events leading to his imprisonment. In addition, the presentence report disclosed that petitioner accepted responsibility for his actions and was repulsed by his own behavior. Furthermore, the record reveals that petitioner participated in various treatment programs while in prison and was receptive to counseling. In light of the foregoing, respondent's [Czajka's] determination classifying petitioner as a level three sex offender is annulled and he is reclassified as a level two sex offender."

Again, we see Czajka (severely) twisting the actual facts, in order to justify his impulse to condemn and punish as severely as possible.

People v. Call, 731 N.Y.S.2d 557 (2001)

In this jury trial conviction for burglary, which was affirmed by the Third Department, Czajka had sentenced the defendant to the maximum.

from Appellant's Brief :

"The theory of the defense was that Dorothy Call, appellant's estranged wife, with whom he had two minor children, conspired with her mother, Dorothy Houle, to frame appellant. The theory advanced that appellant intended to leave his wife...The theory alleged that by artifice his wife gave him the key to his mother's office and requested that he retrieve the sum of $70.00 therefrom that her mother had authorized her to receive...It was Appellant's contention that his wife had been for some time pilfering money from her mother on a regular basis to support her drug habit."

"While the law afforded the court considerable latitude in fashioning an appropriate sentence for defendant, the Court nevertheless opted to impose the maximum sentence authorized by law: namely: fifteen years determinate. It is submitted that the sentence imposed is extremely excessive and patently disproportionate to Appellant's conduct. It must be remembered that Appellant was convicted of the unarmed, daytime burglary of the office section of his estranged, erstwhile mother-in-law's home and pilfering therefrom the paltry son of $70.00 under circumstances in which he could have stolen a much greater amount." [There is alleged to have been approximately $1,000 there.]

"As appears from a review of the Pre-Sentence Report, nothing is remarkable or unusually egregious about the subject offense; nor is Appellant portrayed as a particularly nefarious individual. Rather, the Report identifies the etiology of Appellant's behavior, namely his long-term drug abuse problem. It is also significant to note that other than recommending that a sentence of incarceration be imposed, which, in any event was mandatory, the Probation Department made no specific sentencing recommendation. Of further significance is the fact that at sentencing, the Court [Czajka] labelled Appellant a career violent offender. That assertion is belied by the Pre-Sentence Report. In fact, the Report discloses that Appellant has only one prior misdemeanor (Attempted Trespass in the 3rd Degree), and one prior felony conviction (Assault in the 2nd Degree) committed at age 20 and 22, respectively." [Emphases added. Call alleges that the latter assault conviction was the result of having been beaten himself by the police with clubs, which was so severe that his bruises were still visible after six months.]

So, whatever the Pre-Sentence Report says, Czajka is extremely likely to impose the (at least near-) maximum.

People v. Lockenwitz, 731 N.Y.S.2d 674 (2001)

This is an appeal of a plea in a drugs case. The Third Department reduced the sentence from 27-life to 15-Iife, due to the fact that it was so extreme, as well as Czajka's unsupported allegation that this defendant could not be rehabilitated. Judge Karen Peters joined this opinion, but did not write it.

[675] "First, we note that County Court [Czajka], in imposing this extremely severe sentence, relied, in large part, upon the conclusion that there was no likelihood that defendant could be rehabilitated. We find absolutely no record evidence to support such a conclusion. Accordingly, considering defendant's age, the absence of any prior convictions involving the sale or possession of drugs or any prior violent felony convictions, the absence of violence and defendant's acknowledgement of responsibility for his criminal conduct, we are persuaded that the sentence should be modified by reducing the aggregate prison term to 15 years to life." [Emphasis added. Therefore, the minimum sentence he would have to serve was reduced more than 44%.]

Czajka had also claimed that Nickel could not be 'rehabilitated.'

People v. Mitchell, 734 N.Y.S.2d 252 (2001)

A jury had convicted this defendant of reckless endangerment, for 'leading' the police on a high-speed car chase.

from Appellant's Brief:

Mitchell himself, speaking at his sentencing:

"[T]hroughout this whole course of this, and I admit it was a foolish act, I regret putting sheriff's deputies on the police chase...I was encountering several withdrawal symptoms which was encountered [accompanied?] by a lot of depression. This coupled with a relationship that was faltering with my long-term paramour...a lot of things on my mind. It was improper judgment. I know it's the position of the D.A. to enlighten the Court to shed a bad light on me, that I'm this heinous person who has no concern for anyone else. This is wrong. I know the actions that I committed would not seem as a normal law-abiding citizen, but again I do have remorse for this and I did explain this to the pre-sentence reporter...I am sincerely sorry for what happened. I damaged my relationships with my family, I damaged my relationship with my long-term paramour...which is now ceased. All I can say is that I made a bad decision and I wish I never did it. Thank you."

Czajka: "You wish you never did it because you got caught."

Mitchell: "No, sir."

Czajka: "This is not a discussion. Have you completed your remarks?"

Mitchell: "No, sir, I haven't."

Czajka: "All right, go ahead. I was under the impression that you had completed your remarks. Go ahead."

Mitchell: "No, sir. Then in fact I don't look at remorse as an issue that would be claimed because I got caught that I show remorse. I look at the issue as that my acts I committed when I wasn't really in my right mind, and it took eight months of me being incarcerated to really evaluate my problem and start looking in deeper than just the issue of what I was charged with. I mean, when you're caught people start to say to themselves, 'Well, pity me.' I didn't look at myself that way. I looked at myself as what a stupid asshole I was attempting this knowing that there was other ways to have these situations corrected. I don't look at it that I'm caught, I'm looking at it that I made a foolish choice...There was a way that things could have been changed. If I would have to go to my SPARC program to have my problem assessed with drug abuse, we wouldn't be sitting here. A lot of bad decisions were made and I regret every one of them...I'm just figuring out now finally that there is something wrong here where I have a mental problem as a form of depression and that since encountering this it's been causing me to relapse. This thing with cocaine has a tendency to cause you to come out of a depression, but the stupidest part is that once you come down from the high the depression is going to re-emerge again and you're going to crash into a more severe depression. All I'm asking today is that you be just with this. I mean, you've heard the evidence during this trial, you've seen recanting of testimony by officers because they'll make one statement at a Grand Jury, they'll make another statement here and to re-correct themselves, and we've seen it. I know the jury didn't really listen too well during this trial. I'm sure you did, and I'm going to give you the full benefit of that. I've tried to be a gentleman through the trial even though the situations I had encountered. I didn't agree with my name being slandered throughout the news press. I don't know who gave them the information but throughout the news press I'm being labeled as a career criminal, and my record, a lot of it's been dismissed and sealed and that was in favor of the accused, and those acts don't happen to people who are always guilty of everything they're charged with. The things I was guilty of in life I always admitted to and I admitted to them promptly, like the burglary in '91 and '92. The burglary involved back then when I was involved in drug abuse when you [Czajka were a prosecuting attorney at the time...A prison sentence isn't the answer to many of the problems in society, but for some reason in Columbia County it's the only thing I've seen. All I'm asking is that you be fair with your sentencing. That's all I have to say."

Czajka: "Mr. Mitchell, I heard you blame police officers, the jury, your girlfriend, the drugs, the press, the prosecutor to name a few. The only one you haven't named is yourself, and you are in fact responsible for your actions. And you do, in fact, have a mental problem. Your mental problem is that you are a career criminal and you belong behind bars for as long as I can put you there to keep the community safe from you. In fact, your high degree of intelligence makes you all the more dangerous... Your actions...indicate to this Court and any reasonable person that you are such a danger that the Board of Parole should not make the mistake it did earlier in paroling you when it did twice, and in fact with respect to the second count [Assault in the Second Degree, which was dismissed] I invite the People to appeal the trial order of dismissal such that this Court can give you the sentence you really deserve."

Czajka then sentenced him to an aggregate of 14-28 years, which was the absolute maximum on every charge, imposed consecutively on every charge which he had the discretion to impose. Also note how Czajka was advising the prosecution on what should be their next step -- something he also did in Nickel's trial. (See photography expert section.) The fact is, although Czajka was first a prosecutor, then 'judge' for a while, and then back to being a prosecutor again, in reality, he never stopped being a prosecutor. Thus, for virtually all of the trials (and even plea bargains) he presided over, there were, de facto, two prosecutors (one masquerading as a judge), against one defense attorney (and defendant).

People v. Lynch, 738 N.Y.S.2d 116 (2002)

Although this plea 'deal' for possession of child pornography was affirmed, Czajka's illegally imposed consecutive sentences were modified to run concurrently.

[117] "Defendant...was sentenced to consecutive prison terms of 1-1/3 to 4 years for his conviction of counts 1 through 30, 1-1/3 to 4 years for his conviction on counts 31 through 99 and 1-1/3 to 4 years for his conviction on counts 100 through 131...resulting in an aggregate prison sentence of 4 to 12 years."

"Here, in order to justify County Court's imposition of three consecutive sentences, it must appear that the materials referred to in counts 1 through 30, counts 31 through 99 and counts 100 through 131 came into defendant's possession at separate and distinct times...We find no record evidence for such a finding and, accordingly, imposition of consecutive sentences was improper."

So, Czajka's aggregate sentence was three times that allowed by law. Thus, Lynch's sentence was reduced by 67%.

People v. Baker, 742 N.Y.S.2d 391 (2002)

This DWI jury trial conviction was affirmed.

from Appellant's Brief:

"Judge Czajka said: 'I like to think I don't punish anyone for going to trial, and I don't think -- well I don't think[,] I know -- that that is not appropriate.'

"Appellant told Judge Czajka that he was well aware that it is wrong to drink and drive, saying: 'I...know it's wrong to drink and drive...' Judge Czajka sentenced appellant to concurrent terms of one and one-third to four years, and a fine of $2,500.00. He cited appellant's criminal history, appellant's perceived lack of remorse, and appellant's shifting blame for his criminal conduct onto the New York State Troopers. '[N]otwithstanding your admission that you were, indeed, drinking...you blame the Troopers for your criminal conduct. No reasonable person sincerely remorseful for his conduct would do so.' Judge Czajka concluded that: '[Y]our criminal conduct is likely to continue...'

"At trial, appellant attempted to raise the defense of entrapment, a theory that necessarily shifts responsibility for the crime. Appellant in fact stated that he knew that driving while intoxicated is a misdeed...However, Judge Czajka characterized appellant's attempted use of a proper legal defense at trial as shifting blame. He told appellant: ['Notwithstanding...', from above]...Appellant should not be penalized because of his good faith assertion of the defense of entrapment at the advice of his attorney.

"[Moreover], nothing was before the Court to establish that rehabilitation was not likely. In fact, the Presentence Report indicates that appellant has a good potential for rehabilitation. According to the Presentence Report appellant's 'potential for lawful behavior may improve with alcohol abuse treatment and mental health, coupled with the revocation of his driver's license.'...The Presentence Report recommended a local term of incarceration followed by probation...The Court had no objective basis for concluding that rehabilitation was impossible without a term of incarceration in a state correctional facility." [Emphasis added.]

So, by this point it is apparent that Czajka regarded virtually every defendant who came before him as being 'incapable of rehabilitation.'

"The instant sentence does not reflect the circumstances of appellant's offense. The trial court [Czajka] discounted entirely the fact that appellant's commission of the offense was directly caused by the police officer's ordering him to leave the premises. The County Court only considered those facts to appellant's detriment, indicating that it believed that the facts of this case point to inappropriate attempts to shift the blame from appellant to the New York State Police. That appellant drove while intoxicated at the direction of a state police officer is a mitigating circumstance, not an aggravating one..." [Emphases added.]

Citing from the trial transcript; cross-examination of cop who told him to leave the residence, due to the domestic dispute he was having at the time:

Czajka: "You told him to leave?"

Collier: "Yes."

Czajka: "Where was this residence?"

Collier: "Around the corner from the traffic stop."

Czajka: "Was it near a bus stop, train station?"

Collier: "No."

Czajka: "How did you expect him to leave?"

Collier: "By driving."

This was the same police officer who then pulled him over for a DWI five minutes later.

Again citing trial transcript:

Greenberg (def. art.): "Okay. At this point I would

Czajka (16 of 27 )

light of the fact that the court had chosen unilaterally and arbitrarily to charge CPL §20.60." [Emphasis added.]

"It is undisputed that defense counsel asked for a reasonable time to prepare and the Court denied defense counsel's request, offering defense counsel only 15 minutes to prepare for a new summation that would be offered to the jury after three hours of deliberation."

After the jury had deliberated for 3 hours, it sent Czajka a note regarding the issue of "location of sale." This is what apparently prompted Czajka to give the (unrequested) CPL §20.60 charge.

"It is the adamant position of this Defendant that when the Court, after 3 hours of jury deliberations, decided on its own motion over the objection of the defense counsel, to charge the jury a new statute which had never been previously requested nor charged, that this absolutely violated certain constitutional rights of this Defendant.

"The law is very, very clear that both counsel must know all of the charges to be submitted to the jury before summations.

"It is the position of this Defendant that the Court initially and most arbitrarily during the plea bargaining conference, advised the defendant as follows:

'It is my firm and adamant position that if you want to enter a plea of guilty in this case, you must enter a plea to the top count with no promises of punishment. I will review the pre-sentence report and then I will impose the sentence.'

"It is the position of the Defendant that the Court literally abolished the plea bargaining process which heretofore was established as a vital part of our criminal justice system. At the outset, the Court laid down its own ground rules regarding plea bargaining; in that, the Court stated that there must be an entry of a plea to the top count of the indictment and the Court would determine the sentence. This is absolutely unfair, prejudicial and improper." [Emphasis original.]

"It is undisputed that the People have the power to specify terms and conditions under which they will consent to a guilty plea to a charge and it is undisputed that the Court may impose reasonable conditions on a guilty plea particularly when that plea is to no less than the entire indictment; yet, what is improper and unconstitutional is the Court's position that it will not accept any plea unless it is to the top count and will not consider sentencing recommendations from either the prosecution or the defense but will leave same to itself."

Once more, the 'judge' veil has noticeably slipped, revealing Czajka's continued de facto functioning as a prosecutor.

"In the case at bar, the Defendant was effectively denied his right to plea bargain this case and as a direct result thereof, was caused to go to trial...which trial was initially permeated with errors from the Court which directly affected his right to a fair and impartial trial."

At least three different times, Czajka responded to a point/question by defense counsel in this case with, "Whatever".

In re Jemila PP , 785 N.Y.S.2d 185 (2004)

Here, Czajka's 'finding' that sex offender's daughter had been 'neglected' because he failed to complete sex offender program within 1 year, and because of his failure to admit the sexual abuse against his daughter, was reversed.

[186] "Petitioner's inaction or mistake does not permit it or the court to punish respondent for not doing something which was not specifically mandated by the prior orders. Respondent's failure to complete sex offender treatment for one year did not constitute neglect...In effect, the court's determination amounted to a finding of neglect based on the same facts as the original finding of abuse."

People v. Gudz, 793 N.Y.S.2d 556 (2005)

This jury trial conviction in a kidnapping case was reversed due to Czajka's error re: jury charge (instruction).

[557] "[A] witness observed defendant slowly drive his car across the center line of a road and strike a female bicyclist stopped alongside the road. The witness further observed defendant pull the struggling victim toward his vehicle. As the witness and other bystanders moved to intervene, the victim wriggled free and, after exchanging words with those seeking to intervene, defendant fled the scene. Defendant was subsequently arrested and charged with arrempted kidnapping in the second degree.

"At his trial, defendant testified that the aforementioned events were the result of mistaken identity. In sum, defendant claimed that, after meeting an individual named 'Judith' on the Internet, the two arranged to have defendant simulate an 'abduction' of Judith and thereafter engage in sexual role-playing activities together. According to defendant, he and Judith planned this mock abduction for a number of months and the preparation included defendant scouting the location of the event in Livingston, observing Judith while she rode her bicycle...in the neighboring countryside, and Judith executing a 'consent form' in which she agreed to her own capture. Numerous electronic communications [558] between defendant and Judith were introduced into evidence at trial in support of defendant's case...[O]n the day he encountered the victim, he believed that she was Judith due to her physical appearance and the model of her bicycle.

[559] "County Court...imposed a two-step analytical framework for the jury to follow. In order to find the defense applicable, the jury was first required to conclude that defendant's mistake was, in fact, subjectively and honestly believed in the mind of the defendant. The jury was then instructed to make a second, objective determination as to whether such belief was reasonable under the circumstances. Because imposition of this second requirement does not comport with the plain wording of the defense as codified, we find it to be error and, accordingly, reverse defendant's conviction move for a trial order of dismissal on the People's case. I think what the proof has indicated is that Mr. Baker was at home in the Town of Caanan. He was directed by Trooper Collier to leave the residence. Trooper Collier observed him, had a conversation with him, and directed him to leave the place, expected that he would drive away, aparrently gave immediate pursuit to him afterward and pulled him over for DWI. I think it is a classic case of entrapment. I would further argue that the proof adduced in relation to Mr. Baker's alleged intoxication under Counts 1 and 2 of the indictment is inadequate to support a conviction in this matter."

Czajka: "Mr. Costanzo [the prosecutor]?"

Costanzo: "Judge, the People oppose that motion."

Czajka: "Motion Denied."

Note that, in order to 'convince' Czajka, the prosecutor did not need to make any legal or factual arguments at all; Czajka just reflexively sided with him, as was his wont.

Back to the brief itself:

"Further, the Court unfairly penalized appellant for going to trial, giving appellant the maximum sentence after conviction. Prior to trial, the prosecutor offered to recommend a sentence of probation and the Court agreed to take that recommendation into consideration should appellant have agreed to plead guilty. The gross disparity between the sentence offered as part of the plea and the one handed down after trial can only reveal that the Court retaliated against appellant for having his day in court, which, by the Court's own admission, is unjust."

Czajka did precisely the same thing to Nickel. Contrast the plea 'deal' of 12 years offered to the latter with the 54-year (maximum possible) sentence Czajka gave him following trial.

Note that Judge Karen Peters joined in affirming this conviction.

This case is in close competition with that of Rubin (see above) for the most grotesque 'Kangaroo Court' Czajka ever presided over.

People v. Mosley, 744 N.Y.S.2d 577 (2002)

This jury-trial conviction for drugs offenses was reversed due to improper bolstering. Of course, Czajka had sentenced this defendant to the maximum. Judge Karen Peters joined in this reversal, but did not actually write the decision.

[578] "The identification of defendant was the crucial issue at his trial, which stemmed from alleged sales of crack cocaine to two undercover police officers...Part of the People's direct proof included the testimony of Deputy Sheriff Wendy Gunthert that she purchased cocaine from defendant and that five days after the undercover transaction, she identified defendant in a photo array. Another undercover officer, State Police Investigator Robert Missenis, who purportedly purchased cocaine from defendant about 2-1/2 months before defendant's arrest in December 1999, testified in the People's direct case that, within 30 minutes of the transaction, he identified defendant from a single photgraph shown to him by another police officer. Defendant elected to testify at trial, denying involvement in the transactions with Gunther and Missenis. He also presented alibi evidence via the testimony of his girlfriend.

[579] "It is well settled that the prosecution may not present testimony regarding a pretrial out-of-court photographic identification of a defendant because such evidence improperly bolsters the witness's testimony...

"Our analysis of the evidence leads us to conclude that the cumulative impact of permitting two police officers -- who supplied the only identification evidence in a case that clearly turned on the issue that was bolstered by the People cannot be regarded as harmless error, particularly with the added factors that defendant presented [580] alibi evidence and was not arrested close in time to the alleged commission of these crimes..."

from Appellant's Brief:

"In [Czajka's (judge's)] Chambers, prior to summations, defense counsel requested a missing witness charge [jury instruction] as to both confidential informants...They were present during the alleged buys and this would have provided independent testimony of identity, the only issue in this case. The prosecution did not indicate that they were not available.

"The main issue [with the undercover agent being shown the photo array, and being asked who sold her the cocaine] was that Mosley was the only older black male in the array...The Court [Czajka] denied suppression." [That is, this 'identification' would be accepted into evidence.]

"As a first step, I must state parenthetically, that this is one of the few cases where the appellant has continued to protest his innocence after conviction and discussing this matter with the writer as his appellate counsel. Almost always, communications from clients deal with a violation of a constitutional right, or conflicting testimony on some technical argument, without a claim of innocence. This [defendant] has claimed his innocence in every letter I have received as well as during a personal visit at the prison."

There were two alleged cocaine buys. Deputy Wendy Gunthert was the undercover officer on the first one.

"Gunthert's testimony was replete with improbabilities that would not necessarily be picked up by the jury. She testified that she was equipped with a body transmitter...and that it was tested and working...Senior Investigator Kane testified that just prior to Gunthert [being] sent out to make buys, her transmitter and all the equipment was working and she was so equipped...Nevertheless, Kane testified he did not hear the transaction take place and never turned on the tape machine to record the buy because he did not hear a transaction take place...Kane also testified that Gary Jones, the confidential informant, was with Gunthert during the alleged purchase...

"Gunthert also testified that she did not signal that the buy was 'going down' [even though] it was part of the instructions to signal the buy...Investigator Kane testified that Gunthert told him that the buy happened too fast for her to signal it on the transmitter...However, Gunthert also testified that informant Jones had called the seller to come across the street to their side and that she allegedly saw the Defendant coming from halfway up the block while she was still at the intersection...Yet, she claims to have had no time to turn the transmitter on.

"The Deputy also did the equivalent of committing perjury. She was asked on direct examination, 'What, if anything, happened at or about 6:45 PM on August 12, 1999?"...[S]he proceeded to describe how she allegedly met the Defendant, conveniently leaving out the fact that Jones had allegedly called the seller over -- part of the res gestae [transaction]...and that Jones was with her from the time they left the station...On cross-examination, she admitted that Jones was present but claimed that she didn't mention him because she tried to keep it a secret...Gunthert and Jones would have been the only ones to see the alleged buy because Investigator Kane said he neither saw nor heard the buy...

"On direct, Gunthert testified that she was trained in identification and that she was looking at the seller at arms length and she was doing what she was trained to do, observing features that would stand out for later identification. Yet, when asked by the prosecutor 'What did you observe about the defendant's appearance?,' all she could come up with is that he was an older black male...

"At sentencing Mosley [the defendant]...started a lengthy statement which included a claim that he was in Albany [not Hudson] on September 14, 1999 when one of the buys was supposed to have taken place and the fact that there had been no attempt by defense counsel to get the medical records that would have proved his claim...However, he did not get to finish his statement...First his own attorney cut him off...and then the judge [Czajka] would not let him continue...

"Leon Mosley was...55 years old at the time of...sentencing. The sentence was the maximum on each count and consecutive for a total of 25-50 years in prison." [Thus, he would have been 80 years old upon his first parole eligibility, and 105 when he 'maxed out.']

"He has an extensive criminal history. But the pre-sentence probation report...indicates that he had abandoned his violent ways and Mosley testified during the trial that he only had a drug habit when arrested for these sales. At trial he also denied having sold and continues to deny that he sold drugs on August 12th or September 14th."

Czajka at sentencing: "There is no likelihood that you would be rehabilitated."

People v. Mason, 750 N.Y.S.2d 364 (2002)

This jury trial conviction for DWI and Aggravated Unlicensed Operation of a Vehicle was affirmed. Yet again, Czajka had sentenced this defendant to the maximum.

from Appellant's Brief:

Czajka at sentencing:

"Moreover, during the pendency of this prosecution, you admitted that you used cocaine, or excuse me, you admitted that you used marijuana, and that you were in possession of cocaine, you deserve the maximum and that's what you'll get." [Czajka also imposed a $5,000 surcharge]

"The only witness to put appellant behind the wheel of the car was Officer Apel. A careful review of his testimony, both direct and cross, the inconsistencies and conflicting testimony on key issues of operation from [court] proceeding to proceeding makes Apel's testimony incredible and unworthy of belief. This testimony is insufficient to establish the 'operation' element of the charges.

"First, Apel claimed that he observed the Appellant driving the motor vehicle...However, Apel never made any entry in any police report to that effect despite his duty as a police officer to do so...This was paperwork that Apel filled out within one to two hours of the arrest.

"Secondly, Apel testified that he told the other officers that the Appellant was the driver...Unfortunately for Apel, [Officer] Foster testified to the opposite. Apel never told them that the Appellant was the driver.

"Third, on cross-examination Apel admitted that he asked Denise Rubio who the driver was 'several times'...Why[,] if he already knew? The only conclusion is that Apel didn't know who the driver was.

"Fourth is Apel's testimony regarding the nine-minute cell-phone call. On direct, Apel made no reference to any call. However, on cross-examination, Apel admitted to a cell-phone call. First, he stated that he did not remember making the call...[T]hen Apel didn't remember whether he called Rubio's mother...Defense had the cell-phone bill with the 9-minute call...Apel was the only one on duty and had the cell phone...At this point there was no way to deny the call so Apel conveniently forgot. Why? Apel made the call to determine who the driver was because he did not know.

"Fifth is the seatbelt. Apel testified that he went in the car through the driver's door and unbuckled Rubio's seatbelt...On cross, Apel admits issuing Rubio a ticket for no seatbelt. His excuse is that he was mistaken. Of course he never testified to this mistake before.

"Why? Because if Rubio was belted in the passenger seat then it is more likely that he [Mason] was not the driver. The fact of the matter was Apel gave her the no seat belt ticket right after the accident at the station when it was fresh in his mind. Apel forgets later. At trial, his only explanation is that he made a mistake. He made a mistake and charged someone with an offense he now claims that she did not commit. Incredible testimony.

"Sixth is the passenger door. On direct, Apel says [that he] went into the car through the driver's door...On cross, we find what Apel left out on direct. Apel is asked, 'Do you know if the door worked or not?' Apel answered, 'I'm not sure, I never tried it.'...At the Grand Jury, though, Apel testified under oath that the door could not be opened and the door was close to the guardrail.

"Seventh, the location of Apel in relation to the motor vehicle indicates that Apel could not see the driver of the other car. The car was coming toward him with its bright lights on, three and one-half car lengths away...The car sped up and took a right turn moving away from Apel...

"Apel's testimony on the issue of operation is incredible and cannot be afforded any weight. This is the third trial. Apel needs to put the defendant behind the wheel. His story changes and becomes more and more inconsistent and self-contradicting...As a result, there is no proof that the appellant operated this motor vehicle."

Judge Karen Peters joined in affirming Mosley's convictions.

People v. Delaney, 765 N.Y.S.2d 696 (2003)

This was a jury trial conviction in a drugs case. Reversed for Czajka's failure to give the jury an agency charge (instruction).

This was actually a three-day jury trial, convened on 4/27/01, just three weeks before Nickel's.

[698] "We agree with defendant that County Court erred in denying his request to submit the agency defense to the jury. As defendant asserts, it is well settled that '"[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics"'...

[699] "[A] question of fact exists as to whether defendant was acting as an extension of the buyer or supposed buyers and, thus, the agency defense should have been charged...Accordingly, we must reverse and remit for a new trial."

from Appellant's Brief:

"In the case at hand, it is clear from the record that a 'reasonable view of the evidence' supports the finding that Defendant was acting merely as the agent of the undercover officer that asked him to obtain drugs for him, as he did not solicit the buyer, use any 'salesman-like behavior,' receive a profit at all, or use his own funds to purchase the heroin in question...In fact, the undercover officer approached him through several phone calls and used trickery and deceit to make the Defendant believe it was a favor for his brother."

This defendant's previous record had consisted of two burglary convictions, more than 15 years prior; he had no previous drug convictions. In jury deliberations, the issue of entrapment was discussed at length.

"[I]n conferring with jurors [after the trial], they advised that had the court charged [given an instruction re:] either agency or entrapment, that in all likelihood there would have been a 'hung jury' situation; in that, there were at least half of the jurors convinced that the Defendant was set up by the undercover State Trooper.

"[T]he trial court [Czajka] erred in allowing the People to cross-examine the Defendant about prior felony convictions [for burglary] in that they were extremely remote in time and irrelevant to any issues in this case." [Typically, such cross-examination is not allowed regarding offenses which occurred more than ten years prior.] "Accordingly...the Defendant's conviction must be vacated due to the undue prejudice sustained by the improper admittance at trial of two unrelated, remote and irrelevant convictions that served only to prejudice the jury against the Defendant, and to convict him based on propensity evidence alone." [Emphasis added.]

The latter is exactly what Czajka himself did in convicting Nickel. See Propensity/Who Cares?.

Back to the present (Delaney) case, a package of heroin was mailed from Brooklyn to Albany County. Therefore, it was an open question as to, assuming a crime had been committed, whether it had been committed in Albany County. If not, an acquittal by this Albany County jury would be required.

"[N]evertheless, realizing that an issue that had to be resolved by the jury concerned the definition of the 'sale,' and the prosecution realizing that location was a key and material issue that needed to be addressed by the jury if in fact they were to find the Defendant guilty, the People chose not to request the specific charge that is contained in CPL [Criminal Procedure Law] §20.60...Having realized that the People either intentionally or accidentally or even inadvertently chose not to request a charge under CPL §20.60, defense counsel molded its entire summation on the issue of location and sale, basically arguing that if in fact there was a sale, that that sale [did not occur in] Albany County, and thus, even though it was a technical argument, the jury must acquit.

"Affirmants have now confirmed by talking with various jury members that up until the court, sua sponte, and on its own initiative, decided to charge CPL §20.60, that jurors were discussing whether or not a crime had in fact occurred in Albany County. Whereupon, it is undisputed that once the court, over strenuous objection from the defense, charged §20.60, that the jury immediately returned with a guilty verdict." [Emphasis added.]

So, once again, we see 'Judge' Czajka actually acting as something of a co-prosecutor, giving 'The People' a helping hand.

"It is further basically undisputed that the Court [Czajka] acknowledged on the record that by charging §20.60, although same had never been requested by either the prosecution or defense, that the court unilaterally destroyed the Defendant's summation and the defense offered by the defense counsel in his closing comments to the jury. Accordingly, the Court then offered, to Defendant's counsel, an opportunity to 'RE-SUM-UP.' That offer was accepted by defense counsel; yet, an argument between defense counsel and the court then occurred concerning the amount of time defense counsel needed to re-draft and re-formulate closing arguments in light of the fact that the court had chosen unilaterally and arbitrarily to charge CPL §20.60." [Emphasis added.]

"It is undisputed that defense counsel asked for a reasonable time to prepare and the Court denied defense counsel's request, offering defense counsel only 15 minutes to prepare for a new summation that would be offered to the jury after three hours of deliberation."

After the jury had deliberated for 3 hours, it sent Czajka a note regarding the issue of "location of sale." This is what apparently prompted Czajka to give the (unrequested) CPL §20.60 charge.

"It is the adamant position of this Defendant that when the Court, after 3 hours of jury deliberations, decided on its own motion over the objection of the defense counsel, to charge the jury a new statute which had never been previously requested nor charged, that this absolutely violated certain constitutional rights of this Defendant.

"The law is very, very clear that both counsel must know all of the charges to be submitted to the jury before summations.

"It is the position of this Defendant that the Court initially and most arbitrarily during the plea bargaining conference, advised the defendant as follows:

'It is my firm and adamant position that if you want to enter a plea of guilty in this case, you must enter a plea to the top count with no promises of punishment. I will review the pre-sentence report and then I will impose the sentence.'

"It is the position of the Defendant that the Court literally abolished the plea bargaining process which heretofore was established as a vital part of our criminal justice system. At the outset, the Court laid down its own ground rules regarding plea bargaining; in that, the Court stated that there must be an entry of a plea to the top count of the indictment and the Court would determine the sentence. This is absolutely unfair, prejudicial and improper." [Emphasis original.]

"It is undisputed that the People have the power to specify terms and conditions under which they will consent to a guilty plea to a charge and it is undisputed that the Court may impose reasonable conditions on a guilty plea particularly when that plea is to no less than the entire indictment; yet, what is improper and unconstitutional is the Court's position that it will not accept any plea unless it is to the top count and will not consider sentencing recommendations from either the prosecution or the defense but will leave same to itself."

Once more, the 'judge' veil has noticeably slipped, revealing Czajka's continued due facto functioning as prosecutor.
"In the case at bar, the Defendant was effectively denied his right to plea bargain this case and as a direct result thereof, was caused to go to trial...which trial was initially permeated with errors from the Court which directly affected his right to a fair and impartial trial."

At least three different times, Czajka responded to a point/question by defense counsel in this case with, "Whatever".

In re Jemila PP, 785 N.Y.S.2d 185 (2004)

Here, Czajka's 'finding' that sex offender's daughter had been 'neglected' because he failed to complete sex offender program within 1 year, and because of his failure to admit the sexual abuse against his daughter, was reversed.

[186] "Petitioner's inaction or mistake does not permit it or the court to punish respondent for not doing something which was not specifically mandated by the prior orders. Respondent's failure to complete sex offender treatment for one year did not constitute neglect...In effect, the court's determination amounted to a finding of neglect based on the same facts as the original finding of abuse."

People v. Gudz, 793 N.Y.S.2d 556 (2005)

This jury trial conviction in a kidnapping case was reversed due to Czajka's error re: jury charge (instruction).

[557] "[A] witness observed defendant slowly drive his car across the center line of a road and strike a female bicyclist stopped alongside the road. The witness further observed defendant pull the struggling victim toward his vehicle. As the witness and other bystanders moved to intervene, the victim wriggled free and, after exchanging words with those seeking to intervene, defendant fled the scene. Defendant was subsequently arrested and charged with aTTempted kidnapping in the second degree.

"At his trial, defendant testified that the aforementioned events were the result of mistaken identity. In sum, defendant claimed that, after meeting an individual named 'Judith' on the Internet, the two arranged to have defendant simulate an 'abduction' of Judith and thereafter engage in sexual role-playing activities together. According to defendant, he and Judith planned this mock abduction for a number of months and the preparation included defendant scouting the location of the event in Livingston, observing Judith while she rode her bicycle...in the neighboring countryside, and Judith executing a 'consent form' in which she agreed to her own capture. Numerous electronic communications [558] between defendant and Judith were introduced into evidence at trial in support of defendant's case...[O]n the day he encountered the victim, he believed that she was Judith due to her physical appearance and the model of her bicycle.

[559] "County Court...imposed a two-step analytical framework for the jury to follow. In order to find the defense applicable, the jury was first required to conclude that defendant's mistake was, in fact, subjectively and honestly believed in the mind of the defendant. The jury was then instructed to make a second, objective determination as to whether such belief was reasonable under the circumstances. Because imposition of this second requirement does not comport with the plain wording of the defense as codified, we find it to be error and, accordingly, reverse defendant's conviction and remand for a new trial."

People v. Saunders, 796 N.Y.S.2d 446 (2005)

This bench (non-jury) drugs conviction was affirmed.

from Appellant's Brief:

"[A]pproximately two weeks prior to the alleged drug transactions, Police Officer Andrew Jackson spoke with defendant for approximately 10 minutes about working with the Columbia County Drug Task Force...as an informant. Jackson's contact with defendant arose during his arrest for aggravated unlicensed operation of a motor vehicle. Due to his apparent willingness to work with the Drug Task Force, the police released defendant with respect to the aggravated unlicensed operation charge. Jackson instructed defendant to call him once each day on weekdays and defendant made such calls and provided information to Jackson describing the identity, location and activities of drug dealers. Jackson told defendant that he should continue calling him. According to Jackson, some of the information provided by the defendant was helpful. At the pretrial hearing, Jackson explained that the police agreed to make efforts and attempt to have his impounded vehicle returned to him in exchange for defendant's cooperation.

"On the evening of June 27, 2001, the Drug Task Force was conducting undercover operations and attempting to buy crack cocaine or other narcotics from dealers. Defendant stated that during that evening...he approached and entered a gray car driven by an undercover Drug Task Force member and he encouraged another individual to approach the car to supply $30 worth of drugs to the undercover officer. Defendant maintains that he was only a middleman in the transaction...During a subsequent sale a block or two away, defendant stated he again approached the same car and undercover officer and acted as a middleman in [a] second $30 drug transaction between the undercover officer and another dealer.

"Defendant was charged in October 2001...County Court [Czajka] conducted a pretrial hearing during which the People sought to preclude defendant from asking the People's witness questions regarding whether defendant either worked with police or was a confidential informant for police at the time of the drug sales...While County Court ultimately denied the motion, the Court also indicated that if the issue were raised again at trial, the Court would likely sustain objections by the People and direct defense counsel to avoid this line of inquiry. County Court advised defendant numerous times that the Court would not permit a jury to hear his defense, based on what the Court had heard up to that point in time.

"Just before trial, County Court backtracked and indicated that it should have waited to hear defense counsel's arguments at trial...County Court again indicated that it 'did not sound likely' that defendant would be able to present his defense to the jury...Defendant thereafter requested to waive his right to a jury and instead present the case to a judge.

"Upon completion of the bench trial, County Court found defendant guilty on all counts.

"[D]efendant clearly established that he was entrapped and was acting as an agent of the police.

"In this case defendant does not deny being involved in the transactions with an individual whom he knew to be an undercover police officer. Defendant claims that he was encouraged to perform these acts by members of the Drug Task Force, thereby implicating the defenses of entrapment, agency and due process.

"In further support of defendant's theory that he was working as an informant and agent of the police, the police again failed to arrest him after either the first or second transaction was complete...Instead, it appears that defendant was later approved as 'reliable enough,' in the words of the People's witnesses, to be subsequently used as a confidential informant under a written agreement."

Czajka at pre-trial hearing, speaking to defendant:

"I'm telling you that it's not a defense to a drug sale that someone else told you to sell the drugs, even if that person was a police officer."

Saunders: "Even if it was my assignment as part of an investigation?"

Czajka: "That's correct."

Well, that's just ludicrous. The only reason why he was involved in drugs at all was because the police asked him to be, in order to make his unlicensed operation of a motor vehicle charge go away.

This case demonstrates, once again, that the 'justice' system's deep problems cannot simply be ascribed to 'a few bad apples.' It's problems are, in fact, far more systemic.

In re Natasha RR, 811 N.Y.S.2d 463 (2006)

Czajka found the child to be neglected; this ruling was reversed, due to insufficiency of evidence.

[463] "[A] hotline report that respondent was driving an automobile in his driveway with the child sitting between his legs results in an investigation during which he reportedly acknowledged having the child on his lap [464] without a seatbelt while operating a car in the driveway of the apartment complex where he resided. Petitioner brought this neglect proceeding against respondent and the child's mother...Following a brief hearing, Family Court [Czajka] found both respondent and the child's mother had neglected the child."

People v. Richardson, 813 N.Y.S.2d 581 (2006)

In this jury trial drugs conviction, which was affirmed, Czajka had sentenced the defendant to the maximum.

from Appellant's Brief:

"[D]uring the trial, [one of the jurors] was riding the courthouse elevator with several police officers when one officer, Sergeant James Bradford, remarked to her, 'Don't worry. We wouldn't have arrested him if he wasn't guilty'...The juror reported the impropriety and was excused.

"Detective Richard Jacobs acted as the lead investigator on the case, and the officer who seized all the evidence from the apartment...During the defense cross-examination of  Detective Richard Jacobs,
counsel questioned him about an alleged year-long sexual relationship between the detective's wife, Tanya Collins, and the defendant...Det. Jacobs admitted that he knew his wife had dated the defendant for about a month during junior high school...However, Detective Jacobs claimed that he did not know the dating relationship [was] sexual...During defense's case-in-chief, counsel sought to elicit testimony
that Detective Jacobs did indeed know that his wife had participated in a sexual relationship with the defendant...much more recently than junior high school and that Detective Jacobs had expressed hostility because of the affair, but the Court [Czajka] disallowed the testimony." [Emphasis added.]

"Co-defendant Victoria Reyes testified that the kitchen cabinet cocaine was hers alone, and admitted to selling cocaine...Moreover, Reyes testified that Richardson had nothing to do with her cocaine.

"Judge Czajka remarked during sentencing that Shawn Richardson had 'sold drugs,' although there was no trial evidence that Shawn Richardson had sold any drugs." [Emphases added.]

Referring to the above policeman's comment to the juror:

"[T]his misconduct constitutes a Class A misdemeanor Tampering with a Juror in the First Degree...Sergeant Bradford engaged in conduct which was criminal as well as repugnant to a sense of justice...His misconduct further revealed a desire to obtain a conviction at any cost...If [the juror in question] had not come forward, Sergeant Bradford's attempt to influence the verdict would not have been discovered. This conduct cannot be permitted by the court.

"Mere proof that a defendant lives in an apartment with another person is insufficient to establish dominion and control over drugs found in the apartment...Such proof cannot exclude the reasonable inference that the other occupant possessed the drugs without the defendant's knowledge.

"Richardson received the maximum possible sentence: an indeterminate term of imprisonment of 8-1/3 - 25 years...Shawn Richardson has consistently maintained his innocence."

People v. Hamm, 815 N.Y.S.2d 772 (2006)

This was a DWI jury conviction which was affirmed.

from Appellant's Brief:

"[At the] suppression hearing...Trooper William Mulrein testified...he was working with [Trooper] Georgeadis on May 16, 2003, patrolling the area around the Village of Valatie. Georgeadis was driving west on Main Street in Valatie...Mulrein observed a blue Dodge pickup truck was stopped, with the ignition on, facing east in [the] eastbound lane of Main Street... Georgeadis stopped the police car so that the front of the police car was just behind the rear bumper of the blue pickup. Mulrein testified that he observed appellant walking from the back of the truck towards the driver's side and the police vehicle. Before appellant got to the door of the truck, Georgeadis spoke to appellant, asking him why he was parked in the middle of the road. In response...appellant said he was dropping money off at his girlfriend's house. Mulrein did not recall Georgeadis saying anything else to appellant at that time, although he was watching appellant closely for signs of intoxication. Mulrein believed, as he sat in the car, that appellant 'showed signs of somebody that had been consuming alcoholic beverages and may in fact be impaired by alcohol.' Mulrein never told appellant to not get into the car."

The appellant's ex-girlfriend, subpoenaed by the defense to testify, said she saw appellant get out of the passenger side of the car. Though the defense admits that Hamm drove the car a very short distance to a place on the side of the road, they said he did so at the behest of Trooper Georgeadis. The defense asked Czajka to submit an entrapment charge (instruction) to the jury, but he refused. Thus, this is a lot like the above Baker case.

Re: sentencing:

"As to the possibility of rehabilitation, the Court [Czajka] merely speculated that:

'You are incapable of rehabilitation. Courts of this State have tried probation, have tried jail, have tried prison.' [Emphasis added. By this point, Czajka is sounding like a broken record.]

"The record shows that appellant successfully completed two terms of probation in 1989 and 1994. The record did not contradict appellant's contention that he was an alcoholic. Nothing appeared in the record to indicate that appellant would not respond well to a more intensive treatment...As appellant's counsel pointed out, appellant had never been in a long-term treatment facility, and that that kind of treatment may be just the thing the appellant needs.

"This offense did not cause any personal injury or property damage. It involved the moving of a truck one car length ahead to park it at the curb under the supervision of police officers...The appellant's commission of the offense was directly related to the police officer's ordering him to move his vehicle."

Several earnest, heartfelt letters were submitted on Hamm's behalf which -- as was also true in Nickel's case -- Czajka simply ignored.

People v. Garcia, 822 N.Y.S.2d 322 (2006)

Following this jury trial drugs conviction, the Third Department ordered Czajka to hold a hearing on a defense motion for a new trial.

from Appellant's Brief:

The prosecution wanted to introduce unsubstantiated evidence that Garcia had some drugs in a rented storage unit. This had nothing to do with the crimes charged. Pre-trial, Czajka ruled that such evidence could not be introduced. But when a prosecution witness brought it up anyway, the defense moved for a mistrial.

"The prosecutor, as prosecutors will do under such circumstances, claimed disingenuous surprise that his witness, who he so carefully instructed, would stray into such a prejudicial area. The prosecutor did volunteer that a curative instruction would be just the ticket to eliminate any prejudice suffered by the appellant. And, surely enough, the court [Czajka] elected to deny the defense's motion for a mistrial, advising the jury that it should disregard 'the last portion of Investigator Missenis' answer.'

Despite the harm done by the prosecution witness' 'inadvertent' testimony regarding the appellant's stored contraband (which, curiously, was not specifically mentioned by the court in its vague curative instruction), and the painful lack of relevance of a storage facility removed from, and not involved in, the crime for which the appellant was being prosecuted, the prosecutor and his witness were not ready to leave the appellant's storage facility. The prosecution witness continued testifying that he had observed the appellant entering a storage unit and after the appellant exited the storage space, the investigator radioed his undercover team to advise that the subject was on his way to the pre-arranged buy site one-quarter mile away."

In the motion for a new trial, the appellant made a strong case that he had been denied the right to a speedy trial.

"The trial court denied the appellant's...motion [for a new trial] in a painfully brief decision. The court did not dismiss the motion based on an analysis of the appellant's factual arguments and/or the law governing the issues presented by the appellant. Rather, the court sidestepped the merits of the appellant's argument, dismissing the motion on a procedural technicality."

Here, Czajka had found, before trial, that the issue of whether Garcia had waived his right to a speedy trial was "not a matter of record"; but, after trial, Czajka "denied the...motion because "sufficient facts [do] appear on the record to permit adequate [appellate court] review..." [Emphases added.]

Czajka sentenced Garcia to very close to the maximum, even though the latter had no prior felonies.

"Finally, when called upon to impose sentence, the court took in the prosecution's unsubstantiated, unverified claims that, in addition to the appellant's convictions following trial, the appellant 'has three more uncharged sales involving the same quantities' and that 'handguns were seized from the facilities which the (appellant) was renting.' Proceeding from those unamplified claims which were in no way part of the trial proof, the prosecution hypothesized that the appellant was not a 'low-life, non-violent' drug dealer. The court did not discount or disavow the prosecution's comment and surmise. Indeed, the court appeared to adopt those comments as it concluded that the appellant would be 'likely to re-offend,' despite the fact that the underlying convictions were without precedent in the appellant's past. Furthermore, the trial judge concluded that, insofar as the appellant was concerned, 'I see no possibility of rehabilitation.'" [Emphases added.]

Czajka saw 'no possibility of rehabilitation' in virtually every defendant who came before him. Also note how, once again, functioning as a de facto arm of the prosecution, Czajka took the latter's word as gospel truth.

"Interestingly enough, in People v. Lockenwitz [see case above ]...this Court was called upon to evaluate the propriety of a sentence imposed by the same trial judge [Czajka]...following a defendant's conviction of multiple counts of criminal sale of a controlled substance in the third degree, the same crimes of conviction in the appellant's case (although the appellant was convicted of far fewer counts). Ironically, in imposing sentence there, Judge Czajka concluded, according to this Court's [Third Dept.] decision, that 'there was no likelihood that defendant could be rehabilitated.'...Upon reviewing the sentences imposed in that case, and evaluating Judge Czajka's conclusion, this Court [Third Dept.] wrote that:

'We find absolutely no record evidence to support such a conclusion. Accordingly, considering defendant's age, the absence of any prior felony convictions, [and] the absence of violence...we are persuaded that the sentence should be modified.'

"A similar result should pertain in this case. The Court and this counsel would have to be extremely gullible to believe that this trial court judge's [ Czajka's] finding of hopeless rehabilitation prospects in these two cases represent the only times that such conclusion has been drawn. More accurately, it would seem that the drawing of such a conclusion is part of a well-worn 'act' which is intended to prejudice convicted defendants seeking redress in this [3rd Dept.] Court." [Emphases added.]

People v. Nealon, 827 N.Y.S.2d 359 (2007)

Although this jury trial drugs conviction was affirmed by the Third Dept., it did reduce the Czajka-imposed sentence.

[360] "Defendant was convicted, following a jury trial, of criminal sale of a controlled substance in the third degree...[362] We are...persuaded by defendant's contention that the second felony offender sentence imposed by County Court, 10 to 20 years in prison, is unduly harsh and excessive. Notably, defendant's predicate was a nonviolent E felony [the lowest degree of felony] unrelated to drug selling and he suffers from mitigating psychological disorders, physical disabilities, a seizure disorder and substance abuse. While acknowledging that defendant has an extensive nonviolent criminal history, in our view the interests of justice would best be served by modifying defendant's prison sentence to 6 to 12 years."

Therefore, the Czajka-imposed sentence was reduced by 40%. Judge Karen Peters concurred.)

from Appellant's Brief:

"The trial Court committed prejudicial error in addressing and treating so-called Molineux [prior bad act] proof proffered by the prosecution.

When it became clear that the defense in the appellant's case intended to request that the court charge an agency defense [meaning, a claim he was just a go between in the drug-sale], the prosecution asked the Court to allow it [the prior bad act evidence]...The Trial Court's lackadaisical response to the prosecution's initial request to offer Molineux-type testimony against the Appellant, and its ham-handed attempts to back away from its original ruling, constitute reversible error...

"Defense counsel objected to the proposed questioning...However, without pressing the prosecution for details or specifics as to the source or reason for its perception as to how its witness would respond [as to whether she knew the Defendant, and whether they had sold drugs together], the Court elected to allow the proposed line of questioning...The Court reasoned that since the defense raised the defense of agency, the prosecution could attempt the defense by means of Molineux proof and '...having considered the proof that they propose and weighing the probative value, given the agency defense, against the danger for unfair prejudice, the Court finds and determines that the proof is, in fact, admissible.'

"When the prosecution was finally given the opportunity to question Hull [the above drug dealer] on direct examination, it was clear that the defense's concerns regarding the prosecution's bad faith basis for eliciting Molineux testimony from Hull was well-founded. The prosecution asked a few brief questions that had nothing to do with Appellant's past involvement in selling illegal narcotics, to wit:

Q. "How did you know (the Appellant) before that evening?
A. I knew (the Appellant) because he had made business with me...prior to that evening.
Q. What do you mean by 'had business with you'?
A. He bought crack cocaine from me prior to that evening.
Q. For himself?
A. For himself." [Emphasis added. So, he was not selling...]

"[A]t the very least, one could assume that in conducting its inquiry the Court should have some idea of the facts of the 'other crimes' evidence proposed by the prosecution. Here...the prosecutor's offer of proof consisted of a couple of vague questions that he intended to pose to his witness, together with the prosecutor's surmise as to how these questions might be answered...On this record, there is no way in which the Court could have drawn any sort of meaningful conclusion as to the relevancy, materiality, probative value or utility of the prosecution's Molineux proof. Yet the Court [Czajka] gave the prosecution a free pass, essentially conducting no inquiry at all." [Emphasis added.]

Well, when you're effectively acting as an arm of the prosecution, why wouldn't you give it a free pass?

"Even more, though, the Court acknowledged its error as it was in the process of charging the jury [giving it deliberation-related instructions] on the appellant's requested agency defense...In delivering its charge, the Court advised the jury that it had 'allowed the People to introduce evidence on another occasion that Defendant had engaged in conduct with [the drug dealer] in which he purchased cocaine from her' [thus reminding them of this unfairly prejudicial testimony]...Immediately upon making the statement, the Court interrupted itself, calling counsel forward for a sidebar conference. Experiencing a revelation, the Court purged itself, noting that: '. . .I don't know whether. . .this proof is even relevant for any purpose. . .The prior purchase is not remotely relevant. And of course, if the Court had conducted prior inquiry in the first place, the Appellant's 'not remotely relevant' purchase of narcotics...would never have been raised before the jury. In resolving this dilemma, the Court simply elected to offer a curative instruction [to the jury]...And this instruction came after the trial Court interrupted the prosecutor's summation to the jury, stating that '. . .it was my recollection that the witness. . .testified that (the appellant) purchased from her in the past. . .' [Emphasis added.]

Czajka was, then, reminding the jury of this yet again, while ostensibly trying to 'cure' the prejudicial effect of allowing this very testimony in the first place.

We may now discern a very clear pattern to Czajka's behavior as a 'judge.' As previously noted, his 'instinct' or 'reflex' is to aid the prosecution whenever he can. But he doesn't want to go so far that a conviction will be reversed on appeal. (Actual evenhandedness; i.e., fairness to the defense, does not appear to figure in at all here.) So he backpedals. But by then, it's far too late – the damage has been done. (And, as here, this 'backpedaling' may very well end up making things even more unfair to the defense.)

"[I]n making a sentencing recommendation to the trial Court, the...Probation Department suggested that the Appellant be punished 'by a minimum to moderate period of indeterminate incarceration'...Factoring heavily into Probation's sentencing recommendation was the Appellant's history of physical injuries, which compelled the Appellant to turn to alcohol/substance abuse as a result of depression...Most significantly, in 1993, the Appellant '. . .had been involved in a serious motorcycle accident, sustained severe head trauma, and was in a coma for some time followed by a lengthy rehabilitation. . .'

"In addition to his physical injuries, the Appellant's depression was exacerbated by a construction accident in which he witnessed the death of a fellow worker, and the recent deaths of his mother and a brother within a year's time of each other.

"The Appellant is not a person without worth or value. In better times he was able to work as a skilled welder, and in all times he has the support of a large family concerned about his problems and welfare.

"At sentencing, the trial Court did not appear particularly interested in weighing the facts of the charged crime or evaluating the Appellant's own personal situation in crafting a just sentence. Rather, in short order, the Court imposed a 10-to-20 year term of imprisonment... disregarding the significant factors presented by the probation department in mitigation of an unduly harsh sentence.

"As previously noted, the Appellant has serious mental health diagnoses and demonstrable problems with alcohol abuse. Such concerns should be factored into a Court's sentencing decision and weigh against an unduly harsh sentence."

People v.Clark, 835 N.Y.S.2d 509 (2007)

The sentence imposed following this plea, related to weapons and stolen property charges, was vacated due to Czajka improperly taking into account this defendant's alleged pointing of a gun at a cop. Judge Karen Peters authored this decision.

[509] "Although the People and defendant agreed to a joint recommendation that defendant be sentenced to eight years in prison, County Court sentenced him to an aggregate prison term of 12 years. Defendant now appeals, arguing that his sentence was improperly exacerbated based upon a factual misstatement made by County Court during sentencing.

[510] "County Court [Czajka]...in imposing sentence, indicated that it was taking into account the circumstances in which the offenses occurred, including defendant's pointing of a loaded weapon at a police officer. While a police officer had described such conduct, defendant disavowed it upon his plea. Thus, this matter must be remitted for resentencing." [Emphasis original.]

from Appellant's Brief:

"Here, Appellant agreed to plead guilty to each and every crime charged by the indictment, in reliance upon the sentence agreed to by the People of eight years in prison. County Court [Czajka], however, on account of its misunderstanding of the facts of the case, unilaterally decided to increase Appellant's sentence by 50% and thereby raised his sentence to just three years below the maximum sentence allowed by law [i.e., if he'd gone to trial]."

A plea is supposed to be a lot less time than one might get if one went to trial.

Czajka at sentencing: "[I]t appears highly unlikely or virtually impossible that you can be rehabilitated... [Emphases added.]

Aside from Czajka's 'broken record' on all?) defendants' supposed inability to be rehabilitated, note that virtually all of his factual or legal errors are to a defendant's detriment. But again, if you're acting as a de facto second prosecutor, this is not surprising at all.

People v. Cruz, 837 N.Y.S.2d 676 (2007)

In this child-sex-abuse jury trial conviction, the Czajka-imposed maximum possible sentence of 100 years was reduced to 28.

[768] "[This case involved] sexual contact with the 10-year-old daughter of his girlfriend. [FN1:] This was the second trial for defendant; his first trial ended in a mistrial after the jury could not reach a verdict. Following the first trial, a plea agreement was reached between the People and defendant pursuant to which he would plead guilty to one count of sexual abuse...in exchange for a sentence of time served and 10 years probation. County Court [Czajka], however, refused to accept this plea offer and defendant proceeded to the second trial."

As with the Clark case immediately above, what the (nominal) prosecution had agreed to was not harsh enough for Czajka.

[770] "We are persuaded...that defendant's sentence is harsh and excessive...[H]e has no prior criminal history...which would warrant the imposition of maximum consecutive sentences aggregating 100 years in prison...We therefore modify defendant's sentence in the interest of justice...Defendant will thus serve an aggregate sentence of 28 years in prison..."

Therefore, the sentence Czajka imposed was reduced by 2%.

Judge Karen Peters concurred in this sentence reduction. Having done so in this case, though, why did she insist, in Nickel's case, that that maximum possible sentence of 54 years remain in effect? Nickel had no prior criminal history either. Could her disparate treatment of these two cases have anything to do with the fact that, as she was involved in the panel deciding Nickel's case, it was almost time for her to face re-election? (See Judges section; "Elected" subsection.)

In re Natasha RR, 839 N.Y.S.2d 623 (2007)

Here, Czajka's decision to keep the child in DSS custody due to parents' intellectual limitations was reversed.

[624] "Appeal from an order of the Family Court...which granted petitioner's application... to extend the placement of respondents' child [with DSS].

"[P]etitioner [DSS] filed a petition at issue herein to extend placement. Respondent opposed the petition and a hearing ensued, after which Family Court [Czajka] ordered the child's placement extended and further determined that 'the permanency plan should be changed, as requested by the law guardian, to free the child for adoption.'

"The fact that ongoing assistance may be necessary from social services or other providers for a parent to regain custody does not foreclose the return of a child to a biological parent...Pertinent concerns under such circumstances include, among others, the extent of services needed and the availability of such services, as well as the parent's willingness and ability to recognize the need for [625] help and otherwise cooperate with indicated services.

"Respondent and Wayne RR have intellectual limitations, but both parents were fully cooperative with petitioner [DSS] and displayed significant efforts to avail themselves of many relevant services, programs and assistance. There was considerable evidence indicating that they might be able to adequately raise the child with support services. However, Family Court did not discuss or weigh the evidence regarding the various available services and whether the child could be adequately cared for with such services. Instead, its decision to extend placement and change the permanency plans appears to have been premised, in significant part, upon its finding that the parents are 'incapable of independently providing proper and adequate care for the child.' While Family Court's factual finding regarding an inability to independently provide care is supported by the record, an incorrect legal standard was applied since a parent does not have to function in a totally independent fashion to be reunited with a child. The evidence as to whether these parents can care for the child with the available services should have been weighed and considered, together with the other relevant evidence. Accordingly, the order must be reversed."

In re Natasha RR, 839 N.Y.S.2d 625 (2007)

Same child as case above; Czajka's termination of parental rights reversed.

[626] "Appeal from an order of the Family Court...to adjudicate respondents' child to be a child of mentally retarded parents, and terminate respondents' parental rights.

"In March 2006, petitioner [DSS] brought the current proceeding seeking to, among other things, terminate respondents' parental rights...upon the ground of mental retardation. Following a hearing which included testimony from, among others, experts and individuals who had worked with respondents, Family Court [Czajka ruled verbally from the bench. It found that the 'overwhelming evidence' established that both respondents were mentally retarded and that 24-hour assistance would be necessary for these parents to keep the child [627] from being neglected. The court went on to state that it has 'no discretion. . .under the circumstances' but to grant the petition terminating respondents' parental rights.

"One of the experts who evaluated respondents was David Horenstein, a clinical psychologist with significant experience doing evaluations for Family Court. He had met with and conducted extensive evaluations of respondents in October 2003, July 2004 and April 2005. He submitted detailed reports and testified at both the extension hearing in October 2005 and the termination hearing in September 2006. He explained that his testing revealed that Wayne has an IQ of 72 and Malissa has an IQ of 69. These scores put Wayne in the borderline area (slightly above the general upper end score for mental retardation of approximately 70) and Malissa at the upper end of mild retardation. He noted that neither respondent had any significant psychopathy. At the extension hearing, he characterized them as 'very, very motivated,' observed that they had been 'compliant with everything that's been asked of them' and stated that they did not have 'profound deficits.' He later added that they are 'workable people' who 'have limitations, they understand that they do, they understand that they need outside help, and are more than willing to do everything asked of them.'

"When Horenstein was asked at the termination hearing whether he had an opinion with a reasonable degree of clinical certainty whether respondents could provide safe and adequate care for the child, he acknowledged that he 'struggled' with these issues in his reports and that he continues to be impressed by the high level of respondents' motivation and cooperation. He opined that, with an extensive network of support in place, they could safely parent the child.

[628] "The other expert to offer an opinion was Stephanie Tsandikos, a clinical psychologist, who had spent about one hour with each respondent. She responded to the inquiry regarding respondents' ability to provide safe and adequate care by stating that, 'with extensive services in place, it might be doable,' but she had 'grave concern[s].' When asked about the extent of services, she indicated that her 'fantasy situation' would be a family member living with them or some other situation with 24-hour help available.

"There was evidence during the various proceedings that the Columbia County ARC [Association of Retarded Citizens] has services available 24 hours per day to assist with family situations if either respondent called...[T]he social worker from ARC, Donna Coons...was so impressed with respondents' efforts and abilities that she had offered a year of personal pro bono services to assist in reuniting the family.

"Others who worked directly with respondents provided similarly highly supportive testimony. These individuals included Theresa Lux, coordinator of visitation from Catholic Charities, who monitored well over 100 visits by respondents with the child and reported proper conduct, an obvious bond between respondents and the child, and respondents' ability to appropriately administer asthma medicine to the child as needed. Kelly Steinke, a family specialist from Berkshire Farms whose job included transitional services aimed toward reunification, testified to many positive observations and added that her various unannounced visits to respondents' home revealed nothing of concern. In short, the record from the extension hearing and the termination hearing are replete with testimony from these and other individuals who worked directly with respondents and reported positively on respondents' parenting abilities and the potential for a successful reuniting of the family.

[629] "Moreover, the record reflects that services which could be characterized as extensive were, in fact, available from several providers. Family Court [Czajka] did not discuss or otherwise consider these services. Efforts to provide proof at the hearing of further services -- including a relative who ostensibly was willing to have respondents and the child live with him if that would help with reuniting the family – were not allowed into evidence. The current decision of Family Court appears to be premised upon the conclusion that, since respondents cannot function with total independence, they cannot have their child returned. As we explain in our decision in the appeal from the extension hearing that is being decided herewith [see above]...this is not a correct legal standard...The necessity and extent of ongoing services becomes one factor in a multi-pronged analysis, but it is not dispositive." [Emphases added.]

Similarly, in Nickel's case, 'efforts to provide proof' that Nickel was not the adult pictured in a sexual photograph 'were not allowed into evidence.' Strikingly, there was also no jury present in either case; therefore, the excuse that the jury would be more confused than enlightened by the evidence offered simply would not apply. It would appear that, once Czajka has made up his mind about something, he will not tolerate any evidence which contradicts the latter.

"This record does not contain clear and convincing evidence supporting termination of respondents' parental rights. The order must be reversed and the petition dismissed."

Though this was a 2007 case, given Czajka's 'reasoning' here, one might have thought it was actually a 1907 case. If these mildly intellectually disabled parents were not allowed to keep their child, which such parents ever would be?

People v. Colazzo, 844 N.Y.S.2d 509 (2007)

This was a jury trial conviction of an attempted murder, kidnapping, and robbery case. Though it was affirmed on appeal, the Third Department reduced the (maximum possible) Czajka-imposed sentence from 50 years to 15; a 70% reduction.

This was a gang- and drug-related case, which began over money that was owed. Colazzo and two others were driving around looking for a certain person.

[512] "[W]e are persuaded that defendant's 50-year aggregate prison sentence is harsh and excessive in light of, among other things, the circumstances of the crime and the more lenient seven-year prison sentence imposed upon Calderon, who was the principal actor in these crimes...Accordingly, we find it appropriate to reduce defendant's sentence in the interest of justice by directing that the 25-year sentences imposed for the attempted murder, robbery and kidnapping counts be reduced to 15 years, with all the sentences to run concurrently."

from Appellant's Brief:

"There was no evidence that defendant directed, assisted, aided, abetted or encouraged Calderon in firing the shots [into Scott's car, none of which hit him] or even knew that Calderon had a weapon until after the shots were fired.

"Defendant raises numerous issues and in particular the unreasonably excessive sentence imposed when compared with the seven-year sentence imposed upon Calderon who was the undisputed initiator and the perpetrator of this entire incident. Indeed, for a substantial portion of the time spent in the vehicle, defendant was fast asleep." [Emphasis added.]

"[Defense] Counsel sought to ask Scott if he had given a statement to the Troy Police Department and if he had been shown a photo array. Indeed, counsel made an offer of proof to the effect that Scott could not identify defendant or Calderon in a photo array at the Police Department. The court [Czajka] refused to allow counsel to inquire about this photo array." [Emphasis added.]

"During the opening remarks and closing arguments for the People, the district attorney made numerous references to the defendant's gang membership [which was actually unrelated to any of the charged crimes anyway]."

Much like he did in Nickel's trial (see Propensity/Who Cares?), Czajka allowed this purely prejudicial testimony.

"Additionally, during her summation, the district attorney reiterated what she had brought out on cross-examination with regard to defendant's failure to deny his guilt...It is clear that defendant chose not to give the police a statement after his arrest and the district attorney asked the jury to draw an unfavorable inference from this.

"The attack on defendant for failing to answer questions put to him by police officers was grossly and flagrantly improper [and Czajka allowed this]...It made a mockery of defendant's fifth amendment right to remain silent. Additionally, the testimony of [two police officers] dealing with their attempt to obtain a statement from defendant, and his resistance to give such a statement followed on summation by defendant's lack of cooperation, clearly suggested that defendant, in exercising his right to remain silent, was hiding something."

This seems to be something of a pattern amongst Rennselaer County law enforcement and prosecutors. See Carroll case in Judge Karen Peters section.

"Prior to trial the court held Molineux and Ventimiglia hearings. At the Molineux hearing, over defendant's objection, the court agreed to allow the district attorney to introduce evidence that defendant and Calderon were members of the 'Bloods.' The district attorney conceded that neither 'James,' Scott nor McIntyre [the alleged victims] were members of a rival gang.

"The court [Czajka] observed that the introduction of gang membership would be permitted to establish the relationship between Calderon and the defendant and the court offered to give the jury limiting instructions as to membership in the gang...[However at] no time during the [jury] charge [i.e, instructions] did the court instruct the jury that defendant's statement to [the two police officers] could only be considered by the jury if they find that the statements were voluntarily made beyond a reasonable doubt."

This is reminiscent of how, in Nickel's trial, having assured defense counsel that he would be able to submit his own questions to the alleged child-victim 'Arthur' during the hearing to determine the latter's competency to testify, Czajka then simply refused to do so.

"During their deliberation the jury requested a copy of the jury charge...a read-back of the testimony of McIntyre and Scott...asked for a re-definition of 'Attempted Murder,' a re-definition of acting in concert...and a re-definition of the weapons charges...[Later,] the jury indicated that they were deadlocked on the Attempted Murder count...[Still later,] the jury requested a read-back of the elements of Attempted Murder...From the notes submitted to the court, it was obvious that the jury had difficulty with deliberations."

The likely reason for the latter is that this defendant basically didn't do anything; he was merely physically present – and even sleeping for a significant portion of the time.

"Defendant was sentenced to the maximum term possible under the law for Attempted Murder and Kidnapping."

Colazzo had previously been convicted of 2 drug offenses, one of which as a youthful offender. He also has a resisting arrest misdemeanor.

"With regard to defendant's criminal history, his criminal history record indicated no act[s] of violence.

"Prior to the imposition of sentence, the court [Czajka] prefaced the sentence by indicating that he was basing the sentence on the probability or likelihood of defendant being rehabilitated...The court stated that there was little likelihood that defendant would ever live a law-abiding life." [Emphases added.]

"Significantly, counsel called to the attention of the court that Calderon, at his sentencing hearing[,] advised the judge that defendant had nothing to do with the attempted shooting or other crimes for which he was convicted. Specifically, he spoke of 'Colazzo's lack of involvement in this.'" [Emphasis added.]

"The sentencing court [Czajka] gives no specific reason for this draconian [50-year] sentence other than 'absence of remorse.' However, as defense counsel stated at sentencing, failure to admit guilt is not absence of remorse. Should appellant have admitted guilt and shown remorse knowing that he did not fire any shots at Scott and did not possess the weapon that fired the shot? To do so would have defied reason and undercut any possibility of appeal."

Yes, but, as we've already seen, the latter is exactly what Czajka wants.

Calderon, the actual shooter/perpetrator, stated at his own sentencing:

"[L]ike I stated on the record...Keith Colazzo did not do nothing...He shouldn't be charged for my actions."

Colazzo only went to trial because Czajka had rejected the plea bargain agreed upon between the prosecution and the defense.

"Although Judge Czajka has a right to reject a plea bargain, it is rarely done and suggests that [he] has a view of punishment not in conformity to that of the majority of the Bench in this state."

Ya think?

Czajka sentenced Colazzo to the absolute maximum on each and every count, running all consecutively that he could run consecutively.

from the Pre-Sentence Report:

"Mr. Scott [the alleged victim]...stated that he knew Keith Colazzo and 'never had a problem' with him."

People v. Bunce, 845 N.Y.S.2d 168 (2007)

Although this child-sex-abuse plea conviction was affirmed, the Third Department did criticize Czajka.

The alleged victim was a boy, apparently between the ages of 11 and 15.

[169] "He entered a guilty plea to all counts in exchange for the People's promise to recommend six years of incarceration... County Court, after stating that it deemed the recommended sentence 'inappropriate,' imposed an aggregate prison sentence...of 12 to 18 years."

Yet again, we have (nominal) 'Judge' Czajka trying to out-prosecute the actual prosecutor.

[170] "[Czajka advised the] defendant during the plea colloquy -- albeit indirectly -- that he 'could get up to 54 years whether...convicted by plea or after a trial [by] a jury' (emphasis added [by 3rd Dept.])...To be sure...the better practice is for the trial court (or counsel) -- in all such cases -- to explicitly and clearly advise the defendant on the record, prior to the acceptance of the plea, that the court is not bound to follow the People's sentence recommendation...rather than simply advising what the maximum sentence he could receive [is] if convicted on the plea (or after trial) or relying on a statement of noncommitment buried in a lengthy written plea agreement."

So, Czajka sentenced Bunce to more than twice the time the prosecution itself had agreed to.

People v. Francis, 872 N.Y.S.2d 588 (2009)

This jury trial drugs conviction was reversed, due to Czajka allowing the prosecutor to refer -- in summation -- to evidence which had not been introduced at trial.

[590] "[W]e find merit in defendant's contention that his right to a fair trial was infringed when the People were allowed to refer during summation to the specific contents of defendant's cellular telephone, which included logs of incoming and outgoing calls, none of which was introduced into evidence at trial...Therefore, it was inappropriate for the prosecutor, during summation, to point out to the jury the specific dates and times of certain calls logged on the telephone, and to invite the jury to view the contents of the telephone during deliberations... Accordingly, defendant is entitled to a new trial on the possession charges."

People v. Demagall, 876 N.Y.S.2d 541 (2009)

This murder jury trial conviction was reversed, due to the cumulative effect of Czajka's errors in handling the People's decision not to produce a certain expert.

[543] "In this murder case, defendant asserted insanity as his defense. Defendant had a three-year history of severe psychiatric problems that had been manifested in a variety of bizarre actions and resulted in him being placed several times in a secure psychiatric facility in Massachusetts. He was at that facility when, on February 9, 2006, he escaped. He claimed to have received a vision from God directing him to kill the victim, a person with whom he had a brief encounter a couple of weeks earlier and whom he believed provided drugs to minors. Dedendant entered the victim's home in Columbia County on the morning of February 11, 2006, where he killed him by stabbing him over 30 times and repeatedly striking him with a paperweight that he had placed in a sock. Defendant piled various items around the victim's body and set the pile on fire. He took a few items from the home and then left the premises.

"Based upon the forensic psychiatric report of Stuart Kleinman that was prepared at the People's request, the People consented to defendant's entry of a plea of not responsible by reason of mental disease or defect...County Court [Czajka], however, rejected the plea. The matter proceeded to trial, where the insanity defense was urged by defendant. Rejecting the defense, the jury convicted defendant of the murder count. Defendant thereafter moved to set aside the verdict and County Court denied the motion without a hearing. Defendant was sentenced to a prison term of 25 years to life.

[544] "Kleinman opined in his forensic psychiatric evaluation that defendant had the capacity to know that killing was illegal, but he did not appreciate that doing so was wrong. County Court [Czajka] rejected this opinion based upon its interpretation of the law as proving that, if defendant knew his conduct was illegal, then he necessarily knew it was wrong. As described by Judge Cardozo...the law, albeit nuanced, does not compel the conclusion that knowledge of wrong necessarily follows from knowledge of illegality...Notwithstanding County Court's [Czajka's] misapprehension of the law, reversal is not required for its refusal to accept the plea...Nevertheless, we find that County Court's misapprehension of the law contributed to a prejudicial error at trial regarding defendant's efforts to comment on the failure of the People to produce Kleinman at trial.

"Defendant produced two experts who gave detailed explanations as to why defendant's actions were consistent with acute mental infirmities. Defendant's diagnosis included schizophrenia, paranoid type. He was also delusional, having believed that he was, variously, among others, Robin Hood, Merlin and Sir Galahad of the Arthurian legends, a ninja, and the slayer of the white stag. Numerous other examples of unusual behavior -- such as living for a while in a cave despite having a home -- were set forth. Defendant's experts opined that defendant lacked capacity to know or appreciate that his conduct was wrong.

[545] "[R]eversible error occurred as a result of County Court's handling of the People's decision not to produce Kleinman, who was the first expert they retained to examine defendant. Defendant asserts three interrelated -- and escalating -- errors: County Court refused to give a missing witness charge [i.e., jury instruction]; the court directed defense counsel that he could not urge the jury in summation to draw an inference from the People's failure to call Kleinman; and, when the jury sent a note inquiring why it had not heard from Kleinman, it was instructed by the court that 'you may not speculate as to why you did not hear from [Kleinman].'"

Could Czajka have hamstrung the defense any more on this issue? Obviously, the reason why 'The People' did not produce this expert for trial was that he would say things to back up the insanity defense.

[546] "Under the circumstances, we are constrained to conclude that the cumulative effect of the errors as discussed herein require a new trial.

"While the remaining issues are academic, we find merit in defendant's request for a remittal to a different judge under the circumstances of this case." [Emphasis added]

Indeed. It is unfortunate that all of the defendants who were unlucky enough to appear before this 'judge' couldn't get him replaced by a different one.

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"Judge Dread," by Brad Hamilton, New York Post, 12/9/04

[Because the entire article is printed herein, quotation marks have been dispensed with.]

He could be the worst judge in the state.

At least that's what some people in Columbia County are saying about Paul Czajka, a local jurist under fire for allegedly making outrageous rulings, including giving custody to an abusive mom who "curcumsised" her boy with a lit cigarette.

The boy's father and at least six other litigants filed complaints about Czajka to the state court's watchdog, casting him as a vindictive tyrant who's sided with bad parents to favor lawyers he once worked with when he was the district attorney or in private practice. The judge also has been hit with a federal suit in Manhattan by Wall Street financial consultant John Chase, who claims Czajka ruled for his ex-wife Kristin despite her facing bank fraud charges. "He's the most complained-about judge we've ever seen," said George Courtney, who heads the Columbia County chapter of the statewide Father's Rights Association. But it's not just men he's outraged.

Three complaints are by women, including Michelle Mayer, a battered wife and mother of four who says Czajka illegally removed her kids because she exposed them to beatings she suffered by her ex-husband, though he was arrested when she called the cops. But no action has been taken against Czajka (pronounced ch-EYE-kah), 50, a politically connected Republican who narrowly won re-election to a 10-year term despite being ripped by one of the most respected lawyers in the state.

Complaints to the state's Commission on Judicial Conduct allege:

* The judge failed to protect a 13-year-old boy who's allegedly endured years of abuse, including the nightmarish circumcision, a scalding with hot water on his side and broken ribs. The boy also accidentally severed his fingertips when his mother allowed him to play with a chainsaw, according to a complaint by the father, John Calkins, 32, who's been battling for custody of the kid. Calkins claims the mother once informed him that her family knew the judge.

* Czajka has in two cases jailed fathers in custody fights, one who served time for violating a court order by discussing custody with his wife after an accident in which she got drunk and smashed into a telephone pole, injuring one of her daughters.

* Czajka engaged in a "vendetta" against another father, plumbing contractor George Ihlenburg, who did work at the judge's home and believes he was targeted because Czajka wasn't happy with the job, his complaint says.

* Czajka railroaded an elderly husband, Herbert Stickles, 69, to a sex-abuse conviction after false charges were brought against the man, by allowing his lawyer to not present a defense, according to his wife, Pat. She claims the case was retribution for her suing the county after being sickened by the social-service building where she worked in Hudson, an office put up over an old oil-storage facility.

A court observer, John Dunne, said of the jurist: "The criticism is he's often insensitive to the needs of women and children." Dunne is the former head of the state senate's judiciary committee and now part of a blue-ribbon panel to restore public confidence in how New York judges are elected. He served as a juror in a case before Czajka -- though it wasn't a family matter -- and told The Post he came away with an "unfavorable" opinion of him, though he wouldn't elaborate.

So Dunne crossed party lines to back challenger Pam Joern, who slammed Czajka -- who handles criminal, family and surrogate cases -- claiming he's too quick to remove kids from their parents. Figures show that rural Columbia County has the highest number of children in foster care per capita in the state: 4 per 1,000 -- the statewide average is 2.5. "The problem is he's an attractive man and kind of charming, but he gets on the bench and he's destructive," said Joern, a 54-year-old lawyer. "He's an arrogant, narcissistic, nasty person. He's got a huge chip on his shoulder." Said Philip Mann, an advocate who encouraged the litigants to tell their stories, "Chief Judge Judith Kaye and Gov. Pataki were both sent these complaints, and I believe it was their acquiescence that empowered Judge Czajka." The CJC [Commission on Judicial Conduct] has never publicly censured Czajka and dismissed the Mayer and Ihlenburg complaints. Czajka, saying ethics prevented him from discussing cases, said, "There has never been a case before me where a parent was alleged to have burned a child's penis." <end of article>

Well...that's reassuring...

Unfortunately, in the rare instances in which the Commission on Judicial Conduct does censure a judge, it usually does so privately.

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"Judge Resigns to Run for DA," by Carole DeMare, (Albany) Times-Union, 5/7/11

"After 16 years on the bench, Columbia County Judge Paul Czajka announced Thursday that he has resigned so he can run for district attorney in November, a position he previously held for seven years."

While certainly welcome news, one suspects there is more to this story than meets the eye.

Czajka indeed was elected DA once again. The following are selected 'highlights' from his tenure so far:

People v. Brian Shackleton, 997 N.Y.S.2d 669
(Kinderhook Town Court, David A. Dellehunt, presiding)

This DWI case had been scheduled for a non-jury trial on 9/10/13.

"The People appeared at the time of trial and informed the Court that they would not be participating in the trial...The DWI Bill of Particulars alleges that at the time of the [traffic] stop the defendant emitted an odor of alcoholic beverages, and possessed glassy eyes, impaired speech, and impaired motor coordination; the defendant also allegedly made certain admissions and failed four out of five field sobriety tests. In addition, the New York State Police filed a Certified Breath Analysis Record affirming that the defendant had a positive breath screening, and indicating a blood alcohol content of .07 per one centum of weight by alcohol in his blood.

"At the time of arraignment, the People [now Czajka] offered the pro se defendant an adjournment in contemplation of dismissal; the Court [Delaney] rejected the aforesaid proposed disposition, noted that the defendant had a prior DUI conviction within the past ten years, and adjourned the matter for the defendant to obtain counsel. The defendant appeared with counsel and the People again offered an adjournment in contemplation of dismissal; when the Court rejected the proposed disposition, the People withdrew prosecution. The parties orally sought to have the Court dismiss the matter for failure to prosecute, but the Court declined the request. The Court gave both parties an opportunity to make written motions pursuant to the Criminal Procedure Law, but none were filed by defense counsel or the People. Thereafter...after consultation with counsel and with a full understanding of his right and privilege to a jury trial, defendant waived his right to a trial by jury and requested a non-jury trial...

"The People have the burden to prove defendant's guilt beyond a reasonable doubt. Not only have the People failed to meet their burden, but the People have, without explanation, refused to participate in the trial, to call witnesses, or present evidence. By refusing to call witnesses and/or present any evidence the District Attorney [Czajka] is attempting to do indirectly what the Legislature has prohibited him from doing directly, that is, exercising the power of nolle prosequi [dropping prosecution of a case].

"The question posed at the time of trial, however, was whether the People met their considerable burden of proof; failure to do so requires the Court to dismiss on that ground of lack of evidence. While a trial at which a District Attorney declines to put any proof may be described as a waste of judicial resources by some...it is imperative that those charged with holding District Attorneys accountable be aware of such practices in order to make informed judgments and hold said District Attorneys responsible for their deliberate acts or omissions...It remains for the electorate and/or the Governor to decide whether the District Attorney fulfilled his constitutional mandate to prosecute all matters in the County and to protect public interests."

This Court was then compelled to find defendant not guilty.

Why was Czajka showing this defendant such favoritism? This would appear to fit his long-standing pattern of twisting the law not only to 'get' those he dislikes, but also, to protect those he elects to.

"Altered Papers Served by DA," by Robert Gavin, (Albany) Times-Union, 2/20/15

[Because the entire article is printed herein, quotation marks have been dispensed with.]

Columbia County District Attorney Paul Czajka served altered court documents to a Kinderhook village court without a judge's permission in an ongoing legal battle with a local justice in 2012, a state appeals court said on Thursday.

The Appellate Division of state Supreme Court said the district attorney's actions were "startling" and "grave and disturbing."

The mid-level court ordered a fact-finding hearing into the matter after David Dellehunt, a justice in Kinderhook's town and village courts, asked for sanctions to be imposed on Czajka to at least cover legal fees for the town and village estimated at $20,000.

The appeals court learned of the altered documents from Czajka's own arguments -- he tried to use them to help him win his appeal.

"It certainly bears significant consideration that, as an elected district attorney, petitioner's apparent involvement here may be deemed to constitute a substantial violation of the rules of professional conduct," Justice Elizabeth Garry wrote in the decision. She was supported by Justices John Egan, Michael Lynch, and Christine Clark.

If he is found to have engaged in professional misconduct, Czajka could face discipline from the Appellate Division's Committee [on] Professional Standard[s] ranging from an admonishment to censure or disbarment.

What Czajka did in 2012 is unclear.

"Notably, although (Czajka) acknowledges in his brief that he served the altered documents, he does not specifically admit or deny that he made these alterations," the ruling said. "By adopting the passive voice, he further avoids either fully accepting or attributing responsibility for performing the underlying actions."

In an emailed statement, Czajka said: "I accept full responsibility for the circumstances described in today's (Thursdays) decision. Although I delegated the preparation of the papers to another and although I had no personal knowledge of the 'amended petition' until much too late, I recognize that I am not relieved of responsibility as an institutional matter."

Garry said justices were "sympathetic" to Dellehunt's call for sanctions.

The sequence of events began in 2012, when Czajka and Dellehunt were at odds in what has been called a turf war between the district attorney and local justices.

After being elected, Czajka told the justices that his office would handle all cases and pleas and make final decisions on whether to drop charges. Some justices said it reduced their roles to rubber-stamping Czajka's decisions. <end of article>

(Czajka sending an e-mail to the above reporter, as opposed to speaking with him on the phone or in person – where the reporter would likely ask follow-up questions – strongly suggests that Czajka had something to hide.)

-----

And I saw something else under the sun;
In the place of judgment -- wickedness was there,
in the place of judgment --
wickedness was there.

-- Ecclesiastes 3:18

---

And he spoke a parable unto them to this end, that men ought always to pray, and not to faint; Saying, There was in a city a judge, which feared not God, neither regarded man. And there was a widow in that city; she came unto him, saying, Avenge me of mine adversary. And he would not for a while; but afterward he said within himself, Though I fear not God, nor regard man; Yet because this widow troubleth me, I will avenge her, lest by her continual coming she weary me. And the Lord said, Hear what the unjust judge sayeth.

-- Luke 18: 1-6

<the following par. goes on pg. C7 where indicated:>

Subsequently, after Rubin had already been released from prison, a federal district judge granted Rubin a writ of habeas corpus, but only as to two of the charges. The 2nd Circuit subsequently affirmed this ruling.