Panel Rebukes Judge, Citing ‘Lunacy’ in Court
Published: November 28, 2007

The next time you pass through the city court system in Niagara Falls, N.Y., remember to turn your cellphone off.

Niagara Gazette

Judge Robert M. Restaino jailed 46 defendants.

Yesterday, the State Commission on Judicial Conduct recommended the removal of a judge in Niagara Falls City Court who had what the commission’s chairman called “two hours of inexplicable madness” when a cellphone rang in his courtroom.

On the morning of March 11, 2005, the judge, Robert M. Restaino, was presiding over a slate of domestic-violence cases when he heard a phone ring. According to the commission’s report, he told the roughly 70 people in the courtroom that “every single person is going to jail in this courtroom” unless the phone was turned over.

A security officer was posted at the door while other officers tied to find the phone, but failed.

After a brief recess, Judge Restaino returned to the bench and asked the defendant who had been standing before him in the front of the courtroom when the phone rang if he knew whose it was.

“No,” said the defendant, Reginald Jones. “I was up here.” The ringing had come from the back of the room.

Nonetheless, the judge scrapped plans to release Mr. Jones, set bail at $1,500 and sent him into custody.

He was the first of 46 defendants to be sent into custody that day because of what could be called the case of the ringing cellphone. The judge opined at length about his frustration over the phone.

“This troubles me more than any of you people can understand,” Judge Restaino said, adding: “This person, whoever he or she may be, doesn’t have a whole lot of concern. Let’s see how much concern they have when they are sitting in the back there with all the rest of you. Ultimately, when you go back there to be booked, you’ve got to surrender what you got on you. One way or another, we’re going to get our hands on something.”

One defendant, according to the report, told the judge, “This is not fair to the rest of us.” To which the judge replied, “I know it isn’t.”

Another told the judge, “This ain’t right.” The judge responded: “You’re right, it ain’t right. Ain’t right at all.”

The commission said that Judge Restaino acted “without any semblance of a lawful basis” and behaved like a “petty tyrant.” It said his conduct “transcended poor judgment.”

All of the defendants in the courtroom were there as part of a program in which domestic-violence offenders can agree to undergo drug and alcohol testing, as well as counseling, in lieu of jail time. Participants make weekly appearances in court to have their progress monitored and are released after each appearance unless they have violated terms of the program.

Eleven of the defendants had already appeared before the judge that morning and were simply waiting for the proceedings to end, only to be recalled and have their releases rescinded. All the defendants were taken to the city jail. Fourteen who could not make bail were taken to the county jail. After receiving inquiries from the local news media, the judge ordered their release in the late afternoon.

Judge Restaino could not be reached for comment.

His lawyer, Terrence Connors, said Judge Restaino would exercise his right to appeal the decision within 30 days to the New York State Court of Appeals, The Associated Press reported. During that time, he remains in office.

The 48-year-old judge has been on the court since January 1996 and has not had previous disciplinary problems, according to the commission.

Raoul L. Felder, the commission chairman — who is best known as a celebrity divorce lawyer — was the lone dissenter on the 10-member commission. He voted to censure the judge, though he excoriated his behavior in the report, calling it, among other things, “two hours of viral lunacy.” But Mr. Felder said he was swayed by the fact that it was a first offense and that the judge was contrite in an appearance before the commission.

“If we had the power to suspend, I would have voted to suspend him, but we don’t,” Mr. Felder said. “But to destroy a man’s life because he snapped doesn’t make any sense. This guy was 11 years a judge, 10 years a public defender, and seemed to have an exemplary record before this.”

The other commissioners rejected his contention.

One of them, Richard D. Emery, called Mr. Felder’s arguments “breathtaking.” And Robert H. Tembeckjian, the commission’s administrator, said “the fundamental rights of 46 people were deliberately and methodically violated,” adding that “it was no consolation to those thrown in jail that the judge had not been in trouble before.”