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FULTON COUNTY---When state Supreme Court Judge Richard T. Aulisi released two women from jail last year, ruling that Fulton County Family Court Judge David F. Jung had improperly imprisoned the women following contempt proceedings, Jung claimed he was just “following the law as he reads it”.
The Appellate Division of the state Supreme Court ruled Thursday that Jung had violated the constitutional rights of one of the women and affirmed Aulisi’s decision.
The Fulton County Board of Supervisors had expended about $7,000 of taxpayer funds to appeal Aulisi’s decision on behalf of Jung, hiring the law firm of Murphy, Burns, Barber and Murphy of Albany.
Catherine A. Barber represented the county while Cortland attorney James T. Murphy of Legal Services of Central New York, represented the two women.
While the decision Thursday was in the case of Karrie Foote, a ruling in the case of angelic Constantino is expected in the near future.
Jung had sentenced both Foote and Constantino last year to jail without providing them assistance of counsel and Aulisi ruled that Jung violated the constitutional rights of the women.
In the Foote case, the Appellate Division said that following a hearing pursuant to Family Court Act and a subsequent confirmation hearing, Jung confirmed the Support Magistrate's decision finding petitioner in contempt for willfully failing to pay court-ordered child support and directed her immediate incarceration in the Fulton County Jail for 180 days.
Murphy, Foote’s attorney, then commenced a proceeding for a writ of habeas corpus alleging that she was unlawfully detained by respondent because Family Court had not properly advised her of the right to counsel guaranteed by the Family Court Act. Supreme Court granted petitioner's application and directed her immediate release.
The court wrote that although Jung and his attorney “now argue that habeas corpus relief was unavailable because petitioner could have appealed Family Court's contempt order, the record does not reflect that this argument was made to Supreme Court. Accordingly, the argument is unpreserved. Were we to consider it in the interest of justice, we would find that petitioner was not required to first pursue an appeal, and she could utilize the writ to seek immediate release because she alleged the deprivation of an absolute and fundamental right……As we have often noted, when a party is not fully informed of the statutory rights to be represented by counsel, to seek an adjournment to consult with counsel and to have counsel provided if he or she cannot afford to retain counsel, the resulting adjudication cannot result in incarceration.
“Further, Family Court is obligated to conduct an "in depth inquiry to ascertain that the [party's] decision to proceed [without counsel] was knowingly, intelligently and voluntarily made".
“At the first appearance, the Support Magistrate advised (Foote) only that she was entitled to be represented by an attorney and might be eligible for representation by the Public Defender's office. Petitioner was then told that she had to apply for such representation within two weeks, even though the hearing date was set for nearly four months later. Although petitioner stated that she intended to apply, she did not do so, and she did not appear at the evidentiary hearing because she believed that Timothy Foote, her husband, had agreed in a related custody proceeding not to pursue the support violation.
Upon Foote’s default, the Support Magistrate found her in contempt and recommended incarceration. Two weeks later, at the confirmation hearing, she appeared before Jung and voiced her wish not to proceed without counsel. Despite its obligation to address the issue of representation and rectify any deficiencies, Jung merely told petitioner that her request was "too late" and ordered her incarcerated unless she paid the full child support arrears of $4,488. Thus, in addition to failing to assure that petitioner had been properly advised of her right to assigned counsel, Jung denied her that right when she attempted to exercise it at the confirmation hearing.
Karrie Foote and Angelic Constantino were ordered released from jail after their legal aid attorneys filed habeas corpus petitions with the court.
Contantino was sentenced in abstenia by Jung, denied her her constitutional right to be present for all material stages of a proceeding, after Fulton County law enforcement and court officials failed to produce her from the Schenectady County Jail where she was incarcerated pending disposition of a loitering charge.
Jung had imposed six month sentences against both Constantino and Foote on charges of contempt.
During Constantino's hearing on the habeas corpus petition, it was learned that the Saratoga County Public Defender's office who had also been involved in the proceeding has filed a complaint against Jung with the New York State Commission on Judicial Conduct. However, due to commission rules, all proceedings against a judge remain confidential until and unless it decides public sanction against a judge is warranted.
Constantino and Foote have filed lawsuits against Fulton County. 4-14-06
© 2006 North
Country Gazette
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