Cop-Shoving Judge Recuses Himself In Buffalo Police Cases

Law360 (October 15, 2020, 6:52 PM EDT) -- The Buffalo judge who avoided arrest for shoving a cop after touting his family ties to police recused himself Thursday from three lawsuits against the same police department that declined to pursue charges against him.

Ethics experts consulted by Law360 earlier on Thursday said New York Supreme Court Justice Mark Grisanti's statements to police — captured on body camera footage that was obtained by Law360 — led them to question whether he could be impartial.

Administrative Judge Paula L. Feroleto notified Law360 of Justice Grisanti's recusal from the police cases in response to questions about concerns from ethics experts. It came just hours after he presided over a teleconference hearing in one of the suits against the Buffalo Police Department. The issue was not raised during the brief hearing.

Local criminal defense attorneys say Justice Grisanti could easily have been charged in the aftermath of the June 22 street fight with his neighbors.

The episode, which took place against the backdrop of the Black Lives Matter movement and received national news coverage in recent days, has raised questions about whether Grisanti's judgeship, his ties to police, his middle-class neighborhood and his race played a role in him receiving favorable treatment. Attorneys not involved in the case pointed out that a Black man without those connections could have suffered far worse consequences for the same actions.

"I've had clients arrested for far less," said Samuel P. Davis, a Buffalo criminal defense attorney at Dolce Panepinto, noting that his clients have been charged with resisting arrest for mere muscle movement. He and other Erie County criminal defense attorneys told Law360 they would have expected charges for disorderly conduct and obstructing governmental administration, perhaps even assault. "It's very easy for people to be taken into custody for much less than touching the officer and pushing the officer," Davis added.

That apparent disparity in treatment is tied closely to the ethical problems presented by the judge presiding over cases involving the police department, attorneys told Law360 before the recusal news.

"Here, the judge is in a position to favor the police defendants in gratitude for avoiding a criminal charge against him," said Stephen Gillers, a professor at New York University School of Law. "The conflict is aggravated by the judge's comments" when he was detained, Gillers added, "in which he sought to ally himself with the police and in particular his comment, 'We're all on the same page with everything.'"

The judge said that when he was handcuffed and sitting in the back of a police car after officers arranged for a phone call with the judge's cousin, Detective Mark Costantino. Costantino expressed concern about the consequences if the judge were formally arrested, according to the body camera footage, which was obtained through a Freedom of Information Law request.

Justice Grisanti speaks with his cousin, a Buffalo police detective, by iPhone in the police vehicle in this video clip from police body camera footage of the June 22 incident.

After falsely denying he invoked Buffalo Mayor Byron Brown's name and admitting he shoved an officer, Justice Gristani then told his cousin, "I'm 100% for you guys."

"No, I know you are," Costantino said.

"We're all on the same page with everything," Justice Grisanti said.

Gillers said that while that remark doesn't necessarily mean Justice Grisanti would be biased in his rulings toward the police department, it does mean that "the public may reasonably question his impartiality."

The profanity-laced body camera footage of the bare-chested judge first published on Tuesday by Law360 shows how the state senator-turned-judge used physical force against police, justified it, repeatedly threatened officers, and touted his family ties to law enforcement. An officer said the judge wanted "special treatment" as he yelled about his daughter and son-in-law being police officers in addition to his friendship with the mayor and ties to a senior police official.

Judge Feroleto previously defended Justice Grisanti in a July 30 letter provided to Law360 by Gina Mele, the neighbor involved in the June 22 fight, saying that she had "never had any complaints about Judge Grisanti" related to his work in court and that she believed his position had not benefited him, citing media coverage and a public announcement that the district attorney was not pursuing the case.

On Thursday, Judge Feroleto declined to say if she stood by her statements from July, but she told local TV station WKBW on Wednesday that "at that time, there was different video than there is now," referring to the body camera revelations as compared to the Meles' choppy surveillance video.

At 9:30 a.m. on Thursday morning, Justice Grisanti held a brief compliance teleconference in a suit brought by Samantha Crump against the Buffalo Police Department. Crump claims that the police assaulted, falsely arrested and imprisoned her in August 2018 on charges of obstructing governmental administration, resisting arrest, and disorderly conduct — the same charges that Buffalo criminal defense attorneys said Justice Grisanti himself could have faced, based on their review of the body camera video.

Crump says her arrest was provoked by merely asking the officers a question. She seeks $750,000 in damages.

The second police case that Justice Grisanti had been handling also involves a man who claims he was beaten up by police in July 2014. Eban Brown similarly claims he was falsely charged with obstructing governmental administration and resisting arrest, in addition to second degree assault and harassment, and a seventh degree drug possession charge.

The third police case involves a college student who was hit by a Buffalo detective's car in May 2018. Kevin Guichard was rushed to the hospital in critical condition at the time. His attorney, Eric Shelton of Brown Chiari LLP, did not immediately respond to questions about Justice Grisanti presiding over the case.

Crump's attorney told Law360 before the recusal announcement that he saw no problem with Justice Grisanti continuing to preside over the case.

"I don't think it's going to affect his partiality," Frank Falzone said. "I've known him for many years. I don't think this would have an effect one way or the other, because he's related to police and yet he had a scuffle with police. It's just one of those things."

--Editing by Brian Baresch and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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