(dissenting). Because the sanction of censure under the circumstances of this case is at odds with cases in which more grievous conduct resulted in admonition and, further, comes nowhere near the conduct in other cases that resulted in censure, I dissent.
In Matter of Sharpe, the judge ordered an assistant district attorney to produce a witness in two minutes or he would be jailed. The witness did not appear and the assistant was put in jail for a period of between 15 and 45 minutes. The attorney was not given an opportunity to address the court before he was jailed. He was released only when the witness appeared (see 1984 Ann Report of NY Commn on Jud Conduct 134, 139 [June 6, 1983]). The judge in Sharpe then vacated the contempt ruling and expunged the record. The Commission determined that the judge had engaged in a “gross abuse of power” but issued a sanction of admonition. (Id.)
In Matter of Feinman (see 2000 Ann Report of NY Commn on Jud Conduct 105 [Dec. 21, 1999]), the judge detained a litigant *12for one hour and 40 minutes in handcuffs, in his courtroom, without explaining the reason either to the detainee or to his attorneys. The detention occurred because the litigant’s beeper sounded in court and because of comments that he allegedly made to a court officer. The detainee was not given any notice that his actions would result in detention, and was deprived of his liberty without any sound legal reason.
The judge released the detainee after lunch and did not hold him in summary contempt of court. The Commission found the judge to be “cooperative and contrite” when confronted with his misuse of judicial power. (Id. at 108.) The sanction in Feinman was admonition.
The disparity in the sanction given respondent here and the sanctions given to other judges, evident in the admonitions given in Sharpe and Feinman, is even more pronounced when the facts of this case are compared to facts in other cases where the sanction was censure. In Matter of Recant (2002 Ann Report of NY Commn on Jud Conduct 139 [Nov. 19, 2001]), Recant was censured for conduct that included engaging in an improper ex parte conversation with the supervisor of an assistant district attorney, misusing bail in three cases in order to attempt to coerce a guilty plea, holding two defendants in custody, at least one of them being placed in handcuffs, without complying with the procedure for summary contempt, refusing to hear an attorney on the record and excluding two attorneys from her courtroom without establishing on the record a justification for such action and without a summary contempt proceeding.
In Matter of Teresi (I) (2002 Ann Report of NY Commn on Jud Conduct 163 [Feb. 8, 2001]), Teresi was censured for conduct that included incarcerating two people, one for a day and one for a weekend, without a hearing, finding a litigant in contempt of court and ordering him to serve six months in jail without a written order for refusing to sign a deed (the litigant served 45 days before being released by another judge) and refusing to allow parties to make a record where the judge ordered a trial prior to the already scheduled date when the parties refused to settle.
In Matter of Teresi (II) (2005 Ann Report of NY Commn on Jud Conduct 216 [Dec. 17, 2004]), Teresi was again censured for holding an ex parte conversation in chambers, this time with a nun who was to be an expert witness in a drunk driving case before him, not telling the parties about the conversation and *13denying defendant’s request for an adjournment in order to obtain another expert witness after the nun withdrew as a witness.
Respondent, while not contrite, did vacate the finding of contempt without jailing or handcuffing the party. Further, his attorney was able to make a record of the parking lot incident. What is at issue is how the Judge handled the incident rather than the actual consequences of his actions. Based on the isolated incident and the fact that the Commission has previously held that misuse of summary contempt, on its own, can result in admonition, depending on the underlying facts, the sanction here should be admonition.
One of the concerns of the Commission is that the respondent stated that he would act in the same way in the future. He was not asked, however, whether he would persist in the view that he would do it again if this Court indicated that the wrong procedure was used in finding Módica in contempt or that, under the circumstances, summary contempt should not have been found. It is simply unrealistic to conclude that this former assistant district attorney, former Civil Court Judge and now Supreme Court Justice, with an unblemished record, would ignore a ruling of this Court.
This Court is not required to accept the sanction of the Commission and, in fact, has the power to reject both the factual determination and the sanction (see NY Const, art VI, § 22 [d] [“The court of appeals may impose a less or more severe sanction prescribed by this section than the one determined by the commission, or impose no sanction”]). Because of Commission precedents and because the summary contempt here was not carried forward, the sanction should be admonition.
Finally, while as noted by the majority, the foregoing cases were decided by the Commission on Judicial Conduct and not the Court of Appeals, it is the Court of Appeals that has the duty in this state to ensure that the law is applied in an evenhanded fashion. When the Commission admonishes a judge who jails a lawyer because he cannot produce a witness in two minutes and admonishes another judge who permits a person to remain handcuffed during a luncheon recess, but requires censure for this respondent, who found a person in contempt but vacated the contempt without further action, the law is being applied in an uneven fashion. When the Commission censures a judge who attempts to coerce pleas by threatening *14high bail and that same judge excludes attorneys from the courtroom and places persons in custody and handcuffs without employing the procedure for summary contempt, and when the Commission censures another judge who incarcerates persons for a day, a weekend or 45 days while at the same time censuring this respondent who did not jail anyone, the law is being applied in an uneven fashion.
Accordingly, I dissent.
Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and R.S. Smith concur in per curiam opinion; Judge G.B. Smith dissents in a separate opinion in which Judge Read concurs.
Determined sanction accepted, without costs.