Although I agree in substance with Judge Read’s dissenting opinion, I write separately to present my own point of view on this difficult case.
Most of the accusations against petitioner charge two forms of misconduct: failing to advise defendants of their right to counsel, and setting excessive bail. In reading the Commission’s findings, it is possible to get the impression that petitioner, on repeated occasions, denied counsel to indigent defendants and then took advantage of their unrepresented status to jail them by imposing excessive bail. If I thought this had occurred, I would vote for removal. I am convinced, however, that this impression is incorrect, and that petitioner’s misconduct was somewhat less serious than it appears at first glance.
Petitioner did repeatedly fail to give defendants the information required by Criminal Procedure Law § 170.10 (3) and (4) (a), to the effect that the defendant has the right to counsel, to an adjournment to obtain counsel, to communicate for the purpose of obtaining counsel and to have counsel assigned if he or she cannot afford one. It does not seem, however, that petitioner’s failure to recite the litany caused any defendant to be sent to jail. Conditions in the court in which petitioner sat apparently did not permit instantaneous, or even very rapid, action on behalf of a defendant by assigned counsel. This of course is troubling in itself, but it is not a problem that can be laid at petitioner’s door. I see no indication in the record that any defendant who was remanded for failure to post bail would have avoided incarceration, or would have been released sooner, if he or she had had a court-appointed lawyer. Indeed, a number of the cases in which the Commission found that petitioner set excessive bail are cases in which the petitioner had appointed the Public Defender to represent the defendant, without apparent effect.
*172In short, the record does not show that, in failing to comply with the requirements of CPL 170.10 (3) and (4) (a), petitioner intended to, or did in fact, make the practical plight of indigent defendants significantly worse. Of course, this does not excuse his noncompliance; the rights of which the defendants should have been advised are very important ones, and petitioner should not have assumed that he was merely omitting an empty ritual. But to err in this way is not the same as deliberately depriving defendants of counsel in order to assure that bail rulings are not challenged.
I have thus concluded that the Commission’s two main charges—the failure to inform defendants of their rights and the setting of high bail—are not parts of a single pattern of misconduct, but separate offenses, quite different in their gravity and their consequences; and I am satisfied that petitioner’s failure to comply with CPL 170.10 would not, by itself, warrant a sanction more severe than censure.
I am much more troubled by petitioner’s practices in setting bail. The Commission has identified more than a few instances of bail levels that are startling on their face: $25,000 on a charge of trespass; $25,000 on charges relating to the improper operation of a bicycle; $20,000 on a charge of possession of marijuana; $25,000 on a charge of loitering and jaywalking—the list goes on. When more closely scrutinized, some of the cases seem less egregious; some of the defendants may have been more serious malefactors—and thus perhaps more likely to abscond—than the relatively petty charges against them suggest. But the record contains at least one real horror story, the Russell case: a young man with no criminal record and strong community ties, arrested for loitering (in what he testified before the Referee, without contradiction, was merely a mixup by police officers), was remanded to jail in lieu of $10,000 bail.
It is possible to infer from this record that petitioner used very high bail, improperly, to give a brief taste of jail to defendants he thought would benefit from it; and also that in so doing he inevitably made occasional misjudgments that caused severe and unjustified hardships. This gives me serious pause. Yet I conclude, essentially for the reasons stated by Judge Read, that it would be a mistake to remove petitioner from the bench solely or primarily because of his bail decisions. Indeed, the Commission conceded at oral argument that it would be hard-pressed to justify removal based on the bail decisions alone. Bail decisions are discretionary, and judges should not be disciplined *173for exercising their discretion, even where they have repeatedly exercised it poorly. It seems that in every case except the Russell case respondent is able to present an argument (though often not a very convincing one) in favor of his bail decision. Issues like these are better scrutinized on appeal or habeas corpus than in judicial disciplinary proceedings.
I find the Commission’s charges relating to matters other than the right to counsel and bail to be of relatively little moment. The accusation that petitioner “coerced” guilty pleas seems to me redundant of the charge that he set excessive bail. A high level of bail can indeed be a very effective spur to a guilty plea, but I cannot see what other conduct of petitioner in these cases can fairly be called “coercive.” And the remaining acts of which the Commission complains are, as Judge Read points out, simply isolated cases of legal error.
As the majority notes, petitioner’s response to the Commission’s charges was most unfortunate. He might have spared himself much of his present trouble had he reacted to the Commission’s investigation by saying, in substance: “I’m sorry. I made mistakes. I won’t do it again.” He reacted instead with outraged defiance, and with an ill-judged, and wholly unsuccessful, attempt to show that his disciplinary problems stemmed from an unholy alliance among the Commission’s staff, the Commission’s Referee and the American Civil Liberties Union. I thus agree with the majority that petitioner’s lack of contrition may be taken into account here. But it does not, in my view, more than balance the mitigating factors summarized in Judge Read’s opinion—evidence indicating that petitioner has been, in many important respects, quite a good judge.
While both absence of contrition and mitigation are relevant, I do not believe that either should be the decisive factor here, or in most cases involving judicial discipline. The central issue must be whether the petitioner’s conduct was sufficiently bad to warrant his removal from the bench. In this case, I conclude by a narrow margin that it was not, and I therefore dissent from the Court’s decision.
Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur in per curiam opinion; Judge Read dissents in a separate opinion in which Judge Graffeo concurs; Judge R.S. Smith dissents in another opinion.
*174Determined sanction accepted, without costs, and Henry R Bauer removed from the office of Judge of the Troy City Court, Rensselaer County.