People v. Garson

*619G.B. Smith, J. (dissenting in part).

The primary issue here is whether the Rules of Judicial Conduct may be used as criminal statutes to prosecute a judge. I agree with the trial court and the Appellate Division that the Rules are not criminal statutes. Thus, the evidence before the grand jury was legally insufficient to sustain 8 of the 11 charges in the consolidated indictments (Nos. 3515/2003 and 5332/2003).

Facts

The People assert that there was an ongoing improper attorney-judge relationship between Paul Siminovsky and defendant over a period of three years, including lunches, drinks, money and cigars in exchange for ex parte advice on cases pending before the judge, client referrals, and favorable treatment in the courtroom.

From approximately October 1, 2002 to March 4, 2003, defendant had ex parte conversations with attorney Siminovsky about the Avraham Levi case, a divorce case pending before him. The conversations involved advice about how to proceed in the case, statements concerning how defendant would rule on the distribution of property between the parties, and suggestions about what questions Siminovsky should ask the witnesses. The People claim that these conversations violated 22 NYCRR 100.3 (B) (6).1

On March 4, 2003, defendant accepted two boxes of cigars from Siminovsky for giving him advice in the Levi case. According to the People, defendant violated Judiciary Law § 182 when he accepted the cigars. The People claim that the defendant also *620accepted money for referring clients to Siminovsky on five separate dates, including October 9, 2001; October 31, 2001; September 5, 2002; November 15, 2002; and March 10, 2003. Client referrals from a judge to an attorney are alleged to be violations of 22 NYCRR 100.2 (C).3

Also from January 1, 2002 through March 12, 2003, defendant accepted lunches, beverages and cigars from Siminovsky in exchange for “assigning law guardianships, and giving ex parte advice to Siminovsky concerning cases that were pending before defendant.”

In February 2003, during the Avraham Levi divorce case, the Kings County District Attorney began a video and audio surveillance of the judge’s robing room. During that surveillance, defendant and Siminovsky discussed the following: subpoenaing an expert witness, the fact that the defendant was not going to order the sale of the house, that Levi would get exclusive use of the home and that Levi would win the case, even though he did not deserve it.

In early 2003, the District Attorney’s office arrested Siminovsky who agreed to cooperate with the prosecutor. On March 4, 2003, Siminovsky gave defendant two cigars which had been purchased by the District Attorney’s office. Unbeknownst to Siminovsky, the District Attorney continued to conduct video and audio surveillance of defendant’s robing room.

On March 10, 2003, Siminovsky, wearing a recording device, handed defendant 10 $100 bills which had been given to him by *621the Kings County District Attorney. Defendant placed the money in his pocket. However, shortly thereafter, he called Siminovsky on his cell phone and asked him to return. After conferring with the District Attorney, Siminovsky returned to defendant’s chambers.

Defendant tried to return part of the money. Instead of the money, defendant asked that Siminovsky write a check for Robin Carson’s (defendant’s wife) judicial campaign which had experienced a shortfall. In the end, defendant kept the $1,000, and Siminovsky agreed to write a check. Defendant was arrested on March 12, 2003. At the time of arrest, defendant had the $1,000 in his pockets.

Indictment No. 3515/2003 charged defendant with one count of receiving reward for official misconduct in the second degree (Penal Law § 200.25)4 for accepting a box of cigars, five counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) for referral fees, one count of official misconduct (Penal Law § 195.00 [1]) pertaining to ex parte advice to Paul Siminovsky (Penal Law § 195.00 [l])5 and one count of receiving unlawful gratuities (Penal Law § 200.35).6

Indictment No. 5332/2003 charged defendant with one count of bribe receiving in the third degree (Penal Law § 200.10)7 for *622agreeing to provide favorable treatment to Siminovsky. For accepting the cigars concerning the advice on the Levi case, defendant was charged with two counts of official misconduct (Penal Law § 195.00 [1], [2]). By indictment No. 5332/2003, defendant was also charged with a third count of official misconduct (Penal Law § 195.00 [1]), “which superseded the count of official misconduct in indictment number 3515/03.”

On September 9, 2003, Supreme Court, Kings County consolidated indictment No. 3515/2003 with indictment No. 5332/2003 and dismissed as superceded the count of official misconduct charged in indictment No. 3515/2003.

Motion to Dismiss

On December 15, 2003, defendant moved to dismiss the indictments as based upon legally insufficient evidence. Defendant argued that judicial rules of conduct cannot serve as predicates for criminal charges. Also, defendant argued that receiving the box of cigars was not compensation within Judiciary Law § 18.

On April 29, 2004, Supreme Court, Bangs County, dismissed six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) finding:

“[I]n any prosecution for receiving reward for official misconduct, the evidence must identify a duty the defendant had as a public servant, and must establish that he or she violated that duty and thereafter solicited, accepted or agreed to accept a benefit for having done so. . . .
“In sum, although the Chief Administrator of the Courts has properly promulgated enforceable ethical standards, I hold that he has not discharged, nor has he attempted to discharge, the legislative responsibility of defining elements of crimes. Accordingly, evidence presented to the grand jury that the defendant violated the Rules of the Chief Administrator is legally insufficient to establish that he violated a duty he had as a public servant within the meaning of the Penal Law. The grand jury evidence, therefore, fails to establish an essential element of each of the counts charging the crime of receiving reward for official misconduct in the second degree.” (4 Misc 3d 258, 261-267 [2004].)

*623In reference to official misconduct (Penal Law § 195.00), there were three charges. Two were dismissed as based upon legally insufficient evidence and one was sustained as based on defendant’s acceptance of a box of cigars “as compensation” for ex parte advice on the Avraham Levi divorce case pending before him. His acceptance of the box of cigars was in violation of his duty not to accept compensation for engaging in authorized or unauthorized conduct.

On the charge of receiving unlawful gratuities, the motion court wrote:

“A review of the testimony and exhibits presented to the grand jury reveals that the evidence was legally sufficient to support the count charging the defendant with the class A misdemeanor of receiving unlawful gratuities in that he allegedly accepted benefits from an attorney for having engaged in official conduct as a judge which he was authorized to perform, and for which he was not entitled to any special or additional compensation (Penal Law § 200.35).” (4 Misc 3d at 268.)

Supreme Court concluded, “The case will therefore proceed to trial on the top count of bribe receiving in the third degree, on one count of official misconduct, and on one count of receiving unlawful gratuities.” (Id. at 277.)

On April 25, 2005, the Appellate Division, Second Department affirmed, writing:

“The court properly dismissed counts one through six of indictment No. 3515/03, charging the defendant with receiving reward for official misconduct in the second degree. An indictment in which the defendant’s duty as a public servant, an essential element of the crime of receiving reward for official misconduct (Penal Law § 200.25), is defined solely by reference to the Rules of Judicial Conduct, specifically, 22 NYCRR 100.2 (C) and 100.3 (B) (6), is insufficient (see People v La Carrubba, 46 NY2d 658, 665 [1979]).
“The court also properly dismissed count three of indictment No. 5332/03, charging the defendant with official misconduct (Penal Law § 195.00 [2]), as multiplicitous, since there is no fact to be proven under that count that is not also required to be *624proven under count two of the same indictment” (17 AD3d 695 [2005] [citations omitted]).

On June 24, 2005, the Chief Judge of the Court of Appeals granted leave to appeal to the People. The People seek to reinstate six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) and one count of official misconduct as defined by Penal Law § 195.00 (2).

Discussion

The New York State Constitution, the Rules of Judicial Conduct and the Penal Law do not authorize a prosecutor to charge a judge with crimes by alleging violations of the Rules of Judicial Conduct.

Constitution and Preamble of Rules of Judicial Conduct

Article III, § 1 of the New York State Constitution states, “The legislative power of this state shall be vested in the senate and assembly.”

“Th[e] legislative power cannot be passed on to others. What is legislative and what [is] administrative is not always easy to define, but the difficulty is not apparent here” (see Darweger v Stoats, 267 NY 290, 305 [1935]). “Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses” (see id. at 306). The clearest reading of 22 NYCRR part 100 is that it consists of rules governing judicial conduct, not criminal statutes passed by the Legislature, the only body in this state that can make conduct criminal.

The preamble of the Rules of Judicial Conduct makes clear that they were not intended to be criminal statutes:

“The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The rules are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
“The rules are designed to provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies. They are not designed or intended as a basis for civil liability or criminal prosecution” (emphasis supplied).

*625The sections of the Rules of Judicial Conduct used in the criminal prosecution of this defendant are 22 NYCRR 100.2 (C) and 100.3 (B) (6). There is nothing in the preamble to suggest that criminal prosecution can result from any violation of the Rules. Further, the preamble explicitly states that criminal prosecution should not result from the Rules. Consequently, defendant was not on notice that the rules of conduct could result in criminal prosecution. Notice, of course, is an essential requirement prior to prosecution (see La Carrubba, 46 NY2d at 663, supra).

The prosecution has charged the defendant twice for the same crime. Defendant allegedly accepted the cigars for giving ex parte advice in the Levi case. The advice and the compensation were, however, all one offense. The People cannot charge official misconduct once for the advice and a second time for the compensation because the offense was receiving compensation for giving advice. Thus, only one count of official misconduct is warranted based upon Judiciary Law § 18 where the judge did “receive . . . compensation for giving his advice in an action . . . pending before him.”

Grand Jury Charges and Legally Sufficient Evidence

The prosecutor charged the grand jury as though the Rules of Judicial Conduct were criminal statutes. On May 20, 2003, the prosecutor charged the grand jury on the rules that govern judicial conduct, not on the criminal law, reciting, verbatim, two provisions of the Rules of Judicial Conduct. They were the following:

22 NYCRR 100.2, which is headed: “A Judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Subdivision (C) states:

“A judge shall not lend'the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

22 NYCRR 100.3, which is headed: “A judge shall perform the duties of judicial office impartially and diligently.” Subdivision (B) (6) states:

“A judge shall accord to every person who has a legal interest in a procéeding, or that person’s lawyer, the right to be heard according to law. A *626judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except: . . .
“Ex parte communications that are made for scheduling or administrative purposes that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond. . . .
“A judge, with the consent of the parties, may confer separately with the parties and their lawyers on agreed-upon matters.”

Concerning indictment No. 3515/2003, the prosecutor instructed the grand jury that it could indict the defendant for violating the Rules of Judicial Conduct if it determined that defendant had accepted cigars, accepted money, referred persons to Paul Siminovsky or gave advice.

Pursuant to CPL 190.65, a grand jury indictment is authorized as follows:

“1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.”

Legally sufficient evidence is defined under CPL 70.10 (1) as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.” Three crimes alleged in the consolidated indictment are authorized because they charge violations of the *627Penal Law. The Rules of Judicial Conduct were not meant to serve as elements of criminal statutes or as criminal statutes. The charges given to the grand jury by the prosecutor indicate that the People are alleging both violations of the Penal Law and violations of the Rules of Judicial Conduct in prosecuting defendant.

The Rules of Judicial Conduct are rules of ethics and not criminal statutes or predicates for criminal statutes. There has been no legislative enactment allowing for their use in criminal prosecution and the Rules have not been subjected to any standards of proof. Further, the burden of proof for violations under the judicial rules of conduct is “preponderance of the evidence” whereas, for felonies, it is beyond a reasonable doubt (see Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251, 253 [1998]).

In Matter of Stern v Morgenthau (62 NY2d 331, 333 [1984]), this Court determined that the grand jury’s purpose and investigations would not be thwarted if the prosecutor is not allowed to have access to “confidential records of the State Commission on Judicial Conduct” which developed as part of the Commission’s investigation into misconduct by two judges. Specifically, this Court held that the grand jury and the Commission “serve quite different purposes” (see id. at 334). The Court illuminated the difference with the following words:

“The Grand Jury is drawn from the population at large and charged with the duty of investigating and preferring charges against those suspected of criminal conduct while the Commission is composed of members appointed for fixed terms as defined in the Constitution and charged with the duty of investigating misconduct in the judicial branch of government and imposing discipline if misconduct is found. Thus, while the two bodies serve similar functions, they are separate and independent. One is responsible for investigating crime; the other for disciplining Judges.” (Id.)

The difference addressed in Stern between the grand jury and the Commission on Judicial Conduct is relevant to the case at bar. In order to prosecute defendant under the consolidated indictment, the People must show that defendant violated duties as a public servant defined in the Penal Law and separate and apart from the rules that govern judicial conduct. The indictment repeatedly makes reference to “being a public servant.” *628However, except for the charge referred to in footnote 2 (at 619), there is no reference to what duties in the criminal statutes defendant violated.

The People argue that the Rules put judges on notice that if they engage in “official misconduct,” they will be held accountable for their actions through criminal prosecution. Further, failure to prosecute judges for engaging in illegitimate actions will have a negative effect on the public’s confidence in the judiciary. According to appellant, defendant failed not only in his duty as a public servant but also in not complying with both the judicial rules of conduct and the criminal statutes. Defendant asserts that there are no cases which hold that a judge can be criminally liable for failure to comply with the judicial rules of conduct. Defendant argues, “Simply put, that a judge has a duty to comply with the Rules does not mean that compliance with those Rules is enforceable under the Penal Law.”

There appear to be no statutes and no cases that hold that a judge can be held criminally liable for failure to comply with the Rules of Judicial Conduct. There is no question that the prosecutor has amassed a great deal of damning evidence against the defendant. However, what is at issue is whether or not Rules of Judicial Conduct (22 NYCRR part 100) can be used as a predicate for criminal prosecution, not whether or not there is enough evidence to prosecute the defendant.

One count of bribe receiving in the third degree (Penal Law § 200.10) for “accepting benefits from Siminovsky upon an agreement or understanding that defendant would provide Siminovsky with favorable treatment” is legally sufficient. Second, defendant allegedly accepted a box of cigars and two loose cigars for providing advice on the Levi divorce case which was pending before him. As a result of these actions, the charge that the judge violated Penal Law § 195.00 by accepting compensation for giving advice is appropriate (see La Carrubba, 46 NY2d 658, 664 [1979], supra). Thus, one charge of official misconduct is appropriate. Third, the evidence was legally sufficient to establish one count of receiving unlawful gratuities in violation of Penal Law § 200.35 because defendant accepted the cigars for advice concerning the Levi divorce case. However, the evidence was legally insufficient to sustain the other six charges pursuant to Penal Law § 200.25.

*629 People v La Carrubba

Relying on People v La Carrubba (46 NY2d 658, 664-665 [1979]), both the Supreme Court and the Appellate Division found that the Code cannot be used in such a manner. In La Carrubba, this Court held:

“We find nothing in section 195.00 of the Penal Law which suggests that by the device of incorporation by reference a prosecutor may initiate and take charge of proceedings to enforce the Code of Judicial Conduct as such. To accept the proposition advanced by [appellant] District Attorney would be to countenance the institution of criminal proceedings for any alleged violation of the provisions of the code. We perceive no intention on the part of the Legislature to cloak the District Attorney with responsibility for compelling conformity with the Code of Judicial Conduct.” (46 NY2d 658, 664-665 [1979], supra.)

In La Carrubba, the issue was enforcement of Penal Law § 195.00 (2) for official misconduct by a judge. This Court determined that judges can be prosecuted for criminal acts but not on the basis of the judicial rules of conduct which were never meant to serve as part of the penal code (see 46 NY2d 658, 663 [1979], supra). In this case, judges are not put on notice that misconduct under the Rules of Judicial Conduct could serve as a basis for criminal prosecution (see id,.). Thus, as the Supreme Court has found, the prosecution in the case at bar is precluded from imposing criminal penalties under Penal Law § 200.25 based upon 22 NYCRR 100.2 and 100.3. While the Rules of Judicial Conduct are meant to include sanctions which can include removal from the bench (see Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349, 356 [1984]; Matter of VonderHeide [State Commn. on Jud. Conduct], 72 NY2d 658, 660-661 [1988]), there is no indication that the Rules were meant to be used as a predicate for criminal sanctions (see La Carrubba, 46 NY2d 658, 664-665 [1979], supra; People v Stuart, 100 NY2d 412, 419 [2003]). As a result, the six charges of receiving reward for official misconduct in the second degree, as outlined by the Supreme Court, were properly dismissed.

Finally, the majority refers to language in La Carrubba that “the Code of Judicial Conduct that existed in 1974 was merely ‘a compilation of ethical objectives and exhortations’ which were ‘[c]ouched in the subjunctive mood,’ ” adopted by the *630American Bar Association, then the New York State Bar Association and then “incorporated by reference in the respective rules of the Appellate Divisions.” (Majority op at 616.) Thus, the Code consisted of rules adopted by the Appellate Divisions. Here, the Rules of Judicial Conduct were promulgated by the Chief Administrator of the Courts and designed to “provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies.” (22 NYCRR part 100 [preamble].) The Legislature thus directed the Chief Administrator of the Courts to adopt rules of conduct, not criminal statutes.

New York State Constitution, Article VI, § 20 (b) and Judiciary Law § 212 (2) (b)

The overriding principle that governs in this instance is whether it was the legislative intent to make criminal judicial conduct based upon the Rules of Judicial Conduct. The principle in effect in this case, as has been true in other cases, is that “legislative intent is the great and controlling principle” (see Matter of Theroux v Reilly, 1 NY3d 232, 244 [2003]; Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]; Stoats, 267 NY 290, 306 [1935], supra). There is no evidence that the Rules of Judicial Conduct were meant as a predicate for criminal prosecution.

New York Constitution, article VI, § 20 (b) states in part, “Judges and justices of the courts specified in this subdivision shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.” No evidence is submitted that indicates any Judge of this Court intended the Rules of Judicial Conduct to be a portion of any criminal statute without specific language from the Legislature designating such conduct a crime. Judiciary Law § 212 (2) (b) states that the Chief Administrator of the Courts shall “[promulgate rules of conduct for judges and justices of the unified court system with the approval of the court of appeals, in accordance with the provisions of section twenty of article six of the constitution.” Again, no evidence is submitted that any Judge of this Court determined that a vote for the Rules of Judicial Conduct was a vote for a criminal statute or part of a criminal statute. Moreover, no evidence is submitted that the Legislature intended that by referring to the constitutional provision permitting the Chief Administrator of the Courts to promulgate rules of judicial conduct, it was also making such rules, which were to be promulgated in the future, crimes for which a prosecutor could indict.

*631Vagueness

Defendant was not on notice that violations of the Rules of Judicial Conduct would result in violations of the criminal statute. Therefore, it would be a violation of defendant’s due process rights if appellant’s arguments were accepted and the prosecution proceeded, with proof of crimes based on the Rules of Judicial Conduct.

A statute is unconstitutionally vague when it does not give “fair notice to those to whom [it] is directed” that their behavior may subject them to criminal prosecution (see American Communications Assn. v Douds, 339 US 382, 412 [1950]; People v Stuart, 100 NY2d 412, 418 [2003]). In People v Stuart, this Court laid out a two part test for determining whether a statute is void for vagueness. First, a court must determine “whether the statute in question is ‘sufficiently definite “to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” ’ ” (see 100 NY2d 412, 420 [2003], supra, quoting People v Nelson, 69 NY2d 302, 307 [1987]). Second, the statute must be reviewed to determine “whether the enactment provides officials with clear standards for enforcement” (see Stuart, 100 NY2d at 420, supra). “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement” (see Kolender v Lawson, 461 US 352, 357 [1983] [citations omitted]).

The Rules of Judicial Conduct state specifically, “They are not designed or intended as a basis for civil liability or criminal prosecution.” (22 NYCRR part 100 [preamble].) The stated purpose of the Rules alone renders specific rule's vague if used for criminal prosecution. There is nothing in the Rules themselves that remotely suggests criminal prosecution. In fact, the duties at issue are related to rules of conduct for the profession rather than criminal standards of official misconduct. Certainly, defendant was on notice that his conduct would violate sections of the Penal Law. He was also on notice that his conduct violated the Rules of Judicial Conduct which could lead to charges by the Commission on Judicial Conduct.

The words of the motion court that dismissed the charges on appeal here are entirely relevant:

“Section 20 (a) of article VI of New York’s Constitu*632tion provides that ‘Judges . . . shall ... be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.’ . . .
“Much like the Code of Judicial Conduct which it parallels, the Rules of Judicial Conduct part of the Rules of the Chief Administrator of the Courts (22 NYCRR part 100) is, in large measure, a compilation of ethical standards, goals, and aspirations that are stated in broad and general terms. Thus, for example, the rules provide that ‘[a] judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved’ (22 NYCRR 100.1), and that ‘[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary’ (22 NYCRR 100.2 [A]), and that ‘[a] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control’ (22 NYCRR 100.3 [B] [3]).
“The notion that rules like these can define an element of a crime is untenable. ...
“In light of both their language and their application, the two rules at issue here are problematic when employed to define an element of a crime. And, significantly, they were never meant to be used for that purpose.” (4 Misc 3d 258, 263-265 [2004].)

The Majority Decision

First, the majority asserts that the preamble of the Rules of Judicial Conduct which states, “They are not designed or intended as a basis for civil liability or criminal prosecution,” is not controlling and cites McKinney’s Cons Laws of NY, Book 1, Statutes § 122 in support of its position. Section 122 does not support the majority and states:

“The preamble or preliminary recitals of a statute are no part of the statute and do not control or af*633feet its terms, although they may be considered as an aid to interpretation when the body of the act is not free from ambiguity.”
“However, a preamble frequently contains recitals which illuminate the purpose and intent of the enactment. In fact, it is said to be the key which opens the mind of the lawmakers as to the mischiefs which are intended to be remedied by the statute, and it may sometimes be considered in determining legislative intent. Accordingly, the language of a preliminary recital may be considered as an aid to interpretation when the body of the act is not free from ambiguity, and a legislative declaration concerning public conditions is entitled to great respect though it is not conclusive.” (Statutes § 122, Comment [emphasis added].)

The underscored portion indicates that a preamble may indicate the intent of the Legislature. While we are not dealing with a statute here, even if section 122 applies, it supports the fact that the Rules of Judicial Conduct are not criminal statutes. It does so by its explicit words.

The majority indicates that since the language of the rules is “mandatory” (majority op at 616) rather than precatory, a person of reasonable intelligence is on notice of possible criminal prosecution. There is not a single case that supports the majority’s assertion that defendant was on notice that the Rules of Judicial Conduct would serve as the basis for a criminal prosecution. As a result, whether the word “shall” or “may” is used does not suffice for purposes of notice in relation to criminal prosecution (People v Stuart, supra [words not sufficiently definite for purposes of criminal prosecution]).

Second, a criminal prosecutor becomes the judge of when and how a rule of judicial conduct becomes criminal. The majority does not define the duties that can lead to criminal prosecution as opposed to sanctions by the Commission on Judicial Conduct. Does a judge now risk criminal prosecution when he or she advises a relative or friend that a particular lawyer is well suited to handle a case? Is a judge improperly exercising his or her authority when a recommendation is given to a law school? What if a judge recommends one school over another? Suppose a judge is on a not-for-profit board of directors and his or her name inadvertently appears on a notice of a fundraiser, a matter forbidden by the Rules? Should *634a judge refrain from all of these things because he or she lends the prestige of the office and promotes the interest of the judge or another person in violation of 22 NYCRR 100.2? Which rules subject a judge to criminal prosecution and which do not?

Third, the Commission on Judicial Conduct which is given constitutional authority in article VI, § 22 of the New York State Constitution to investigate and determine whether judicial conduct violates the Rules is now placed in a secondary position. Section 22 states in part:

“There shall be a commission on judicial conduct. The commission on judicial conduct shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law; and, in accordance with subdivision d of this section, may determine that a judge or justice be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the administration of justice, or that a judge or justice be retired for mental or physical disability preventing the proper performance of his or her judicial duties.”

Does the Commission on Judicial Conduct now wait to see if there is going to be a criminal prosecution before it acts? Conclusion

It is simply incorrect that judges are immune from the criminal law if the Rules of Judicial Conduct do not authorize a criminal action. This defendant, without reference to the Rules of Judicial Conduct, is being prosecuted for bribe receiving in the third degree (Penal Law § 200.10), official misconduct (Penal Law § 195.00 [2]) and receiving unlawful gratuities (Penal Law § 200.35).

For the foregoing reasons, I dissent in part and would affirm the dismissal of six counts of receiving reward for official misconduct in the second degree and one count of official misconduct.

*635Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents in part and votes to affirm in a separate opinion.

Order modified by reinstating six counts charging defendant with receiving reward for official misconduct in the second degree and, as so modified, affirmed.

. 22 NYCRR 100.3:

“A judge shall perform the duties of judicial office impartially and diligently. . . .
“(B) Adjudicative responsibilities. . . .
“(6) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding.”

. Judiciary Law § 18 states: “A judge or other judicial officer shall not demand or receive a fee or other compensation for giving his advice in an action, claim, matter, motion or proceeding pending before him, or which he has reason to believe will be brought before him for decision.”

Count three of indictment No. 5332/2003 charged defendant with the crime of official misconduct in violation of Penal Law § 195.00 (2) committed on March 4, 2003 when defendant “refrained from performing a duty pertaining *620to his receipt of a box of cigars from Paul Siminovsky.” In responding to a demand in a bill of particulars to identify the duty that defendant refrained from performing, the People alleged, “The defendant refrained from performing the duty that was imposed upon him by Jud. L. § 18 to refuse the box of cigars as compensation for providing advice to Siminovsky about the Levi divorce case and to return such compensation.”

. 22 NYCRR 100.2:

“A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
“(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
“(B) A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.
“(C) A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.”

. Penal Law § 200.25:

“Receiving reward for official misconduct in the second degree. “A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.”

. Penal Law § 195.00:

“Official misconduct
“A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit: “1. He commits an act relating to his office but constituting an unauthorized exercise of official functions, knowing that such act is unauthorized.”

. Penal Law § 200.35 states,

“A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.”

. Penal Law § 200.10, a class D felony, states,

“A public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, *622opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.”