STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE In the Matter of the Application of DECISION, ORDER AND JUDGMENT TOWN OF CHEEKTOWAGA, Index No.: 2018-85 Petitioner, For a Judgment Pursuant to New York CPLR Article 78 vs. P, ROGOWSKL all 1: i. ?3155:?4 Respondent. SEP i it 2013 ERIE COUNTY Appearances: PHILLIPS LYTLE LLP Kenneth A. Manning, Esq. Craig R. Buoki, Esq. Attorneys for the Petitioner One Canalside 125 Main Street Buffalo, NY 14203 James Ostrowski, Esq. Attorneys for the Respondent 63 Newport Avenue Buffalo, NY 14216 Mark Montour, SC. The petitioner, Town of Che?elctowaga, commenced this Article 78' proceeding seeking to enforce New York Public-Officer Law which. provides that. a public .of?cez.?in New York State becomes '-automatically vacant-upon the o?i?eehoideris,conviction of-"fa crime involving a violation of his oath of of?ce?. The. respondent, James. P. 'Rogowski was elected on November 2017, to- the. of?ce of Tom of .Cheektowaga Councilmember. The-13m of of?ce ?(as scheduled'to runjfor January 1, 2018,;through December 3-1., 2021. on February 23,- ..201 Erie County 'CourtJ Udge- Kevin Garter issued an Order'ofProteCtion requiring Rog?owski, ameng- other things, to stay away from. his wife: and. refrain from any communication or contact with .her, TheIOrder of Protection-re?ects was present for-the Order?s. entry? was personally servedwiththe Order'in Family- Court, and-was the'Ccurt'of the isSuancie-zand contents of the Order. Within-?hours- after issuance-ofthe mandateof the Court, Rogowaki was arreated and. charged With: Criminal centei?pt in the ?rst degree (class-- Felony) and second-degree menacing (class A Miederneanor). The charges resulted from-an- incident on the New York- State Thruway whereit ?was alleged that Rogowski aggreS'siVelypursued- his. Wife-in his vehicle by following eloSEI'y; honking thefhom and yelling at his wife through'the. open'window, all while he rode beSide his-Wife?s; car; This-would hate all been dbne in violation -'o"f'the complete ?stay away? 'Order-oflProtection. An-arres't was effectuated-in the "Town. of Woof: Seneca and: the case-Was ultimately-transferred to the Integrated Domestic Violence'CourL. on September 2018, before State. Supreme Court Jusriee Deborah A. Ro'goWSki p?led Ignilty'to attempted criminal contempt in "the second-degree in violation of Penal Law 525215.500), asinodifiedby Penal (class Misdemeanor). On September. 11, Cheektowa?ga; Town Board adopted a resolution-concluding that plea to. the crini'inel charge caused him to Vacate. his public of?ce ?35 a counciimer'nber purSuant to the operation of POL RegowSki refused an opportunity to resign and the petitioner noter seeks relief of this Court pursuant to CPLR Article 78' to: (I). determine ?int. Rogowski lacks jurisdiction to continue to serve in ?the; public. of?te of councilmember for the Town of 'Cheektowaga as the of?ee became operation. of POL upon-his plea of guilty to the crime of attemptedcriminal contempt in the second degree and; (2) mandate Rogowski to Vacate the public of?ce of conncilmember- for the Town of' Cheekto?waga.- In reaching a-decision this Court has reviewed. and considered-the Order'to' Show Cause dated September "13, 20158; Petitioner?s Veri?ed Petition executed on 2018; by the. Supervisoir' of the? Town of Cheektowaga; in Petitioner?s Memorandum of'Law in support Of'th'e Petition; _..Respondent?steri?edAnswer andicounterdaim; Resp?ndentis? Memorandum ?nd .0- Oral argument heard onSeptember 2018', from (Craig. R. Bucki,_ 'E'squ of counsel) in .Support- of the petition. and James: Os?trowski,_ Esq. appearing in opposition to. the petition arid-- in support ef- the Respondent?s Counterclaim. mama Public Of?cers is-a self-exeCutiit'g statute, which provides that-an office is deemed- V?Ga?i upon ?iconniotion .a crime involving a violation of his oath of office.? A misdemeanor conviction for conductoutside. the 'lineof duty will he considered a crime. involving a'tdola?on of one?s oath of of?ce- under Public 'O?icers Law only" if the violation is apparent from the Penal Late? sde?nition of the crime. See," Matter of ana- 1: Carroll, .10 569 (2003); See-also, Matter ofDu?jz 13' Word, 31 In addition, that Section is applicable to misdemeanors, an element of Which includes intentional conduct indicative of a-Tlacic' of moral integrity?, Id, at: 1'35. dismissal is, therefore, justi?ed in-' circumstances where the misdemeanor for which the of?cer is convicted ?d_errionsrrat[e51 a lack of moral integrity,? namely,- onejthat- invol?ves- a ?Wili?ii deceit or. a- caicLiiated disregard for honest dealings?, Id. Under Fania and Dn?jz, the proper inquiry is "whether Rogowski' Was convicted. of a misdemeanor which, on. its-face, demonstrates a lack of moral integrity involving a Calculated disregard for honest dealings, not whether the prohibited.conductinay have had ai-part'ieular effect. The crime of criminal-contempt in the second degree in introl'ves? intentional disobedience or. resistance to the law?il process or other-mandate ofa-court?. A person is guil?r of tin-attempt to'soomrnit, a, crime, aS-fdc?ned: under ?l 10.00 of the Penal Law, with intent to commit a. crime, he engages in conduct which tends'to effect the 'ccni'rnission.'of such-crime?. In other. words, an attempt-is akin to the last proximate, or ultimate step toWard Commission of An'Order'of Protection is a mandate-?of the court. Simply put it'is a'command, a. directive, a decree ora dictate- of the court: The signi?cant in casesinvolaing allegations of'domestic Herein, Family Gonn.Jud'g'e Carter issued a'eoniplete Staylaway Orderof Protection. in" fatter of Rogoaiski?s wife, The Order'was perSonally servedon RogoWski {in .'open court, after the. Family Court Judge speci?cally. advised Rogowski of the terms and contents of the.0rder.- The Order cf Protection-plainly dictated-that..Rogowski was'to ?stay astray? from his wife, to avoid any communication: with his Wife and refrain from any Criminal activity including ?menacing? against'his'wife. Prior to taking the of?ceofconncilmember for-the'Town of Cheektowaga Ro'gowski. took an oath to ?support the-.C0nstitution of the State of New Yerkii and ?uphold the laws or New York". By pleading. guilty to the 'ch'a'rge- of attempted crimma'l contempt 'Rogowski demonstrated a ?Coleuiated disregar of a mandate of the- Court'. The attempted disregardfof?the. Court Order underscmes the respondent?s l'aek of'moral integrity? "implying that-he ?lacks the" Capacity to swear honestly orlhas' no Set-ions intention of abiding- by [the] promises? of his oath of of?eeg, such-"that ?the very act of taking the oath is rendered meaningless.? 13.4. Stated another Way; One Who engages in conduct likely? to violate-'a- court-order is Someone wanting in moral integrity. A review of the elements o'fthe' crime of attempted-criminal.contempt under Penal Law asmodi?ed by Penal Law ?110.00, indicates clearly that it is ?crime involving a violation-of [an-of?cer?s] oath of of?ce.? .PursuantNew-York Penal Lawr person is guilty of an attempt to commit a crime When, with. intent'to commit acrime', he or she-engages in conduct which tends to effect the commission of such 'criine.? Conductwhich tends toeffe'ct- the commission of a'-eri1ne-- means oond'uct'nrhieh comes dangerously close. or very near- to the completion- of the intendedcrime; If 'a pers'cin intends to-commit-a crime andenga?ges which carries his or her purpose.- forward within dangerous proximity tome-completion of" the intended :eritne, heor' she is guilty of an. attempt to commit-that crime; It-does notimatt'er that the intended-Grime nemal'ly completed. See; Charges to Jury in. Ctim Case in NY 4:14. The moment. the respondent- pled guilty to" the criminal. offense -of'_atten1pted' oti'minai' contempt, involving e'viOIetiUn of [an of?cer?s] oath. ofof?cet?.? his-of?ce- as a member of the Town Board-for the Town of 'Cheektoweiga became vacate. As such. the'respondent leeks jurisdiction to continue: in the public. o?ice as .eouneilmetnber' by operation is hereby; ORDERED, AND petitioner?s petition-is. granted and the nines; R. of?ee of councilme'mber. for the Town of 'Cheektowaga; ".It ORDERED, ADJUDGED AND ioountetei'aim is hereby dismissed SEP 1 20:13 MARK A. MON-TOUR,