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Judge's jailing of 20 in cell phone flap upheld

A Niagara Falls City Court judge who jailed 20 defendants after a cell phone or wristwatch alarm went off in his court last year was acting within his judicial authority, a federal district judge has ruled.

U.S. District Judge William M. Skretny on Monday dismissed a suit brought by five defendants against Niagara Falls City Judge Robert M. Restaino.

"Under New York State law, judges have the power to punish a person for criminal contempt for the kind of disturbance which disrupted the Niagara Falls City Court on March 11, 2005," Skretny wrote in his decision, filed Monday.

The lawyer for the five defendants, David G. Jay, said he plans to appeal the decision.

"We're disappointed that he found that [Restaino's judicial immunity covered his actions], but we're going to take this to the Court of Appeals and see how they view it," Jay said.

Restaino's clerk said the judge would not comment and referred a reporter to Sharon S. Townsend, administrative judge for the Eighth Judicial District of Western New York.

Townsend said she couldn't comment.

The incident started when a wristwatch alarm or cell phone rang several times in Restaino's court March 11, 2005, during a session of domestic violence court, according to news reports and the suit.

Cell phones are barred in Niagara Falls City Court and in most area courtrooms.

Restaino became agitated at the disruption and tried to determine its source, but no one admitted owning the offending device.

As the defendants went before Restaino that morning, the judge set a higher bail amount for them on the grounds that they hadn't cooperated in his search for the culprit.

About 20 people spent an hour or more in the Niagara County Jail in Lockport as a result, until Restaino changed his mind.

Five of the defendants whose bail was raised filed suit against Restaino on July 11.

The suit complained that Restaino only questioned the defendants -- not court officers or lawyers in the room -- and that he left the bench to personally search one of them.

The five who sued -- Mark E. Glavin, Joseph R. McCarthy, Marcellus Overton, Martha R. Seaberry and Dedrick G. Williams -- were seeking at least $10,000 in damages.

The case hinged on whether Restaino was acting under his judicial authority when he searched for the noise source and raised the bail.

It's not clear whether Restaino will face punishment from the State Commission on Judicial Conduct for his actions.

Robert H. Tembeckjian, the commission's administrator, said he could not comment on whether an investigation has been launched.

e-mail: swatson@buffnews.com

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