Joseph G. Makowski is expected to resign his seat as a State Supreme Court justice -- possibly in the next few days -- amid a state judicial investigation and a potential grand jury probe of written claims he made trying to clear a friend in a drunken-driving case, several legal sources have told The Buffalo News.
For at least three months, the State Commission on Judicial Conduct has been asking local law enforcement officials what they know about the affidavit Makowski signed after the Sept. 2 DWI arrest of former prosecutor Anne E. Adams.
Makowski filed that affidavit as a witness after having been with Adams in the hours before her arrest. In that statement, dated Sept. 11, Makowski repeatedly stated that nothing in Adams' behavior suggested she couldn't drive safely home from a downtown Buffalo restaurant that night.
Several witnesses, though, have given authorities statements that suggest Adams showed obvious signs of being intoxicated, both in her manner and in her driving.
Adams was charged with aggravated DWI, accused of having a blood-alcohol content of 0.19 percent at the time of her arrest. That's more than twice the state's legal limit.
A call to Makowski's attorney, Joel L. Daniels, was not returned.
An Erie County grand jury is expected to investigate both Makowski and Adams, probably sometime in the next couple of weeks, legal sources have said. That probe, of course, would be called off if any plea deals are made in the case.
A plea deal that might result in a misdemeanor admission by Makowski probably would not save his seat on the bench, legal sources say. But such a deal could keep him from being permanently disbarred. Any decision on disbarment would be made by an attorneys grievance committee, an arm of the State Appellate Division.
Such a plea deal also could end the Commission on Judicial Conduct probe.
The commission has jurisdiction over 3,400 judges and justices of the state Unified Court System. It investigates about 1,500 complaints per year and recommends a wide range of actions against any jurists found guilty of misconduct through formal hearings.
Adams' former attorney had filed the judge's signed statement as part of a motion to dismiss the DWI case against her in Town of Hamburg Court. That attorney eventually withdrew that motion.
"Ms. Adams has a 20-year, high-profile career as both a prosecutor and defense attorney," Makowski wrote in his affidavit. "She also holds a full-time faculty position at UB Law School. These charges, even if resulting in an acquittal, would seriously damage her reputation in the community and future professional prospects. For these reasons, I believe a dismissal in the interests of justice is warranted."
Investigators are studying the following possible discrepancies between Makowski's affidavit and witnesses' statements to authorities, according to sources close to the case:
*"When we left the restaurant, I walked Ms. Adams to her car," the affidavit states. "There was nothing unusual in her speech, gait or mannerisms. She was entirely appropriate."
An eyewitness, however, has told law enforcement officials that Adams was stumbling as she headed for her car and that the man with her was holding her to keep her from falling.
*"After speaking with Ms. Adams for another five minutes, I told her I had to get on the Skyway to my mother's house," the judge wrote. "She told me she was heading to her home in Angola on the same route. I drove over the Skyway to South Buffalo with Ms. Adams' vehicle in my continuous presence."
But an eyewitness told authorities Makowski also got into Adams' car, and the two sat inside the car for about 20 minutes. Adams then pulled her convertible into another part of the Shanghai Red's restaurant parking lot, near the marina.
That is where she backed into a parked car before pulling away.
A Buffalo police officer, parked nearby, noticed what happened and pulled up alongside her vehicle. He recognized Adams and said to her, "Counselor, where are you going?" a law enforcement source told The News.
The judge was in Adams' car at the time, the same source said.
Adams then parked her car and went into the restaurant to try to find out who owned the car she had struck with her vehicle. A restaurant employee discovered the car belonged to another employee.
A few days later, Adams sent a payment of several hundred dollars to the employee to cover the damage.
*"We traveled along Route 5, which is now under construction," wrote Makowski, who was following her in his car. "Her driving was entirely appropriate. She drove at the appropriate speed, she negotiated turns and tight construction lanes properly."
But another driver later reported an erratic driver in that area. Hamburg Police Officer Vincent Pupo III pulled Adams' vehicle over when he saw her convertible weaving from lane to lane, nearly striking a guardrail, near Ford Motor Co.'s Buffalo Stamping Plant, according to a police report.
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