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Sardinia town judge mishandled ‘dangerous dog’ hearing, commission finds

The attorney and judge argued and talked over each other. Their voices rose.

One thought the case was over. The other did not.

“No, you cannot cut me off in the middle of my case, judge,” attorney Matthew A. Albert said at the August 2014 hearing, as he pressed to call more witnesses on behalf of a dog owner whose dog was accused of lunging at an Erie County sheriff’s detective.

“You were done,” Sardinia Town Court Justice Gene R. Heintz replied.

The judge had already declared the dog dangerous.

“You were done, sir. The process was completely finished, sir,” the judge said, according to a transcript.

The exchange grew even more heated, and Heintz cleared the courtroom. An exasperated Albert was nearly charged with contempt of court.

But now it’s the judge who’s in trouble for ending the case of the “dangerous dog” too early.

The state Commission on Judicial Conduct found that Heintz mishandled the hearing and should be admonished.

The commission determined that Heintz should be disciplined for deciding the case without giving the dog’s owner and her lawyer the opportunity to be heard, and for other legal and procedural irregularities.

“Regardless of the nature of a case, a judge is obliged to give all parties the opportunity to be heard, before rendering decision,” Robert H. Tembeckjian, administrator of the state Commission on Judicial Conduct, said in a statement released Wednesday. “A judge must also be faithful to and professionally competent in the law.”

Heintz agreed to the admonition, a public reprimand, the commission said.

“Judge Heintz candidly acknowledged shortcomings in this case and seems sincerely committed to observing the rules more carefully,” Tembeckjian said. “Admonition – our mildest sanction – seemed appropriate under all the circumstances.”

Heintz declined to comment when reached Wednesday, but his Attica-based attorney, Daniel M. Killelea, said, “He’s happy to have it behind him now.”

The commission took note that the August 2014 hearing was Heintz’s first in his judicial career and that he has since received additional training.

“The right to be heard is fundamental, and even a new judge must be able to understand and adhere to basic trial procedures,” the commission said. “Every litigant has a right to expect that his or her case will be heard by a judge who is familiar with and follows the relevant law.”

Heintz ruled at the hearing that a pit bull terrier owned by Megan Shimburski was dangerous after Erie County sheriff’s detectives alleged the dog charged at Detective Gregory McCarthy on July 25, 2014, as he and two other detectives approached Shimburski’s parents’ Pratham Road home, looking for her boyfriend.

The dog, Lady, was shot once by McCarthy but survived.

Lady was allowed to return to her owner if Shimburski agreed to several restrictions, including a mandatory muzzle and leash while in public and warning signs in front of the house.

The commission determined Heintz “made numerous procedural and substantive errors” during the hearing.

“Most seriously, he summarily ended the hearing before the attorney for the dog’s owner had completed his case, which resulted in a decision made on an abbreviated record that deprived the dog’s owner of the right to be heard pursuant to law,” according to the commission.

Albert had been allowed to call a witness earlier, due to a scheduling conflict, but he intended to call more witnesses after the town prosecutor presented her case.

After the prosecutor rested her case, Albert asked for a brief recess and said he would be making a motion to dismiss the case. After the recess, Heintz announced his decision that the dog was dangerous and that the case was over.

“Judge, how am I not allowed to put on my case?” Albert asked, according to the commission’s transcript.

“Have a seat, sir,” Heintz said. “We’re continued. We’re done. Sit down, please.”

Albert repeatedly objected that he was “in the middle of my case” and wanted to call two more witnesses. That should have prompted Heintz to recognize his decision was premature, the commission said.

“Instead, (Heintz) refused to be dissuaded, reiterating, ‘You were done ... We’re done,’ ” the commission said.

The commission also faulted Heintz for:

• Improperly excluding a second defense witness with a scheduling conflict from testifying after the first defense witness because she had been in the courtroom during the first defense witness’ testimony, although the prosecutor had not requested sequestration and no witness list was provided.

• Sending witness appearance notices to the sheriff’s detectives. “Even if those individuals would likely be called to testify by the prosecutor, it is not the judge’s role to determine who the potential witnesses are and then require their appearance,” the commission determined.

• Failing to order that Lady be spayed and microchipped, as required by law after a dog is determined to be dangerous.

Albert appealed Heintz’s ruling, which was recently overturned by Erie County Court Judge Thomas P. Franczyk because of procedural errors. The case was returned to Sardinia Town Court, where Albert will be given the chance Tuesday evening to present his defense. Albert said he felt “vindicated” by the commission’s finding.

Lady was seized again earlier this month after she was accused of attacking a smaller dog early on the morning of Dec. 13 at a Pratham Road home, the Erie County Sheriff’s Office reported.

The victim dog, a Maltese mix, died from its injuries. Lady is now the subject of an additional “dangerous dog” hearing scheduled for Jan. 12 in Sardinia Town Court. She is being evaluated by an animal behaviorist, said Albert. Heintz has recused himself from that hearing, which will be heard by the town’s other justice, Eric Place.

Heintz, who is not an attorney, has served as a Sardinia Town Court justice since 2014. His current term expires Dec. 31, 2017. He receives annual compensation of $11,385 and is also employed by the Springville-Griffith Institute Transportation Division, according to the commission.

“No judge likes to go through a proceeding like this,” said the commission’s Tembeckjian. “It’s embarrassing. It’s a professional stain. But in Judge Heintz’s case, because of his recognition of the wrongdoing, and his acknowledgment that he needs to do better, he benefitted from that with the mildest public discipline we could impose.”

email: jpopiolkowski@buffnews.com