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What happened in court that led a former judge to be released, one hour bribery sentence

Michalek Walking Out of Court
Posted at 6:57 PM, Jul 29, 2022
and last updated 2022-07-29 18:57:40-04

BUFFALO, N.Y. (WKBW) — On Thursday afternoon former New York State Supreme Court Judge John Michalek walked into the courthouse he once served, to now be sentenced for his participation in a bribery scheme with former Erie County Democratic Party Chairman Steve Pigeon. Michalek was sentenced by Judge Donald Cerio, a judge from Madison County, to 364 days and four months in jail. One hour after being taken away in handcuffs, he was released.

7 News' Michael Schwartz was in the courtroom on Thursday as Michalek arrived in a suit and tie. He is represented by attorney Carrie Cohen. The case is being prosecuted by the New York Attorney General's Office, and Assistant Attorney General Michael Smith was in court to represent the AG's office Thursday.

Cohen addressed Cerio, and the courtroom on Thursday. She said Michalek made a mistake by taking bribes from Pigeon, but her client, "was manipulated by an agenda not known."

Cohen spoke for about 15 minutes, saying Michalek "immediately" took responsibility, and once the investigation began her client "cooperated fully." Cohen said Michalek even helped authorities investigate Pigeon, who she said "took advantage" of the former judge. Cohen said her client didn't run after "he made the very serious mistake."

"[Michalek] crossed the line, and he shouldn't have," said Cohen, who continued to urge Cerio not to sentence her client to jail. She said in this case, "jail doesn't serve any purpose."

Michalek then had the floor. The 71-year-old claimed he is ashamed of what he did, and thinks about it everyday. He said he took the bribes from Pigeon blindly, out of desperation to keep his family safe.

"I'm sorry and accept my conduct," said Michalek.

The former judge went on to say that he considered being a judge more than just a job. He resigned from the bench after being charged in 2017. The reputation Michalek spent a lifetime building "has been destroyed," he said, in the place he grew up and raised his family.

Michalek then became emotional reading about his family, including his son Colin Daniel, who died on June 19, 2017. It was one day after Father's Day that year.

Cohen said Michalek's son died by suicide. The tragedy occurred not long after Michalek was charged. The former judge said that he feels his legal actions contributed to his son's death.

"I will live with this for the rest of my life," cried Michalek.

Michalek said his other son, John Connor is an active Navy SEAL, and that going to jail would mean his wife would be alone at home.

Judge Cerio told Michalek, "I've been troubled with what I should do with John Michalek."

Cerio said he had been going back and forth about Michalek's situation. The judge offered condolences to Michalek for the untimely death of his son, however the Cerio said he is "astounded" with what Michalek did.

"I'm profoundly troubled by what you did while in the capacity of the New York State Judiciary system," said Cerio.

Cerio detailed some bribes that Michalek took, using his role to benefit Pigeon and his associates. Those bribes mentioned include:

  • Tickets to Sabres games
  • $1000 complimentary ticket(s) to at least one fundraiser

Cerio said he is puzzled by how those tickets helped Michalek's family, after Michalek said he took the bribes to keep his family safe.

Michalek said he was also trying to also help his son get a job. Judge Cerio said Michalek asked Pigeon to even speak to the governor about appointing him to the appellate division.

Cerio said Michalek should've paused during all of those circumstances to realize it wasn't right. Judge Cerio said he's not going to send Michalek to state prison. Cerio then grabbed the black robe that he was wearing, and told Michalek, "This means something." Cerio said if there was no punishment it would the public to lose trust in the justice system.

Minutes later, Cerio sentenced Michalek to 364 days and four months in jail, plus a $5,000 fine. The 71-year-old was put into the custody of the state, and taken out of the courtroom in handcuffs. Michalek looked at his attorney confused, and in shock as he stood up.

After Cerio left the room, Cohen asked for a conference with Cerio. She spoke to Smith while waiting.

Cohen went into the judge's chambers, and 15 minutes later Cerio returned to the bench to release Michalek. He said:

As a result of that conference, at this juncture, what I'm going to do is reschedule this matter for an appearance on September 9 at 2 p.m. At this time attorney Cohen is going to submit motion, and/or application by no later than August 22. The AG's Office is to respond by no later than September 2, and any reply there after by September 7. This would be in respect to any alternative incarceration application that counsel seeks to submit here...Mr. Michalek, from what I have been advised, has not brought with him medications, things of that nature. Given his state of health at this time, so with that in mind, and more importantly Mr. Michalek has for the last six years appeared as directed. So that being the case I am going to release him at this time, under the same conditions previously imposed...And you'll be back here September 9 at 2 o'clock.
Judge Cerio

Michalek then was given back his personal items in a plastic bag, which he emptied out before walking out of court, holding his tie.

As Cohen escorted Michalek out, Schwartz asked what happened in her conference with Cerio, but she said "no comment." When Schwartz asked Cohen to provide the legal facts she replied that the proceeding has been "stayed" adding, "You were in court."

She later told Schwartz to email her, which he did on Friday. Cohen has yet to answer.

Michalek and Cohen walked down Delaware Avenue, silent the rest of the time.

WKBW Legal Analyst Florina Altshiler said this is highly unusual, and retired State Supreme Court Judge Penny Wolfgang said, she has never seen this before. Wolfgang said a stay is an important tool in court, but the way it was done is peculiar.

"The procedure was unusual, but granting a stay of a sentence is well within of a court, and I have done it myself many times," said Wolfgang.

New York Attorney General Letitia James' Office said it still considers the sentence given to Michalek, and is pleased with that. The AG's Office deferred to the court on its decision.

Letita James' Office said James is committed to continuing to stop corruption in the state. James released this statement on Thursday:

“New Yorkers put their trust in judges and public servants to serve the interests of the people, not make a mockery of our institutions for personal financial gain,” said Attorney General James. “Former Judge Michalek and party leader Pigeon engaged in a deep web of deception and bribery that violated their duty to the public and the very laws Michalek swore to uphold. Let today’s sentencing be a warning to all who would try to do the same: our judicial system is not for sale, and regardless of political party affiliation, my office will always hold corrupt officials accountable.”

On June 30, 2016, Michalek pleaded guilty to two felonies, including Bribe Receiving in the Third Degree, a class D felony, and Offering a False Instrument for Filing in the First Degree, a class E felony, in connection with receiving bribes from Pigeon and for filing a false document with the New York State Office of Court Administration when he appointed a receiver requested by Pigeon. After entering his plea, Michalek submitted a letter of resignation to the New York State Chief Administrative Judge and was disbarred from practicing law. At today’s sentencing, Michalek’s defense attorney made an oral motion, and sentencing was stayed until September 9, 2022.

On September 28, 2018, Pigeon, an attorney, political consultant, and former Chairman of the Erie County Democratic Committee, pleaded guilty to Bribery in the Third Degree, a class D felony. After entering his guilty plea, Pigeon was disbarred.

Between February 2012 and April 2015, Michalek and Pigeon exchanged emails and text messages which revealed Pigeon was bribing Michalek in order to influence judicial decisions. Messages show Pigeon helped Michalek secure employment and official appointments for two of his family members, gave Michalek free tickets to box seats for Buffalo Sabres hockey games, and gave Michalek’s family a free ticket to a $1,000 political fundraiser. The messages also indicate that Pigeon helped Michalek secure a judicial appointment to the New York State Supreme Court in the Appellate Division.

Throughout the same time period, Pigeon and Michalek discussed multiple pending lawsuits that Michalek presided over. Michalek shared privileged and non-public information with Pigeon so that he could provide input and advice on the cases. In one case, Michalek appointed an attorney chosen by Pigeon to a receivership. Pigeon’s choice was not on the court-issued list of receivers, so in order to appoint the person, Michalek filed a document with the Office of Court Administration in which he falsely claimed he needed that specific attorney’s expertise in handling the receivership.

On October 9, 2018, Pigeon pleaded guilty in federal court to conspiring to illegally cause a $25,000 campaign donation from a Canadian CEO to a New York state official running for reelection to statewide office in 2014. When the CEO’s donation was initially rejected because he was not a U.S. citizen, Pigeon arranged for a U.S. citizen who worked for the CEO to make the donation instead. In exchange for the donation, Pigeon and the CEO attended a New York City fundraiser for the candidate.

Yesterday, July 27, 2022, Pigeon was sentenced on federal charges to four months in jail followed by one year of supervised release by the Honorable Richard J. Arcara, U.S. District Judge, Western District of New York. On December 2, 2021, Pigeon was indicted and arraigned on two counts of Predatory Sexual Assault Against a Child, First Degree Rape and other charges. This case is still pending in Erie County Court.

The Office of the Attorney General (OAG) thanks the U.S. Attorney’s Office of the Western District of New York, New York State Police, and Federal Bureau of Investigation for their work on this matter. The OAG would also like to thank the New York State Board of Elections for their assistance.

Assistant Attorney General Susan H. Sadinsky of the Public Integrity Bureau prosecuted this case under the supervision of Public Integrity Bureau Chief Gerard Murphy, Deputy Bureau Chief Kiran Heer, and Counsel to the Criminal Division Stacy Aronowitz. Senior Analyst Robert Vanwey also worked on the investigation. The Division for Criminal Justice is led by Chief Deputy Attorney General Jose Maldonado and overseen by First Deputy Attorney General Jennifer Levy.