Nearly nine months after he was struck by a train in Depew, State Supreme Court Justice John L. Michalski wants to return to active duty on the bench.
Michalski, who was questioned by FBI agents about a week before he was hit by the train near the Depew Amtrak station on Feb. 28, recently asked his superiors in the state Office of Courts Administration to allow him to end his paid medical leave and return to work.
That request is under consideration by administrative judges in the state court system, Lucian Chalfen, a spokesman for the state courts, told The Buffalo News on Friday.
The train incident was called an "apparent suicide attempt" by State Supreme Court Judge Thomas Brown in a decision earlier this year upholding the Village of Depew's refusal to release a copy of a video showing Michalski being struck by the train.
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“Judge Michalski is working very hard to meet all the fitness qualifications that would enable him to return to the bench,” said Terrence M. Connors, an attorney for the judge. “The judge’s current mental and physical health should qualify him for a return to work. He is optimistic, upbeat and looking forward to returning.”
Depew police investigated the train incident, which occurred about a week after Michalski was questioned by FBI agents about his friendship with Peter G. Gerace Jr., owner Pharaoh’s strip club in Cheektowaga. Gerace was charged with bribing a DEA agent, drug trafficking and sex trafficking on the same day Michalski was hit by the train.
The judge, 60, was lying on the tracks when the train hit him, and he was not pushed by any other person onto the tracks, law enforcement officials told The News after the incident.
Michalski was rushed to Erie County Medical Center, where he was hospitalized for treatment of a leg injury.
Erie County District Attorney John J. Flynn, whose office reviewed a videotape of the incident, said it was “almost a miracle” that Michalski was not killed.
Another law enforcement source who saw a video of the incident said it appeared Michalski's life was saved by the train's cowcatcher, a device on the front of the train's engine.
“The cowcatcher caught him in such a way that it moved him between the two rails and directly underneath the train. The train passed over him without killing him,” this source said.
An attorney and friend of the judge, Anthony J. Lana, told The News a few days after the incident that federal agents had questioned the judge about his friendship with Gerace, who has pleaded not guilty to the federal charges.
Federal prosecutors charged Gerace with bribing Drug Enforcement Administration agent Joseph Bongiovanni, and with cocaine trafficking and sex trafficking at Pharaoh's. Gerace and Bongiovanni are awaiting trial.
Lana described Michalski and Gerace as longtime friends and said Michalski did some legal work for Gerace and Pharaoh’s when the judge was in private practice. Lana said there was nothing inappropriate or illegal about the judge's friendship with Gerace or the legal work he has done for him.
Gerace is a nephew of the man federal law enforcement officials call the leader of the Buffalo Mafia, Joseph A. Todaro, who has repeatedly denied that allegation.
The News reported in March that New York State’s Commission on Judicial Conduct is investigating allegations that Michalski was paid $5,000 by Gerace to perform his wedding ceremony in 2014, despite a state law that caps such pay at $100.
Peter Gerace denied making the $5,000 payment. The woman he married that day, his ex-wife Katrina Nigro, told The News she witnessed the payment, and said she has reported the payment to FBI agents investigating Gerace.
Michalski did not report receiving a $5,000 cash payment for the wedding in state ethics disclosure statements on outside income, according to a copy of the statements obtained by The News.
Robert H. Tembeckjian, chief administrator and counsel to the state commission, said he could not comment on Michalski's efforts to return to duty or the investigation by his office.
A state judge since 2006, Michalski makes $210,900 a year.
Three prominent Buffalo attorneys who know and have practiced before Michalski spoke in his defense on Friday.
"I've known this man for more than 30 years. I have never known him to be anything other than fair and level-headed," said criminal defense lawyer Joseph J. Terranova. "This one incident came out of nowhere. If he has gotten past this, if he has done everything the court system has asked him to do, absolutely he should be allowed to return to the bench."
No criminal charges have been filed against Michalski in the Gerace investigation, and "I cannot imagine any reason why he would be charged with anything," said attorney Thomas J. Eoannou.
"John is a compassionate, honest and fair judge," Eoannou said. "As long as he follows all the procedures and directions of the Office of Courts Administration, I cannot see any reason why he should not be back in court."
"Whether this was a suicide attempt or not, I don't know," defense attorney Paul J. Cambria said of Michalski. "But if Judge Michalski needed treatment, and got the treatment he needed, he should come back. I would have no problem having him assigned to one of my cases."
Flynn said he also would welcome Michalski back to the bench if it is approved by state court officials.
“I know of no health issues or legal issues – nothing that I’m aware of – that would preclude him from coming back,” Flynn said.
The judge has not responded to calls, messages and letters from The News.
Peter G. Gerace Jr. will remain in custody until his August trial.
