In Part 1
, we examined the nominating commission's strong list for Chief Judge, but decried the exclusion of Judges Jenny Rivera, Rowan Wilson, and Shirley Troutman. (I would also mention Elizabeth A. Garry, Presiding Justice of the Appellate Division, Third Department, but I have no idea whether she applied.) In Part 2,
we took a close look at cases which some opponents
of Governor Hochul's nominee, Hector LaSalle, claim to show that he is unacceptably conservative.
Let's now take a look at some cases which Judge [officially, Presiding Justice] LaSalle's opponents have not mentioned. They suggest something quite different. In a few of these, LaSalle actually wrote the court's opinion, as opposed to joining one that was written by someone else--which are the only cases cited by some of LaSalle's opponents.
Masullo v. City of Mount Vernon (2016)
In this case, the state awarded disability retirement benefits to a firefighter who had been injured several times in the line of duty. Simultaneously, the city began paying him the firefighter benefits as spelled out in state law. Four years later, however, the city decided that the firefighter had to return the benefits that it was paying him, because there was no record that he had ever actually applied for them. The city did allow the firefighter to submit an application for past and future benefits, but it then denied his application.
When the firefighter challenged the city's denial in court, the trial judge sided with the city. On appeal, however, the Appellate Division vacated the decision below and sided with the firefighter. In his opinion for the court, Judge LaSalle explained:
Absent from the record  is any proof to support the City's allegation that the [firefighter's] benefits were indeed paid in error. There is no evidence in the record that at the time the [firefighter] was awarded his retirement disability benefits...there were any application processes or procedures in place for a firefighter to receive [the] benefits. There is no proof to support the City's suggestion that, had the [firefighter] submitted some formal application for those benefits [four years earlier], the application would have been denied at that time. The plain language of the [state law] provides that “[a]ny payment made by a municipal corporation or fire district pursuant to the provisions of this subdivision shall be deemed to have been made for a valid and lawful public purpose” and, here, the record demonstrates that the [firefighter] was paid these benefits for more than four years. Accordingly, absent any evidence that the payments were actually erroneously made, the City's payment of benefits to the [firefighter] demonstrated that he was found eligible for the benefit payment.
Does that sound like hostility to workers?
People v. Buyund (2021)
The defendant, in this case, entered the victim's home while she was asleep, but she thwarted his attempt to have sex with her. He was sentenced to 11 years imprisonment after he pleaded guilty to "burglary in the first degree as a sexually motivated felony." The trial judge also certified him as a sex offender, requiring him to register under the state's Sex Offender Registration Act (SORA).
On appeal, the defendant claimed that, under the law, he is not a "sex offender" who is required to register. The Appellate Division agreed, in an opinion by Judge LaSalle for the unanimous court. The crime to which the defendant pleaded guilty and for which he was convicted, explained LaSalle, is not one of the offenses specifically listed under the state's registration statute. Accordingly, that part of the sentence that required the defendant to register as a sex offender was illegal.
As LaSalle set forth his reasoning:
[W]hen looking first at the statutory text of [SORA], we find that the language employed is clear and unambiguous. As written, [it] specifically defines a sex offense as "a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted ... as a sexually motivated felony defined in [a particular section of the state's Penal Law]." Thus, as the defendant contends, according to the language of the statute as [presently stated], burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA. [The law] clearly limits the qualifying sexually motivated felony offenses only to those enumerated...[T]here is an irrefutable inference based upon the language of [SORA] as amended that the omission of certain sexually motivated felony offenses was intentional, and we are constrained to give effect to the plain meaning of the statute as written.
The [prosecution's] suggested interpretation would broaden the scope of the statute to include all sexually motivated felony offenses as registerable under SORA. Had the Legislature intended this result, it could have clearly said so.
Does that sound like a judge with a pro-prosecution bent? One who is unsympathetic to the rights of the accused?
The Court of Appeals, two years later, reversed the Appellate Division and reinstated the trial judge's requirement that the defendant register as a sex offender. The reason? Lack of "preservation"--i.e., the defendant had not originally complained to the trial judge.
Judges Rowan Wilson and Jenny Rivera--who have, by far, the most liberal, pro-rights of the accused records at the Court of Appeals--dissented and agreed with LaSalle. Like LaSalle, they viewed the requirement to register as a sex offender to be part of the sentence and, therefore, the objection to it did not need to be preserved. They also agreed with LaSalle that SORA, as written, clearly did not require the defendant to register for the crime to which he pleaded guilty.
LaSalle in accord with Wilson and Rivera--hard to get less pro-prosecution than that!
Fisch v. Davidson (2022)
In this case, the husband sued for divorce on Long Island, in a court in Suffolk County. Among other things, he asked the court to award to him the parties' house in Southampton. The wife, among other things, sought a change of venue to Manhattan. She contended that the parties' primary, permanent residence was in New York County, and that the property on Long Island was only a summer house. She also argued that Suffolk County would be inconvenient because none of the witnesses lived there and because virtually none of the parties' assets were located there. Nevertheless, the Suffolk County court sided with the husband.
On appeal, the Appellate Division, in an opinion by Judge LaSalle, reversed the court below and ruled for the wife. In a comprehensive recitation of governing precedents, LaSalle made clear that the wife's contention that the parties' residence was Manhattan was the correct one. While acknowledging that the husband was correct on one point, that separated parties' may have more than one residence between them, LaSalle rejected the husband's insistence that this applied to the house on Long Island.
As Judge LaSalle explained:
[I]n her affidavit [, the wife] averred that prior to 2020 [when the husband sued for divorce], the Southampton house was only used by the parties on weekends in the summertime, with limited exceptions, and that the only time the parties stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018. The [husband's] affirmation...does not contain anything disputing these averments. The [husband] stated [that "w]e used the Southampton Residence during summers and on other occasions. We have used it extensively in every year since we purchased it." Since it is undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, contrary to the [husband's] contention, neither party resided in Suffolk County at any time prior to 2020 ....
Further, contrary to the [Suffolk County court's] conclusion, the time the [wife] spent in the Southampton house in 2020 during the COVID–19 pandemic was not enough to make her a resident of Suffolk County...[A]lthough the [wife] retreated to the Southampton house in March 2020, it is undisputed that [she] planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID–19 pandemic was at its zenith in New York City.
Does that sound like a judge who's unsympathetic to women and indifferent to the protection of their rights? A judge who reversed a ruling below that had favored the husband? And just as importantly, Judge LaSalle's opinion was a model of judicial analysis.
People v Torres (2019)
In an opinion that Judge LaSalle did not write but did join, the Appellate Division reversed a conviction for a drug offense. Like the trial judge, the Appellate Division concluded that the evidence was sufficient to prove guilt beyond a reasonable doubt. But the decision in which LaSalle joined found that the judge below had made an error during the trial, and that the error sufficiently prejudiced the defendant to require a new trial.
Here's part of the decision for which LaSalle voted:
The defendant contends that the [trial judge] should have granted his request for a permissive adverse inference charge with respect to the [prosecution's] failure to turn over duly requested tape recordings and any other police records related to taped interactions between the undercover officer and a witness....
We agree with the defendant that the [trial judge] should have granted his request... Although the prosecutor stated that the missing tapes were unrelated to the sales at issue and were not recorded on the dates of the buys, he concededly never listened to them. [And c]ontrary to the [prosecution's] contention, the error in denying the defendant's request for a permissive adverse inference charge was not harmless, as the evidence of the defendant's guilt, without reference to the error, was far from overwhelming...Moreover, even assuming that there was overwhelming evidence of guilt, it cannot be said that there is no significant probability that the court's failure to grant the defendant's request for a permissive adverse inference charge, and therefore consider in its deliberation the absence and significance of the missing tape recordings, contributed to the conviction.
Does this special effort--joined by Judge LaSalle--to insure that a defendant's fair trial rights were protected, sound like LaSalle running "roughshod over due process
Let's look at one more case. In this one, Judge LaSalle did author an opinion, it was a dissent, and he did side with the prosecution.
People v. Sanchez, also known as “Shags” (2017)
In this case, the majority at the Appellate Division reversed the defendant's convictions for manslaughter and related offenses. According to the majority, the trial judge had committed reversible error by not advising the jury that they could consider whether the defendant had acted in self-defense in his altercation with the victims outside a bar. Judge LaSalle dissented on the ground that no reasonable view of the evidence supported the possibility of self-defense.
Here's LaSalle's analysis:
[I]t is undisputed that none of the [allegedly threatening] individuals stopped or interfered with the defendant or any of his friends from leaving the bar.
The defendant testified that these people had bottles with them; however, there was no evidence that they broke the bottles or were attempting to use them as weapons...Although the defendant stated that the people “probably had knives,” and that he saw a “shiny thing,” he did not testify that he saw any of the individuals actually possess or display a knife or any other weapon.
The defendant conceded that none of these individuals attempted to stop him and his
friends from leaving, and none of them was impeding their ability to get to the car. Indeed, [he and his companions] were able, with complete safety, to get back to the car without anyone impeding or harming them in any way....
Once the car was unlocked, rather than leaving...the defendant retrieved the gun, and [left] the safety of the vehicle.
A perfectly reasonable analysis which, as with the previously discussed cases, hardly shows Judge LaSalle to be a conservative ideologue.
In fact, on the prosecution's appeal of the Appellate Division decision, the Court of Appeals reversed. Agreeing with Judge LaSalle, the majority ruled that "there was no reasonable view of the evidence that defendant could not safely retreat." Admittedly, Judges Rowan Wilson and Jenny Rivera dissented. But significantly, the majority at the Court of Appeals that saw the evidence the same as Judge LaSalle included Judges Leslie Stein, Eugene Fahey, and Paul Feinman--moderate to moderately liberal members of the court.
The foregoing represents just a small part of Judge LaSalle's record on the Appellate Division. But it does include several of the opinions which he himself wrote, and hopefully, at the least, it helps to give a clearer, fairer, and more complete appreciation of his judicial craftsmanship, reasoning, and approach to the law than what has been presented by his most ardent opponents.