Hochul's Pick for Chief Judge (Part 3): LaSalle's [Other] Record

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?

A postscript:

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.

Hochul's Pick for Chief Judge (Part 2): LaSalle's Record

In Part 1, we looked at the list of seven candidates for Chief Judge recommended to Governor Kathy Hochul by the Commission on Judicial Nomination. We discussed the strong inclusions, the shameful exclusions, and the need for a strong Chief Judge to help restore the New York Court of Appeals to its traditional preeminence. 

Let's now take a look at Judge Hector D. LaSalle's record. Ever since he was selected from the list by Governor Hochul as her nominee to preside over the state's high court, he has faced strong opposition. Some Democratic senators, progressive organizations, and law professors have openly protested Hochul's pick as being too conservative. In their view--as well as that of most close observers of the court--the Court of Appeals has recently become much less protective of workers' rights, women's equality, the rights of the accused, and other hallmarks of its historic role in state governance and as a national leader. They argue that the court needs a progressive chief judge who can turn the court around, but that LaSalle is the very opposite of that.

So, in this post, let's look at the bases for their opposition. Next, in Part 3, we'll look at revealing parts of his actual record which have largely been overlooked.

LaSalle's opposition complains about a few cases in which he participated at the Appellate Division--i.e., New York's intermediate court on which he sits and over which he is now the Presiding Justice of its Second Department (which covers 10 downstate counties, with its courthouse in Brooklyn). But a careful and somewhat closer look at those cases does not actually show LaSalle to be the ideological conservative that his opponents claim.

Here they are:

    Evergreen Ass'n, Inc. v. Schneiderman (2017).

Some opponents have claimed that "The decision is shocking...This opinion suggests to us that Justice LaSalle does not understand the severity of the threat to women’s rights posed by anti-abortion activists and their funders."

The case involved an investigation of a not-for-profit corporation that offers information about alternatives to abortion to pregnant women. The issue concerned the breadth of the state Attorney General's subpoena which demanded a wide range of documents about, among other things, the corporate structure and facilities, the names, education, and credentials of all of its staff members, the materials it provides to clients, its medical services, equipment, and supplies, and the source of its funding. 

The Appellate Division, in a unanimous opinion which Judge LaSalle joined, ruled that the 1st Amendment prohibits subpoenas "used to intimidate or harass" those with unpopular views. Therefore, the subpoenas were only valid to the extent that they sought information necessary for the government's legitimate investigatory purposes.

As the court put it:

[W]e limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General's legitimate need to gather evidence to determine whether [the not-for-profit corporation] has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on [the corporation's members] First Amendment right to freedom of association.

Hardly a "shocking" threat to women's rights.

    Cablevision Sys. Corp. v. Commc'ns Workers of Am. Dist. 1 (2015)

In this case, in which Judge LaSalle voted with the majority, supposedly "the decision is puzzling [and] suggests an unexpected hostility to labor."

The case involved a company's lawsuit against a union and its representatives for allegedly defamatory criticisms. The Appellate Division held that the suit against the union itself and against the individuals acting as officers of the union had to be dismissed under the law governing labor-management relations. But the court ruled that the lawsuit could proceed against those individuals who allegedly defamed the company while acting on their own, having nothing to do with their roles in the union.

Indeed, the court--with LaSalle's vote--was applying, as it must, the precedent set by the Court of Appeals in its 1951 decision in Martin v. Curran.  As the Appellate Division explained:

[N]either the Martin rule nor any other authority precludes causes of action from being asserted against individual members of the union defendants in their individual capacities (see Martin v. Curran, 303 N.Y. at 279). In Martin, only the claims asserted against union members in their representative capacities as officers of the union were dismissed. Notably, the Court of Appeals specifically allowed the libel claims in that action to proceed against the same defendant union members, in their individual capacities (see Martin v. Curran, 303 N.Y. at 279), which is determinative here. [Emphasis added.]

Really anti-union or worker?

    People v. Corbin (2014)

In this case, the claim is that "LaSalle rode roughshod over due process [and] was so extreme, it was repudiated by the conservative Court of Appeals five years later."

The case involved a plea of guilty to a weapons offense in which the defendant, as part of the arrangement with the prosecutor and upon the advice of his attorney, waived his right to appeal. Nevertheless, the defendant did seek to appeal, arguing that the police search which uncovered the incriminating evidence against him was illegal.

The majority at the Appellate Division, which LaSalle joined, held that the defendant had clearly, voluntarily, and knowingly waived his right to appeal after being advised by his attorney, and that the trial judge insured that the defendant understood what he was doing. Under Court of Appeals precedent, a few constitutional issues, such as the right to counsel, do survive a waiver of appeal, all others--such as whether evidence should have been suppressed--do not. As the Appellate Division explained its decision:

[T]he record demonstrates that the waiver of appeal was valid and entitled to enforcement, since it establishes that the defendant appreciated the consequences of the waiver and knowingly and voluntarily accepted them. [Citing to Court of Appeals precedent.]

When the [trial judge] correctly advised the defendant that some constitutional issues would survive his waiver, the defendant indicated that he understood the meaning of this information. He did not express any confusion or question the court or his attorney (with whom he had an adequate opportunity to discuss the matter) regarding the waiver, nor did he inquire as to whether any particular issue would survive the waiver. 

What was the supposed "repudiation" of that Appellate Division decision by the Court of Appeals that LaSalle's opponents pointed to? People v. Thomas (2019). But here's what the Court of Appeals actually addressed in that very different case:

We reiterate that, when a trial court has utterly "mischaracterized the nature of the right a defendant was being asked to cede," an appellate "court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights. [Emphasis added.]

There was nothing in the Appellate Division's Corbin case suggesting that the trial judge "mischaracterized" what the defendant was waiving. What has been mischaracterized is the Court of Appeals Thomas decision as having supposedly "repudiated" Judge LaSalle's vote in Corbin.

People v. Delvillartron (2014) 

This additional case identified by some opponents,  supposedly proves that Judge LaSalle has "a clear pro-prosecution bias, voting to affirm convictions even when injustice has clearly occurred."

The question, in this case, was whether the police had probable cause justifying their arrest of the defendant. Not whether the police had reason to believe the defendant was guilty beyond a reasonable doubt or even by a preponderance of the evidence. But whether there were reasonable grounds to believe that the defendant was probably guilty. 

The facts were that the police were chasing the two suspects who had just been identified by the victims of an armed home robbery. When the police caught the suspects, they were closing the rear door of a vehicle they had just entered. The defendant was in the driver's seat trying to start the car.

The majority of the Appellate Division held that the police should not have arrested the defendant, because it was just as likely that he was entirely innocent as opposed to being the driver of the getaway car. LaSalle dissented. As he saw it:

[The chased suspects] entered the rear of a nearby vehicle, and [the police] observed the defendant fumbling with the keys, attempting to put them in the ignition.

Contrary to the conclusion of the majority, in evaluating the totality of the circumstances, I do not believe the defendant's behavior can be viewed as “innocuous.” Indeed, in my view, the totality of the facts and circumstances would lead a reasonable person possessing the same expertise as the arresting officer to conclude that the defendant was acting in concert with [the chased suspects], in attempting to assist them to flee the scene of the home invasion.

Does LaSalle's analysis really demonstrate a "clear bias" or that "injustice has clearly occurred" under these facts? Or was his view of the existence of probable cause an entirely reasonable one? [In fact, as a self-acknowledged liberal, I would have agreed with LaSalle in this admittedly close case.]

So there it is. Those are the cases and the votes and dissenting opinion of LaSalle that apparently disqualify him from being Chief Judge. His opponents claim that these prove him to be some ultra-conservative whose appointment as Chief Judge would have "severe implications for New Yorkers’

rights and our democratic institutions."

Again, in Part 3, we'll look at important aspects of his decisional record which his opponents have overlooked.

Hochul's Pick for Chief Judge: The Commission's List and LaSalle's Record (Part 1)

Let me start by repeating that it is a disgrace that three sitting members of the Court of Appeals were excluded from the list of candidates for Chief Judge. Those three--Jenny Rivera, Rowan Wilson, and Shirley Troutman--were the Judges whose voting records have been more philosophically liberal than the others on the Court. It's hard to believe that the nominating commission that chose the seven candidates for Chief Judge was primarily motivated by merit as opposed to politics and ideology.

See e.g., Chief Judge Shortlist Excluded Court’s Sitting Liberals, DiFiore Opponents, by Sam Mellins, NY Focus, Dec. 1, 2022:

    Several court observers expressed dismay at the exclusion of Rivera, Troutman, and Wilson.

    “I think it’s a disgrace that none of them were placed on the list,” said Vincent Bonventre, an expert on the Court of Appeals and professor at Albany Law School. “If the commissioners were looking at pure merit, somebody like Wilson is just absolutely brilliant.” In 2015, the last time the chief judge position opened up, Wilson was on the shortlist.

    But the idea that merit is the only factor is “laughable,” Bonventre said. “Of course there are politics involved.”

    Rivera’s and Wilson’s liberalism and frequent dissents from DiFiore likely hurt their chances at making the shortlist, Bonventre said. Of the 12 panelists who picked the shortlist, DiFiore and her ally Cuomo appointed seven, and Republican legislative leaders appointed another two. In order to advance to the shortlist, applicants need at least eight votes. 

    “If you’re a commissioner who was appointed by Chief Judge DiFiore, or you are a commissioner who was appointed by the Republicans, you might feel pretty unfavorably towards especially Wilson and Rivera,” due to their liberal dissents, Bonventre said. 

And Hochul’s Big Choice: Picking New York’s Most Powerful Judge, by Rebecca Davis O’Brien, NY Times, Dec. 13, 2022:

    The court’s three liberal judges, all of them people of color, two of whom had more seniority than Judge Cannataro, were among 41 applicants for the post, according to people familiar with the process. None of the liberal judges were approved by the commission. (The exclusion of the three liberal judges was reported earlier by New York Focus.)

    “It’s just totally inexcusable,” said Vincent Bonventre, a professor at Albany Law School and a longtime court observer. He pointed in particular to the omission of one judge, Rowan D. Wilson, who had been on the commission’s short list for the chief judge spot in 2015, when it last became open.

If those glaring omissions are disregarded--yes, it's difficult to ignore such deplorable exclusions--it must be acknowledged that the list of seven is a strong one. Here it is:

• Governor Hochul's pick from the list, Hector D. LaSalle, Presiding Justice of the  Appellate Division, Second Department (courthouse in Brooklyn)--one of 4 departments of the state's intermediate appellate court and the busiest among them, as well as the busiest appellate court in the country; he has worked in the Suffolk County District Attorney's Office and in the state Attorney General's Office and has been an appellate judge for 9 years. 

• Anthony Cannataro, a current Judge on the Court and the internally selected Acting Chief Judge--although the precise procedure is not clear--until a nominee of the Governor is confirmed by the Senate; he has considerable administrative experience, having supervised NYC's civil court before being appointed to the Court of Appeals in 2021; early in his career he clerked on the Court for Judge Carmen Ciparick.
• Abbe R. Gluck, a Professor of Law and Professor of Internal Medicine at Yale; among other positions, she served as a law clerk for Supreme Court Justice Ruth Bader Ginsburg and as Special Counsel to President Biden.
• Jeffrey K. Oing, a Justice of Appellate Division, First Department (courthouse in Manhattan); early in his career he served as a law clerk to Chief Justice Wilentz of the New Jersey Supreme Court and later as a law clerk to judges on state Supreme Court (the misleading name of NY's top trial court); he has been an appellate judge for 5 years.
• Alicia Ouellette, President and Dean, Albany Law School; early in her career she served as a law clerk for Court of Appeals Judge Howard Levine and then as an Assistant Solicitor in the state Attorney General's office where she argued over 100 appellate cases; she has served as Dean and President of Albany Law School for the last 9 years.
• Edwina G. Richardson-Mendelson, Deputy Chief Administrative Judge for Justice Initiatives; in addition to a law degree, she has a Ph.D. in criminal justice; among other positions, she has worked as an attorney for The Legal Aid Society and for NY County Family Court; she has considerable administrative experience both in supervisory positions in Family Court in NYC and as a Deputy Chief Administrative Judge for the state; she has also served as a trial judge for 20 years.
• Corey L. Stoughton, Attorney-in-Charge, Special Litigation and Law Reform, The Legal Aid Society; early in her career she served as a law clerk to Sixth Circuit Court of Appeals Judge Cornelia Kennedy; she later served for 10 years as a supervising attorney for the NYCLU, then as a senior counsel in the US DOJ Civil Rights Division, and the last few years with The Legal Aid Society.

Again, notwithstanding the nominating commission's inexcusable exclusion of the 3 Judges on the more-liberal wing of the Court of Appeals, it can hardly be denied that this is a strong list  It would have been even stronger if....

Both points are critically important. New York's high court needs a strong Chief Judge--perhaps now even more than usual. Governor Hochul herself understands that. As she told Susan Arbetter in an interview on Spectrum News's Capital Tonight, "Think back on the legacy of this Court in the past...I want to get back to that preeminence."

(See One-On-One Interview with Gov. Hochul, Susan Arbetter, Capital Tonight, Aug. 24, 2022.)

Virtually every close observer of the Court of Appeals with whom I have spoken--lawyers, judges, academics, reporters--are all expressing a similar view. The court has been considerably diminished in the last few years and needs to regain its traditional quality and prestige.

I've been candid when asked my views on these matters.

See e.g., New York chief judge's exit seen by some as an opportunity to raise Court of Appeals' stature, by Susan Arbetter, Capital Tonight, Aug. 31, 2022:

    [W]hen asked if DiFiore was a good chief judge in the vein of former Court of Appeals Chief Judges Jonathan Lippman and Judith Kaye, Bonventre said the court has taken a status hit under her watch.

    “I will say that during her tenure, the court’s reputation has really plummeted. I don’t think you can find anybody serious and candid who will tell you that the court is particularly well-respected today. It’s not. Its reputation has really been on the downside,” Bonventre said.

    Bonventre, who has written extensively about the Court of Appeals, had favorably compared the court to the U.S. Supreme Court prior to DiFiore’s tenure.

    “When Jonathan Lippman was chief, I remember chief justices from the, around the country, telling me, ‘Boy this is a great court again’. It was a great court early on in [Judith] Kaye’s tenure, certainly when [Lawrence] Cooke was chief. A lot of [Sol] Wachtler’s tenure, [Charles] Breitel’s, [Stanley] Fuld’s. You can go back and back. It has not been a very good court (lately),” he said.

    When asked why, Bonventre blamed former Gov. Cuomo.

    “That’s another interesting question. I don’t think it’s necessarily because of Chief Judge DiFiore. For one thing, look, Gov. Andrew Cuomo didn’t really care much about the court,” Bonventre said. “Pataki wanted to make the court in a particular image. Certainly, Mario Cuomo was very serious about the court. I don’t think Andrew Cuomo was very serious about it.”

    According to Bonventre, the younger Cuomo would “just bypass” extraordinary candidates that were on the list submitted to him by the Judicial Screening Commission. 

    “Erin Peradotto, Michael Bosworth, Caitlin Halligan. It would have been an extraordinary strong court. He bypassed them,” Bonventre stated. 

    The other issue weighing down the court is the dynamics in play among the judges. 

    “When you have different opinions on the court, different sides, and they’re really nasty towards one another.  Or when you get 4-3 decisions, meaning they’re really close, and the majority doesn’t even sign its opinion – it will write some ditty little three or four paragraph unsigned memorandum.  And you have 3 colleagues writing long dissents? That kind of shows not much respect for colleagues. It doesn’t show a good dynamism within the court,” Bonventre said.

And In Seven Candidates for Chief Judge With Varied Backgrounds, There's Something for Everyone, by Brian Lee, NYLJ, Nov. 28. 2022:   

Albany Law School professor Vin Bonventre called it an “extraordinary” list of applicants whose only “glaring omission” is Court of Appeals Judge Rowan Wilson.
    Presuming Wilson applied, Bonventre said, “myself and plenty of other lawyers in New York think it’s a disgrace that he’s not on the list.”
    The professor said he suspects Wilson didn’t make the cut because he’s a frequent dissenter on the high court.
    “The commission might well be interested in getting a more consensus candidate for chief judge,” said Bonventre, adding “it’s very curious” Cannataro was the only current Court of Appeals judge to emerge from the commission, presuming others applied.

And The ‘extraordinary list’ of 7 that Kathy Hochul will pick from for NY’s top judge, by Zach Williams, NY Post, Nov. 25, 2022:

    “It’s a pretty extraordinary list,” Albany Law School Professor Vincent Bonventre, a longtime Court of Appeals watcher, told The Post on Friday. “Each one of them comes with very strong reputations. They have very impressive credentials and backgrounds.”

    He added the next chief judge will have their work cut out for them considering how far the Court of Appeals has fallen in recent years from being the role model it once was for the rest of the nation.

    “The Court of Appeals is nowhere near the court that it traditionally has been,” Bonventre said. “I don’t think you can find anybody who honestly is going to tell you that it is.”

So those are my views on the Chief Judge list--the inclusions and exclusions--as well as the current state of the Court of Appeals and the critical importance at this time for a strong selection to help restore New York's highest tribunal to its traditional prominence as one of the nation's great courts.

In the next post, we'll look at Governor Hochul's nominee, Hector LaSalle. We'll look at his decisional record at the Appellate Division and, more specifically, at opinions he has authored which seem to have been overlooked by those who are opposing his confirmation.

Capital Tonight: Previewing Some Major Cases This Supreme Court Term

CAPITAL TONIGHT

(click to enlarge)

https://spectrumlocalnews.com/nys/central-ny/politics/2022/10/03/2--blockbuster--cases-before-the-supreme-court-this-session?cid=share_clip

The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges

I wish Chief Judge Janet DiFiore, of whom I am personally fond, the very best on her announced departure from the Court.

Oral Arguments/Court of Appeals Website

We've previously looked at the Court of Appeals' dramatically reduced caseload over the past few years--both the total appeals and, separately, the criminal cases. Now let's look closer into the latter.

Let's see how many criminal cases the Court itself has been choosing to hear--as opposed to criminal cases reaching the Court as of right or because an Appellate Division Justice granted leave to appeal. Let's compare those recent CLA (Criminal Leave Application) numbers with the numbers in the past. Then let's see how many CLA's each of the individual Judges has been granting.

(For those who may not be familiar, here's a quick outline of the CLA process:

When a party, whether prosecution or defense, loses in the court below, it may choose to apply to the Court of Appeals for review. That "Criminal Leave Application" (CLA) is assigned by the Court to one Judge who alone decides whether or not the Court will hear the appeal. These CLAs are distributed equally and randomly to the individual Judges. As might be expected, some Judges are more generous in granting CLAs, and some Judges are less so. For this reason, the process is viewed by many as inherently unfair, and certainly less fair than the different procedure for civil cases, in which the entire Court decides whether to hear the appeal. The odds of having one's CLA granted and, therefore, of having one's case reviewed by the Court, depend to a large extent on the particular Judge to whom the CLA is assigned.)

Here's a look at the collective number of CLAs granted by the Judges of Court for each year from 1988 through 2021. That span of time covers the last several years of the Court under Chief Judge Sol Wachtler, the entire tenures of Judith Kaye and Jonathan Lippman in the center seat, and continues through the last several years with Janet DiFiore presiding:

(click to enlarge for a better view)

Similar to the figures we've seen previously regarding the Court's caseload (the total appeals and the criminal cases), the Court under Chief Judge DiFiore has been granting far fewer CLAs than the Court had typically done in past years. Indeed, as clearly shown in the graph, the decrease has been drastic. And that decrease began as soon as DiFiore replaced her retired predecessor, Jonathan Lippman.

Let's simplify the graph a bit by looking at 5-year averages--again from the tenure of Chief Judge Sol Wachtler through the recent years under DiFiore. Take a look:

(click to enlarge for a better view)

As the graph makes plain, the Judges of the Court under Chief Judge DiFiore have been granting less than half the number of Criminal Leave Applications that the Judges had been granting under Chief Judges Wachtler and Lippman, as well as during the early years of Chief Judge Kaye's tenure. The only era approaching the decrease that has occurred under DiFiore is that which occurred in the last several years under Kaye. (Notably, that decrease under Kaye followed Republican then-Governor Pataki's harsh criticism of the Court for "coddling" criminals and his appointing a majority of "law and order" Judges to the Court.)

For a seven-Judge court, the annual average of 49 CLA grants under DiFiore equates to an average of  7 CLA grants per Judge. That contrasts with over 14 per Judge under Lippman and during the early years of Kaye's tenure, and with even more than that under Wachtler.

Let's now look more closely at the contrast in CLA grants from the years with Lippman as Chief Judge to those under DiFiore. Specifically, let's take a look at the number of CLAs granted by the individual Judges during those two eras. Here it is:

(click to enlarge for a better view)

[The graph includes the records of all the Judges who were on the Court for at least 3 of the 5 years under either Chief Judge Lippman or DiFiore. All the Judges were on the Court for the full 5 years in the respective eras, except for the Judges who were on for 3 years as indicated by an asterisk.]

As the graph shows, under Chief Judge Lippman, every Judge, except one (Susan Read), was granting more CLAs per year than every Judge has been doing under DiFiore. In fact, Chief Judge Lippman and Judges Victoria Graffeo, Eugene Pigott, and Robert Smith--the latter 3 all appointees of Republican Pataki--were granting more than twice as many CLAs as every Judge has been doing under DiFiore, except for Judge Rowan Wilson.

Notably, Wilson has been granting significantly more CLAs than any other Judge under DiFiore, and he is the only one whose grants approach that of most of the Judges under Lippman. By sharp contrast, three of the Judges under DiFiore--the Chief Judge herself and Judges Leslie Stein and Michael Garcia--granted less than 1/3 of any Judge under Lippman, and far less than that compared to some of the Lippman Judges. In fact, DiFiore, Stein, and Garcia granted less than 1/2 of any other Judge during DiFiore's tenure.

What does all this mean? Well, the most obvious is that parties in criminal cases had a much greater chance of having an appeal heard by New York's highest Court under Chief Judge Lippman than under DiFiore. Beyond that, parties seeking to have their cases reviewed in recent years had better odds of succeeding if their CLAs were assigned to Judge Wilson than to other Judges on the Court. Indeed, if the parties' CLAs were assigned to DiFiore, Stein, or Garcia, their odds of having the Court of Appeals review their cases were greatly diminished than if their CLAs had been assigned to other Judges on the Court--not only Wilson, but also Judges Jenny Rivera or Eugene Fahey.

It is no wonder that the CLA process has come under so much bitter criticism by so many lawyers, judges, and their related organizations. Many agree with Judge Pigott--who happened to serve under Chief Judges Kaye, Lippman, and DiFiore. He has been outspoken about the CLA process in which he had a good deal of experience: "There’s no doubt this has to change. It’s absurd." [As quoted in, Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

Yes, in my view, absurd and terribly unfair. And those characteristics are only intensified when the Court, and specifically some members of the Court, drastically reduce the number of CLAs being granted.