Monday, November 24, 2014

Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

As most readers know, Gov. Andrew Cuomo disregarded the Judiciary Law's nomination deadline, and now the Senate has disregarded the deadline for confirmation.
There's no issue here as there is regarding the President's executive order power. No. Both the Governor and the Senate have unambiguously and unashamedly violated the law. (Interview with Karen Dewitt, Senate To Miss Deadline to Approve Court Pick .)
But now, Judge Graffeo.

Victoria A. Graffeo's 14-year term on the Court of Appeals, New York's highest tribunal, comes to an end this week. A highly regarded and well-loved jurist, she was widely supported for reappointment by members of the bench and bar, regardless of party affiliation or political ideology.

The Governor chose otherwise. He chose to follow the example of former Governor George Pataki, rather than that of his father and, indeed, of every other Governor--as well as of both major political parties, throughout the last century, during which selection and re-selection was by election. (See Part 2 [Renominations Historically]) Presuming that the Senate will eventually convene and confirm Cuomo's pick--the well-qualified Appellate Division Justice Leslie Stein--the Graffeo seat on the Court will be filled and she will have been replaced.

Well, actually, it will take some time before Judge Graffeo can be "replaced" in any sense of experience, wisdom, and well-earned esteem. She has evolved over the course of her 14 years on New York's highest Court to rank among the most admired Judges of the modern era. Those seasoned jurists who understand the judicial role; exercise it with insight, independence, impartiality, and exquisite judgment; and, as a result, render decisions and author opinions that reflect those qualities, uphold the most cherished principles, and are recognizable as precedents that will stand the test of time.

Yes, that has been Judge Graffeo and her work on the Court of Appeals.

Let's take a look at just a few of her opinions over this last year of her term. It will more than demonstrate my point:

People v. Marquan M.--The local cyberbullying law at issue, intended to protect minors, was constitutionally invalid because it was overbroad.
"[T]he text of the statute...'create[d] a criminal prohibition of alarming breadth.' The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children."
Wallach v. Town of Dryden--Local zoning ordinances prohibiting hydrofracking in their municipalities are not preempted by state oil and gas law.
"These appeals are not about whether hydrofracking is beneficial or detrimental [but] whether the state legislature eliminated the home rule capacity of preserve the existing character of their communities."
People v. Rivera--A trial judge's instruction, outside the presence of the defendant, to a deliberating juror who requested clarification requires reversal of the conviction.
"A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury."
People v. Washington--A driver who consents to a breathalyzer still has a right to consult with counsel before he performs that test.
"The fact that the defendant not dispositive since the defendant, after consulting with counsel, could have revoked her consent...The police must therefore advise the accused that a lawyer has made contact." 
People v. Tyrell--Where the trial record does not show that the defendant understood the rights he was waiving by pleading guilty, the conviction must be reversed.
"[T]o constitute a knowing, voluntary and intelligent [guilty] plea, there must be 'an affirmative showing on the record' that the defendant waived his constitutional rights."
Holmes v. Winter--A New York journalist will not be ordered to comply with an out-of-state subpoena to appear in a proceeding and reveal confidential sources.
"There is no principle more fundamental or well-established [in New York] than the right of a reporter to refuse to divulge a confidential source...[A]n order from a New York court directing a reporter to appear...would offend our strong public policy--a common law, statutory and constitutional tradition." (See NY Court of Appeals: Freedom of the Press Taken Seriously.)
People v. Wells--The guilty plea based solely on the trial judge's erroneous denial of a suppression motion should be vacated.
"Harmless error...can be 'difficult to apply to guilty pleas'--especially in cases involving 'an improper denial of a pretrial motion to supress'--since 'a defendant's decision to plead guilty may be based on any factor inside or outside of the record.' Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review."

Well, those are a few of the significant majority opinions authored by Judge Graffeo--just over the past 12 months.
Now is that the kind of record that demonstrates clearly that the authoring Judge deserved reappointment, and emphatically so?
A pretty strong consensus of the bench and bar certainly think so.

Now consider this: Is that the kind of record that suggests some overriding partisan--i.e., Republican--bent?
Is it the kind of record that evinces some strong ideological--i.e., conservative--leaning?
Is it the kind of record that demonstrates some pattern of hostility to positions generally favored by liberal Democrats?
Well of course not.

And yet, curiously--very curiously--in the 2 weeks following Governor Andrew Cuomo's decision to delay his selection for the Court of Appeals, public opposition to Graffeo's reappointment suddenly emerged, suggesting just that. Individuals and groups claiming that she was too conservative suddenly found their voices and aired their complaints. Those opposition voices, instigated into action or not, provided some political cover for the Governor who would surely be criticized for not reappointing Judge Graffeo--as he has been. And justifiably so. That 2 week ordeal not only violated the Judiciary Law deadline, but it was just plain unseemly.

More importantly, however, the ultimate result is that the Court of Appeals, and indeed New York State for which it decides the most fundamental issues, is now denied the judicial services of a truly fine Judge. An experienced and wise Judge. (Let alone a wonderful, committed, caring  human being--also pretty good qualities for a Judge.) A Judge who has served on New York's high court with exceptional distinction. Who brought great credit to the Court, enhanced its reputation, set an example of extraordinary dedication, and leaves a record that is worthy of this nation's best courts and best Judges.

Thank you Judge Victoria Graffeo for your great service.