Cuomo Taps Buffalo Justice For Court Of Appeals Post

Gov. Andrew Cuomo nominated Appellate Division Justice Eugene Fahey on Thursday to fill a vacancy on the state Court of Appeals, the state’s highest court.

Fahey, a Buffalo resident, has served on the bench for the last 20 years.

“Justice Fahey’s distinguished career, background and years of service on the bench will make him a formidable member of the Court of Appeals,” Cuomo said in a statement. “His two decades of service in city, state and appellate courts give him a broad perspective, and I am confident he will continue in the proud tradition of the Court of Appeals, providing fairness and justice for all New Yorkers. I am proud to put forth his nomination to the State Senate.”

Fahey also presided over the court ruling that tossed a challenge to the legalization of same-sex marriage in 2011, determining the Senate Republicans did not violate the state’s opening meetings law by having a closed-door conference to discuss the issue.

Fahey was first appointed to the Appellate Division, fourth judicial department, by Gov. George Pataki in 2006 and re-designated twice by Gov. David Paterson in 2009 and Cuomo in 2011.

He’s served on the state Supreme Court since 1996 and earlier as a Buffalo City Court Judge from 1994 to 1996.

Fahey received his undergraduate and law degree at SUNY Buffalo.

His nomination fills the vacancy created by Judge Robert Smith, who was required to retire at the end of 2014 based on the court’s mandatory age limit.

Today was the deadline for Cuomo to have made the nomination to fill Smith’s spot on the court.

Fahey was on the short list to fill an earlier vacancy on the court following another Court of Appeals retirement, Judge Victoria Graffeo.

Instead, Cuomo nomination Judge Leslie Stein of the Albany area to replace Graffeo.

The Stein nomination had been delayed so the state Senate would not have to return to Albany to consider approving her nomination.

Fahey is the fourth nomination to the high court Cuomo has made during his time in office.

Cuomo is on track to have nominated all of the members of the Court of Appeals due to mandatory retirements.

Court Of Appeals Hears Case Over Teen’s Missing Brain

The state Court of Appeals today is hearing a case being brought by a family suing New York City after it took the medical examiner’s office months to return the brain of their deceased 17-year-old son.

The case could have an impact on whether the city officials can removed organs from bodies without informing the next of kin.

The case stems from 2005, when teen Jesse Shipley was killed in a car accident on Staten Island in January.

An autopsy was performed at the consent of his father. During that process, Dr. Stephen de Roux removed Jesse Shipley’s brain for further examination.

Shipley’s family later buried Jesse’s body, unaware his brain was still in the medical examiner’s office.

Two months after his funeral, students from Jesse’s former high school took a trip to the medical examiners office and spotted the brain in a jar labeled with his name. The grisly discovery soon made its way back to Jesse’s sister, also a student at the school.

The brain was finally returned in October 2005 to the family, who performed a second burial and funeral service.

When asked about the two-month gap between autopsy and examination of the teen’s brain, de Roux testified that it was not uncommon.

“I wait months, until I have six brains,” he said according to court documents.

The family is suing the city based partially on the common-law right of sepulcher, allowing next of kin the right to a deceased’s body for preservation and burial. The family also points to a section of the public health law that requires a loved one’s remains be turned over for proper burial “once the legitimate purposes for the retention of those remains have been fulfilled.”

An initial trial awarded the Shipleys $1 million, but a subsequent ruling reduced it to $600,000.

The city argues neither the right of sepulcher or the public health law applies.

“It follows that the legitimate purposes for the retention of the parts have been fulfilled,” the city has argued in court, adding that the medical examiner was under no requirement to inform the family when organs are removed for special examination.

Staten Island Lawmakers To Push Grand Jury Transparency

Two state lawmakers from Staten Island will push for reforms to the state’s grand jury proceedings that will be aimed at requiring more information on their deliberations be released.

Democratic Assemblyman Matt Titone and IDC Sen. Diane Savino announced in a joint statement on Friday afternoon they plan to pursue the changes, which come after a grand jury in their home borough voted to not indict NYPD officer Daniel Pantaleo in the choking death of Eric Garner stemming from a July incident.

“There is no reason the public should be denied the opportunity to view information presented after the Grand Jury has made its final recommendations,” Savino said in a statement. “Whenever you have a case like that of Eric Garner, it is important that people can still trust in the legal system. The only way to do that is with complete transparency of the facts presented.”

The legislation would be aimed at allowing district attorneys to unveil information grand juries considered, including evidence and testimony. The measure would still include confidentiality protections aimed at individual jurors.

The grand jury’s decision this week has set off a wave of protests across the county as well as in New York City.

The case is under review by the U.S. Department of Justice and an internal NYPD investigation.

Staten Island District Attorney Dan Donovan on Wednesday petitioned the courts to release more information pertaining to what the grand jury heard in the Garner case.

The court agreed to a limited release of information, detailing only how long the grand jury sat for, how many witnesses gave testimony and how many exhibits were entered into evidence.

No details were provided as to what specific evidence was examined or the identities of the witnesses along with what information they told the jury.

Gov. Andrew Cuomo has raised the possibility of grand reform changes as well, suggesting he would also be open to requirements that a special prosecutor be appointed in such cases.

In announcing the planned legislation, Titone said the Garner case “clearly demonstrates” the need for changes in how grand juries operate.

“We recognize and fully appreciate the need to protect witnesses and jurors in the Grand Jury process, however the public trust and confidence in our justice system must be addressed and reforms implemented,” Titone said. “The Eric Garner case clearly demonstrates this.”

Judge Approves Limited Release Of Garner Grand Jury Proceedings

A Staten Island judge on Thursday approved a limited release of information detailing the grand jury proceedings and investigation into the death of Eric Garner at the hands of a New York City police officer.

The court revealed that the grand jury sat for nine weeks, and heard 50 witnesses give testimony, 22 of whom were civilians. The rest were police, emergency medical personnel and doctors.

The grand jury also was present with 60 exhibits entered in evidence, which included four videos, records on NYPD policies, medical records on Garner’s treatment and autopsy photographs. Records related to NYPD training were also made available.

No details were provided as to what specific evidence was examined or the identities of the witnesses along with what information they told the jury.

Judge Stephen Rooney wrote in his decision that while the proceedings of a grand jury in state law should continue to be considered confidential, trust in the criminal justice system has been shaken by the decision to not indict Officer Daniel Pantaleo in Garner’s death.

“It is from this vantage point that a limited incursion into the sacrosanct principle of grand jury secrecy is deemed necessary to serve overarching public interest,” Rooney wrote in his ruling.

At lengthy, Rooney in his order wrote the confidentiality of grand jury proceedings not be infringed. However, the Garner case warranted what he considered a special consideration.

“Somewhat uniquely in this matter, the maintenance of trust in our criminal justice system lies at the heart of these proceedings, with implications affecting the continuing vitality of our core beliefs in fairness, and impartiality, at a crucial moment in the nation’s history, where public confidence in the even-handed application of these core values among a diverse citizenry is being question,” Rooney wrote.

Staten Island District Attorney Dan Donovan said in a lengthy statement released on Wednesday that he was seeking the court order to release details on the grand jury proceedings following the vote to not indict Garner.

Gov. Andrew Cuomo indicated earlier today he would seek changes to the grand jury process, including potential transparency provisions.

Garner 2014 by Nick Reisman

No Indictment In Eric Garner Case

From our colleagues at NY1:

Sources tell NY1 there will be no indictment in the case against a police officer shown on video putting a fatal choke hold on Eric Garner in July.

The State Island grand jury determined that Officer Daniel Pantaleo will not face any charges in the case.

The medical examiner later concluded the choke hold was the cause of death.

The grand jury’s decision comes several weeks after a Missouri grand jury decided to not charge Ferguson Officer Darren Wilson in the shooting death of Michael Brown.

The NYPD had been making preparations in the lead up to the decision in the Garner case regardless of the outcome.

“I think that there will be an ability that people will get to have their voice heard without disturbance. We, on the other hand, on the police side, will naturally gear up to deal with any potential contingency that might occur,” Commissioner Bill Bratton told reporters on Tuesday. 

Sources told NY1 the grand jury has been meeting twice a week up until this point.

Updated: Some reaction is already coming in to the decision.

Assemblyman Karim Camara, the Brooklyn Democrat who chairs the Black, Puerto Rican, Hispanic and Asian Legislative Caucus said the lack of an indictment is an “outrage.”

“However, it’s important that we first remember that Mr. Garner’s life was lost and even an indictment would not have brought him back. Our thoughts and prayers should be with his family today,” he said. “The failure on Staten Island to indict, unfortunately, continues a pattern in New York City where people of color are policed differently than whites, often to the point of harassment or violence. The lack of indictment, even with the video evidence that New Yorkers have watched in horror, is yet another example of New York City leading the nationwide revival of occupation style policing that was so prevalent in the Jim Crow South.”

PBA President Pat Lynch, meanwhile, said that while the union is pleased with the outcome, there “are no winners” in the result.

“There was a loss of life that both a family and a police officer will always have to live with. It is clear that the officer’s intention was to do nothing more than take Mr. Garner into custody as instructed and that he used the take down technique that he learned in the academy when Mr. Garner refused. No police officer starts a shift intending to take another human being’s life and we are all saddened by this tragedy.”

Pantaleo also released a statement through the PBA.

“I became a police officer to help people and to protect those who can’t protect themselves,” he said. “It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”

Klein Backs Stein Nomination, Skelos Disappointed

Independent Democratic Conference Leader Jeff Klein in a statement released Friday said he supports the nomination of Leslie Stein to the state Court of Appeals, but his governing partner in the Senate, GOP Leader Dean Skelos is disappointed Gov. Andrew Cuomo chose to not re-appoint a Republican.

Gov. Andrew Cuomo nominated Stein this afternoon, ending the tenure of Judge Victoria Graffeo, an appointee of George Pataki, on the state’s highest court.

“Judge Graffeo has served with distinction for the past 14 years and was identified as the most qualified of the seven potential candidates,” Skelos said in a statement.

He added that “an earnest and thorough review of the Governor’s nomination of Justice Stein” will be coming in the following weeks.

Skelos had initially called on Cuomo to re-appoint Graffeo, but Cuomo opted to go with Stein, an appellate court judge in Albany.

Cuomo’s nomination of Stein is supported by Klein, a Bronx Democrat who is the co-leader along with Skelos in the state Senate.

“I applaud Governor Cuomo on his selection of Justice Leslie Stein to serve as our newest member on New York State’s highest court,” Klein said. “Without question, Justice Stein offers the appropriate balance of judicial experience and empathy that New Yorkers have come to expect from our legal system. Her diversity is her strength, having served in various capacities on the bench, beginning with the local courts all the way up to the State Appellate Division. Well-qualified and highly regarded amongst her peers, I look forward to her confirmation by the Senate.”

Stein’s spot on the court is pending Senate confirmation.

Stein is Cuomo’s third nomination to the Court of Appeals. He will make a fourth nomination when Judge Robert Smith retires at the end of the year.

Skelos Goes To Bat For Justice Graffeo

Senate GOP Leader Dean Skelos has made his preference known regarding the impending vacancy on the state’s highest court, issuing a statement in support of Justice Victoria Graffeo’s reappointment.

In his statement, released last night, Skelos said Graffeo has “served with distinction” during her 14-year term, and “is well regarded by legal scholars and her peers.”

“In fact, she is the most qualified of the seven candidates whose names were submitted to the Governor, and is the only nominee to achieve the highest rating from both the New York State Bar Association and the New York City Bar Association,” the senator, a Long Island Republican, continued.

“I have always found Judge Graffeo’s decisions to be sound, balanced and well reasoned, and if she is reappointed she could continue to serve in this capacity for the majority of another term.”

“New Yorkers should not be deprived of a justice with her experience and qualifications. I strongly urge the Governor to reappoint Judge Graffeo to the New York State Court of Appeals.”

Graffeo, a Republican appointed by former Gov. George Pataki in 2000, is 62 and won’t reach the mandatory retirement age for Court of Appeals Judges for another eight years. (An effort to extend that age via a constitutional amendment, which Cuomo opposed, failed last year).

Reappointing Graffeo would enable Cuomo to look bipartisan, following the lead of his father, former Gov. Mario Cuomo, who appointed both fellow Democrats and Republicans to the state’s highest court.

Graffeo was the only Republican on the list of nominees submitted to Cuomo by an independent panel charged with providing the executive with choices of potential high court justices.

She’s one of four Republicans currently serving on the court, along with Associate Judges Robert Smith, Eugene Pigott and Susan Read.

If he’s re-elected next month, Cuomo will have the opportunity to re-make the entire Court of Appeals.

He has already made two appointments: Jenny Rivera, a Latina and law professor, (replacing Carmen Beauchamp Ciparick, his father’s appointee and the first Hispanic judge on the court); and Sheila Abdus-Salaam, an associate justice in the appellate division, who is the first black woman to serve on the court, (she replaced the late Theodore Jones, an African-American appointee of former Gov. Eliot Spitzer).

Cuomo recently missed the statutory deadline to make a decision on Graffeo, saying he needed another two weeks to consider his appointment.

Had he chosen Graffeo’s successor – or reappointed her – on the required deadline of Oct. 3, the Senate would have had 30 days to confirm the choice, bringing it right up to the Nov. 4 general election.

Cuomo said he didn’t want his decision to get caught up in the politics of the election season.

But clearly, Skelos is not as interested as keeping this issue out of the political arena.

Graffeo has a number of supporters in the legal and political communities. But opponents of her reappointment are starting to speak out, too.

The Human Rights Campaign, America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality, recently wrote to Cuomo, urging him not to reappoint Graffeo based on her LGBT record.

And Democratic Assemblywoman Deborah Glick, the first openly gay member of the Legislature, also spoke out against Graffeo, saying she has “displayed a hostile posture in regard to the LGBT community.”

Federal Judge Rejects Libous’ Motion For Details On Case

A federal judge this week denied a request from the attorney of Sen. Tom Libous seeking more information on prosecutor’s case against the Binghamton lawmaker, according to court documents.

Libous attorney Paul DerOhannesian filed papers this week seeking a range of information beyond what was included in this month’s indictment that charged the number two Republican in the state Senate with lying to the FBI.

DerOhannesian provides legal analysis on TWC News.

The information sought by DerOhannesian included requesting federal prosecutors to identify the “exact statements” Libous allegedly made to the FBI as well as the questions agents posed to him.

Reportedly, the conversation between Libous and FBI — which stemmed from whether the lawmaker arranged for his son to receive a job at a politically connected law firm in Westchester County — was not recorded.

But the motion was denied by U.S. District Court Judge Vincent Briccetti on the grounds the request for information was “premature.”

“Although the Court does not presume to tell defense counsel how to defend this case, it might be more efficient to review the discovery produced by the government and then make an informal written discovery demand for the information to which counsel believes defendant is entitled but has not yet received,” the judge ruled.

Libous Motion by Nick Reisman

Libous Motion Denied by Nick Reisman

Lippman Pushes Credit Collection Reform

Chief Judge Jonathan Lippman at a Commencement Law Day gathering on Wednesday announced plans to overhaul credit collection lawsuits — a move designed to aid the poor and elderly who are sued by debtors.

Among the changes Lippman is implementing with the state court system include new requirements that creditors must submit affidavits that include detailed proof in support of a default judgment and would ban robosigning.

The affidavits submitted by creditors would also have to become more specific in their allegations.

Lippman wants statewide rules that would end the practice of suing on debt after the statute of limitations has expired. This is meant to stop the so-called “sewer service” in consumer debt cases.

The court system is also requiring “user-friendly” forms that would provide consumers appearing in court to have access to information and resources, which is aimed at allowing them mount an appropriate defense.

“While no one disputes that consumers should pay their debts or that businesses have every right to resort to the courts to collect what is legally owed to them, the Judiciary has an obligation to prevent inequitable debt collection practices in the courts and ensure a fair legal process for all litigants. Dubious consumer debt litigation practices can lead to unwarranted default judgments, often with devastating consequences for the debtor ─ typically a lower-income New Yorker struggling to support a family and find or maintain a job,” Lippman siad in a statement.