Courts

Rep. Collins Opines On Potential Supreme Court Nomination

New York Republican Congressman Chris Collins said he will support whoever the president announces tonight as his pick to fill the latest Supreme Court vacancy.

Collins expects the selection to come from Trump’s reported shortlist, whittled down from the same initial list which turned up last year’s apointee, Neil Gorsuch. The congressman added “with our president you just never know.”

However, he does believe whoever the nominee is will ensure a constitutional conservative court for the next three to four decades.

“It’s a legacy no other president has and President Trump will have gotten that opportunity in his first two years as our president,” he said.

Assuming the judge comes from the list Trump made public during his 2016 candidacy, Collins noted all of the judges have been vetted by the conservative Federalist Society. He said they all meet the criteria, but as a member of the House he won’t have any say in the nominee’s confirmation.

Collins expects at least some partisan posturing.

“I don’t, wouldn’t use the word easy. It’s probably going to fall along lines, the same thing we’ve seen when last week we didn’t get a single Democrat to vote for the Farm Bill of all things,” he said.

With John McCain absent, dealing with health issues, the current split in the U.S. Senate is 50-49 in favor of Republicans. Three Democrats, did approve Gorsuch and Collins believes at least some of them could do the same this time around, in a scenario where a GOP senator, Susan Collins or Lisa Murkowski perhaps, decides to break rank.

He said he expects the potential judge to face tough questions during the confirmation process, but issued a warning.

“Litmus test questions are not appropriate, so someone who says I want to know for sure this judge is not going to overturn Roe V. Wade, which seems to be the issue on some minds, that’s not even an appropriate question to ask,” Collins said.

Collins said he does not think the court would even take up Roe V. Wade but if senators want to determine how a judge would vote, they need to look at their records. He said he does believe the president’s appointment can be confirmed by September.

Schumer Says Most Americans Want A Mainstream SCOTUS Candidate

Senate Minority Leader Chuck Schumer, D-NY, spoke more in Buffalo about the pending nomination of a new Supreme Court justice.

Hours earlier, the New York Times published an editorial written by Schumer in which he suggested if the Senate rejected an extreme conservative nomination, it would force the president to put forward a more moderate candidate.

“What I think most Americans want is a mainstream candidate who will not invoke new law but will go for existing law. I don’t like candidates far right or far left because they try to make law,” he said.

Schumer reiterated key parts of his editorial including pointing to the recent Janus ruling, as an example of the court ignoring longstanding precedent to rule with more political motivations. He said he is particularly concerned about what another far-right justice would mean with regards to women’s reproductive health and the health care system as a whole.

“Many of us are worried that if you roll back the clock on so many different rights of people, that would be a bad thing,” he said.

The minority leader suggested it was not just Democrats who have concerns about an “extreme” candidate. That will have to be the case if he hopes to either push the president toward the middle of the aisle, or at least hold a vote off until after the November mid-term election.

“We have to wait and see the nominee,” he said. “Obviously the nominee needs 51 votes so it will have to be bipartisan opposition to do it and we’ll have to wait and see who the nominee is.”

Republican Senator Susan Collins, for instance, has said she will not support a SCOTUS pick who is hostile to abortion rights. Just swinging one Republican would not necessarily be enough even though there are currently only 51 members of the GOP holding the Senate majority.

When Justice Neil Gorsuch was nominated, three Democrats supported his appointment. Schumer believes things will play out differently this time though.

“I think it’s a little different than Neil Gorsuch because he ideologically was quite the same as the person he was replacing, Justice Scalia,” he said. “There will be more scrutiny and more concern.”

Faso Weighs In On Pending Supreme Court Vacancy

Republican Congressman John Faso weighed in the soon-to-be vacant Supreme Court seat which has already spurred much controversy in Washington.

Justice Anthony Kennedy said he will retire this summer and Senate Republicans are hoping to confirm his replacement before the fall mid-terms. As a member of the House, Faso doesn’t have a direct say about who is nominated and confirmed.

“Obviously this is something that doesn’t come up very often but with Justice Kennedy’s retirement after 30 years on the bench, it’s going to be a contentious issue,” he said.

The congressman mentioned President Donald Trump’s list of about two dozen potential candidates but did not say who he would prefer, nor did he talk about when the confirmation should take place. Instead, the Republican said it’s time for the nation’s highest court to get back to basics.

“I’m hopeful the president will nominate someone who wants to interpret law, not make law. The Supreme Court has become, in the minds of many people, another legislative body and I think that’s wrong,” he said.

Kennedy has been the critical swing vote on a number of major decisions, lately leaning conservative. The appointment of another conservative justice by Trump could potentially shape the court for decades.

Attorney Sinatra Could Be Nominated For WNY Federal Judgeship Soon

We may be nearing the long-awaited appointment of a new federal judge for the United States District Court’s Western District of New York. Two sources believe Buffalo-area lawyer John Sinatra Jr. will be put forward by the White House as the nominee.

Sinatra currently is a partner at Hodgson Russ LLP. He also served as Senior Counsel for the U.S. Department of Commerce under the George W. Bush administration.

In December, the Buffalo News reported President Donald Trump’s administration floated Sinatra’s name for the vacant judgeship. Despite solid recommendations from the Buffalo legal community, good government groups said they were concerned about Republican Congressman Chris Collins’ business relationship with the attorney’s brother, developer Nick Sinatra.

The nomination was never made official and brought before the U.S. Senate for confirmation. One source said New York’s two Democratic senators, Kirsten Gillibrand and Minority Leader Chuck Schumer, who have an outlet to block judicial nominations from their home state, were holding it up.

However, if that were the case, Schumer indicated during a press conference Monday in Niagara Falls it may no longer be an issue. Without revealing the person, Schumer said he had spoken with local attorneys, Republicans and Democrats, about the candidate and received a vote of confidence.

“The White House has recommended somebody Republican. I’ve seen the name. I’ve told the White House that I think this would be a good nomination for the federal bench but they haven’t made the name public so I don’t want to,” Schumer said.

The position has technically been vacant since Judge William Skretny stepped aside in March 2015, although Skretny has continued to assist the backlogged court under “senior status.”

In March 2016, President Barack Obama nominated another Buffalo attorney, Kathleen Sweet, for the bench at the recommendation of Schumer. That nomination was not confirmed by the Senate.

DiFiore Says Court Modernization Underway

A modernization of the state court system over the last year continues as part of an effort to streamline cases and reduce backlogs, Court of Appeals Chief Judge Janet DiFiore said Tuesday during her state judiciary address.

“After almost two years of this sustained and intensely-focused attention to court operations, I am pleased to report that outside New York City our cases are being resolved more efficiently and promptly, and our backlogs are shrinking rapidly,” she said. “In New York City, we have made significant progress in many of our highest volume courts and our leadership team has made operational changes to set the stage for further improvement in those courts where we need to do better.”

DiFiore, nominated and confirmed as chief judge in 2015, pointed to the 61 percent reduction in pending misdemeanor cases in New York City and reductions in some of the oldest pending felony cases by 91 percent in one judicial district alone. Another judicial district saw a 77 percent drop.

There has also been a reduction in civil case backlogs as well.

The address comes after Gov. Andrew Cuomo was critical of the judiciary seeking an increased budget, which the governor insisted should also lead to the courts in the state opening their doors more than three or four days a week and reduce the backlog of cases.

Top State Judge: Child Victims Act Won’t Create Backlog

Supporters of the Child Victims Act on Wednesday are highlighting the testimony of the state’s top administrative judge, who told lawmakers this week the bill would not create a burden on the New York court system.

The measure would make it easier for the survivors of childhood sexual abuse to file lawsuits. The measure has been approved by the Democratic-led Assembly in recent years, but has stalled in the closely divided state Senate, led by Republicans.

“I’m generally familiar with the bill, I’ve read newspaper accounts of the bill – I’m not an expert on that proposal but the reaction is, it’s sort of—officially, without studying the bill itself—is that any concern that we might have, is there going to be a flood of new cases and will add to our case inventory and further frustrate what we’re trying to do in the court system these days to eliminate delays and backlogs, and I have to say I don’t expect that that proposal would lead to a flood of cases,” Marks told a joint legislative budget committee after a question asked by Sen. Brad Hoylman.

“There would be additional criminal cases, but I think we would be able to accommodate. And it would be nothing like the flood of foreclosure cases that we saw from the mortgage crisis from a number of years ago. I’m sure we would be able to accommodate any additional cases that came from that law.”

The bill’s supporters are hoping 2018 will be different in part due to the societal awareness surrounding sexual assault and abuse as part of the #MeToo and #TimesUp movements.

Judge Won’t Move Buffalo Billion Case To Buffalo

A federal judge on Tuesday turned down a request from upstate developers and former SUNY Polytechnic President Alain Kaloyeros to hold their upcoming trial in western New York, according to court filings.

Denying the change of venue from New York City to Buffalo was part of a slew of denials in pre-trial motions made by defense attorneys over the last several weeks. The filing was made public Tuesday by U.S. District Court Judge Valerie Caproni.

Attorneys for the developers LP Ciminelli had argued that holding the trial in Buffalo would have made it easier for them to be closer to home. At the same time, their attorneys argued many of the alleged incidents that resulted in the fraud and bribery charges took place in western New York.

But Caproni was unconvinced.

“While the moving Defendants live with their families in Buffalo, and some witnesses reside in Buffalo, there are also important witnesses elsewhere. And while certain relevant events allegedly took place in Buffalo, other events relevant to the allegations against the moving Defendants took place outside of Buffalo,” she wrote.

Set to begin next year, the trials are expected to center on the web of influence used to secure contracts and other economic development projects as part of the state’s effort to create jobs. A former close aide to Gov. Andrew Cuomo, Joe Percoco, will go on trial next month in connection with charges of fraud and receiving bribes.

Caproni also denied a series of motions that challenged pre-trial statements made by then-U.S. Attorney Preet Bharara, who was fired in March by President Donald Trump. That motion had been made for attorneys representing developers at COR Development.

Caproni wrote in her ruling that she found the argument that the grand jury was unduly swayed by Bharara’s comments — including his catchphrase “stay tuned” — unpersuasive.

“The statements and actions highlighted by the Syracuse Defendants do not constitute evidence of prejudicial preindictment publicity,” she wrote. “The public statements from the then-U.S. Attorney were properly qualified as allegations the Government intended to prove, did not express opinions of guilt, and were couched in generalities.”

Caproni by Nick Reisman on Scribd

Syracuse Development Projects At Issue In Corruption Case

Attorneys for the co-founders of the Syracuse-based COR Development are urging the federal judge in their corruption case to allow evidence that defends how their clients viewed economic development projects that have come under scrutiny in the investigation.

The attorneys in a letter to Judge Valerie Caproni write it’s necessary to demonstrate why Steven Aiello and Joseph Gerardi believed both the FIilm Hub and the Inner Habor projects were in the public value so as to show their “states of mind” when agreeing to take them on.

“This is not an issue that needs to be resolved, but just needs to be aired,” the lawyers wrote in the letter filed on Friday. “The Government’s effort to misleadingly present the Syracuse Defendants as jaded insiders, greedy for profits, should not be tolerated. Moreover, evidence of the perceived public value of the projects in this case is critical to the Syracuse Defendants’ defense. The Film Studio, for example, was a major part of Governor Cuomo’s central New York economic revitalization policy.”

The attorneys add that evidence at the trial will show funding problems put the project at risk, which in turn could have embarrassed Cuomo and hurt his efforts at economic revitalization in the area. Cuomo’s former close aide, Joe Percoco, will go on trial next month on bribery and bid rigging charges.

“This fully explains why Mr. Percoco may have been involved in the funding process for reasons that had nothing to do with bribery from the Syracuse Defendants,” the letter states.

The developers are set to go to trial next year in what is as sweeping bribery and fraud case that also drawn in former SUNY Polytechnic President Alain Kaloyeros.

But even as the attorneys want to defend how Aiello and Gerardi viewed the projects, they won’t be arguing the merits of the projects themselves and the circumstances surrounding not pursuing a labor agreement.

“Evidence about why the Inner Harbor Project was in the public interest similarly sheds critical light on the Syracuse Defendants’ states of mind,” the letter states. “The point is not that, objectively, this was a good public works project. It is rather that the Syracuse Defendants’ understandings of the importance of the project added to their high confidence that they would not be required to get an LPA.”

At the same time, the attorneys argued evidence of the developers’ campaign contributions to Cuomo should not be barred from being discussed at trial and are legally protected by the First Amendment.

In the letter, the attorneys write that ” when constitutionally-protected contributions are trotted out as evidence of a bribery scheme – particularly when they have scant relevance to the alleged scheme – jurors are unlikely to consider them merely on the convoluted signaling theories the Government relies on for its assertion of probative value.”

Gerard i by Nick Reisman on Scribd

Attorneys Spar Over Evidence In Percoco Case

Government prosecutors and attorneys for a former close aide to Gov. Andrew Cuomo are sparring over access to evidence in the corruption trial of Joe Percoco.

In a filing made public last week, Percoco attorney Barry Bohrer contended the U.S. attorney’s office was withholding key evidence in the case.

At the same time, Bohrer revealed details of the interview between prosecutors and Cuomo, as well as Linda Lacewell, the governor’s now-chief of staff.

The portion of the conversation revealed in the letter to U.S. District Court Judge Valerie Caproni shows Cuomo discussing when Percoco, then running his re-election campaign in 2014, would return to the public payroll in the governor’s office.

“Cuomo also stated that Percoco told Cuomo that he was going to take on private clients during the campaign, and Cuomo considered that intended conduct to be a bridge to Percoco’s new life in the private sector,” the letter states. “It was not until the end of the year that Cuomo asked Percoco to change his plans and come back to work in the Chamber for a period of time to stabilize things.”

This is in line with the governor’s public comments last year after Percoco was charged in a bribery and bid-rigging case that includes prominent upstate developers and former SUNY Polytechnic President Alain Kaloyeros.

Percoco claimed he earned as much as $125,000 in consulting fees, according to financial disclosure documents released on Monday by the Joint Commission on Public Ethics.

COR Development, the company that has been a key player in major development projects in Syracuse and Buffalo, paid Percoco, between $50,000 to $75,000 in consulting fees in 2014.

Percoco’s trial is set to begin next year.

The letter also shows Lacewell had learned of Percoco’s plans to return to the governor’s office after Election Day.

Bohrer wrote the information in these interviews “directly undermine crucial elements of the crime charged: that Percoco was a State official at the time he performed an official act, and that he was a State official, held himself out as a future State official, at the time he entered into a quid pro quo agreement with the Syracuse defendants.”

In a subsequent filing released Monday, the U.S. attorney’s office called the concerns “wholly unbelievable” and that the argument is, in essence, a rehash of old information. Federal prosecutors allege Percoco still acted in a “senior advisory function and supervisory role” in the campaign.

“If Percoco has failed to investigate his actions and interactions with others during the 2014 campaign,” the responding letter states, “that is not because the government ever obfuscated the importance of those facts.”

show_temp by Nick Reisman on Scribd

Feinman Sworn In To Court Of Appeals

Paul Feinman was ceremonially sworn in on Wednesday as the newest judge on the state’s highest court — the first openly gay man to serve on the Court of Appeals.

With his family and husband in attendance in the chambers of the Court of Appeals, Feinman spoke of his late brother, a comic and poet, who was also gay, as an inspiration.

“Were it not for him and all the leaders of the LGBT community and the LGBT judges who preceded me in the judiciary, it was all of them who forged a path before me and without them this day would not have been possible,” Feinman said. ”
From this, I understand I have an obligation for those who come after me.”

Feinman is joining one of the more diverse courts in its history, replacing the late Sheila Abdus-Salaam, who police say committed suicide earlier this year. The entirety of the court, based on mandatory retirements, has been nominated by Gov. Andrew Cuomo, a Democrat (Cuomo has appointed a Republican, Michael Garcia).

“Compare this court to any other court in the country — extraordinarily diverse,” said Vin Bonventre, an Albany Law School professor. “I don’t care what the category is. We’ve got a diverse court, which is great, because when they go into conference, they’re going in with different backgrounds, different wisdom, different perspectives.”

Senate Minority Leader Andrea Stewart-Cousins also hailed the moment, and Feinman’s credentials.

“Becoming the Appeals Court’s first open LGBT judge will bring further diversity to our highest court to greater reflect New York’s diverse citizenship,” she said. “Judge Feinman’s qualifications and skills gained throughout his distinguished career will also be a great addition and I wish him well in this great responsibility.”