Courts

Judge: State Should Release SAFE Act Stats

New York state is being ordered by a state Supreme Court judge to release the statistical data on the number of firearms registered under the SAFE Act.

The ruling was issued on April 30, but released earlier on Thursday by the Shooters Committee on Public Education, or SCOPE, a gun-rights group that had challenged the state’s refusal to issue details on how many fireamrs have been registered.

At the moment, the State Police have said the information is not required to be released to the public under the 2013 law.

But Judge Thomas McNamara disagrees that the state has the right to not release the information.

“The exemption asserted by the agency does not apply to the records sought by the petitioner and as that is the only basis offered by the agency for denying access, the records should be provided,” McNamara wrote in the ruling.

Gun-rights groups have contended the number of weapons registered under the SAFE Act is a relatively small, if not insignificant amount that renders the requirement toothless. They point to the lack of transparency regarding the statistical data as having lent credence to the claim.

The SAFE Act does prohibit the release of gun permit holders’ names who have filed for an exemption to keep that information private. It also prevents the database, kept by the State Police, from being released publicly.

Grisanti, Biben Up For Judicial Posts

Republican former Sen. Mark Grisanti and one-time ethics and lobbying regulator Ellen Biben are being considered for judgeships at the Court of Claims.

Meanwhile, David Sampson, a former DMV official in the Cuomo administration, has also been nominated to the Court of Claims.

Their nominations will be considered among a dozen other candidates at the Senate Judiciary Committee’s Tuesday meeting, according to an agenda from the panel.

Grisanti is a former lawmaker who lost his seat last year to Democrat Marc Panepinto and was the last sitting Republican senator who had backed the effort to legalize same-sex marriage.

Grisanti, a former Democrat who also supported the 2013 gun control measure known as the SAFE Act, was a legislative ally for Gov. Andrew Cuomo.

Rumors around western New York had swirled that Grisanti was poised to be nominated for a judgeship by Cuomo, but he had declined to confirm any nomination.

Another Cuomo ally, meanwhile, will also be considered for the bench.

Biben, a former Manhattan assistant district attorney, worked with Cuomo during his days in the state attorney general’s office.

After he was elected governor, Cuomo installed Biben as the state inspector general, and later as the executive director of the newly formed Joint Commission on Public Ethics.

Biben left that post in 2013 to pursue what JCOPE said would be opportunities in the private sector.

Philanthropic Groups Sign On To Raise The Age Campaign

A coalition of philanthropic organizations on Friday released a letter to legislative leaders and Gov. Andrew Cuomo urging them to adopt proposed changes to the state’s juvenile justice system.

At the heart of the push is an effort backed by Cuomo to raise the age of criminal responsibility to be in line with nearly every other state in the country.

“What the data, and the experience of other states, tells us is that this doesn’t make our communities safer,” the groups write. “Instead, children who go through the adult system are more likely to reoffend and less likely to go on to a productive life – making us less safe and ruining lives in the process.”

Those signing on to the letter include the David Rockefeller Fund, the Andrus Family Fund and Tiger Foundation among others.

The letter comes after a group of sheriffs from around state signed a letter backing the juvenile justice reforms as well.

March 5 2015 Letter to Gov Cuomo Senate Majority Leader Skelos and Assembly Speaker Heastie3 by Nick Reisman

Erie County DA Knocks Lippman’s Criminal Justice Approach

From the Morning Memo:

The state’s top judge wants to reform what he calls a “relic” of the criminal justice system: grand juries.

In particular, Court of Appeals Chief Judge Jonathan Lippman is calling for new transparency measures when it comes to cases involving police-related deaths of civilians.

And more controversially, Lippman’s bill in those instances would take the process away from local prosecutors and hand it to judges.

In his State of the Judiciary address this week, Lippman painted the proposal as one that helps district attorneys.

“Able and dedicated prosecutors and the grand jury process cannot win in these inherently incendiary situations. Damned if you do and damned if you don’t, no matter how strict the adherence to fairness and the rule of law,” he said.

Lippman repeatedly referred to the current grand jury system as being in need of an update.

“The strict secrecy of grand jury proceedings – originating in medieval England and mandated in New York by statute – can be detrimental to access to justice and public debate over issues of compelling public interest,” Lippman said.

Not so fast, said Erie County District Attorney Frank Sedita, who also leads the statewide district attorneys association.

In an interview, Sedita took issue with the proposal to have judges reside over such cases, saying such a move is a distinctly European import.

“Our Founding Fathers had rejected that system,” Sedita said.

Sedita questioned Lippman’s criteria for making changes to the grand jury process, which the judge defined in his speech as “cases of significant public interest.”

“As a technical legal matter, I have no idea what that means,” Sedita said.

Overall, the DA’s association is “generally supportive” of Gov. Andrew Cuomo’s criminal justice reform measures, which includes the appointment of a special monitor to consider a special prosecutor in certain cases.

Sedita said he and other district attorneys continue to discuss the reform efforts with Cuomo’s office.

But he also cautioned against wholesale changes.

“The broader issue that’s here is the courts get their legitmacy basing their deicsions on law and facts, and not marrying what they do to the popular will and the popual whim,” he said. “I have never heard of a triggering event of what is popular and what is not.”

State’s Top Judge Calls For Grand Jury Transparency (Updated)

The state’s top judge on Tuesday called for a package of reforms to the legal system’s grand jury process, including transparency in cases involving deaths of civilians caused by police officers.

In addition to the transparency measures, Chief Judge Jonathan Lippman called for judges to oversee grand jury proceedings involving cases in which law enforcement has killed an unarmed civilian, not district attorneys.

More broadly, the push for grand jury reform began last year, after a Staten Island grand jury declined to indict a New York City police officer in the choke hold death of an unarmed black man, Eric Garner.

The case, along with a police shooting in Missouri of teenager Michael Brown that led to no charges of a local police officer there, led to a series of protests in cities around the country and a debate over police tactics as well as calls to reform the criminal justice system.

Lippman, in his address inside the state Court of Appeals courtroom before a collection of judges and legal professionals, called the current grand jury process in New York “antiquated.”

The measure Lippman is introducing would apply to cases in which a grand jury has declined to issue charges or return no bill. Testimony of experts and public officials would be made public, while the names of civilian witnesses could be redacted from the record.

Grand jury information could be released in cases in which there is “significant public interest” and that it’s generally known a proceeding is underway.

“The strict secrecy of grand jury proceedings – originating in medieval England and mandated in New York by statute – can be detrimental to access to justice and public debate over issues of compelling public interest,” Lippman said in his annual address, known as the State of the Judiciary.

Lippman said there are many reasons why a grand jury’s proceedings should be kept confidential including preventing a subject from fleeing prosecution and encourage witnesses who are reluctant to talk.

“While these are all laudable reasons for secrecy, they do not justify the breadth of the current law that bans virtually all disclosure, and although nominally allowing a court to grant disclosure, provides no guidance as to when to do so,” Lippman said.

The bill would still have to pass the state Legislature, where Senate Republicans have shown little willingness to take up legislation that would change how grand jury proceedings are conducted.

Democrats in the Senate back the use of body cameras for police, as well as the creation of an Office of Special Investigation to oversee grand jury cases involving law enforcement.

Attorney General Eric Schneiderman has called for a special prosecutor to be appointed in cases of policy brutality while legislation in Albany is considered.

Gov. Andrew Cuomo, meanwhile, has said he would appoint a special monitor in cases in which police officers are not indicted in grand jury cases.

Updated: Schneiderman in a statement called Lippman’s proposals “thoughtful” and said they should further the debate over criminal justice reforms.

“Over the last few months, we have seen an emerging consensus on the need for essential reforms in our criminal justice system and grand jury process to restore public trust and confidence. As he has done so many times throughout his tenure, Chief Justice Lippman today outlined a thoughtful set of proposals that will further our state’s debate. I welcome his remarks, and look forward to working with the Chief Justice, the Governor, and Legislature to pass meaningful reform during this legislative session.”

Soj 2015 Final by Nick Reisman

Senate Approves Fahey And Stein Nominations (Updated)

Updated: The full Senate on Monday afternoon approved the nominations to the Court of Appeals, the third and fourth appointments Cuomo has made to the state’s highest court.

With little drama, the Senate Judiciary Committee on Monday unanimously voted to advance the nominations of Eugene Fahey and Leslie Stein to Court of Appeals to the full Senate.

Both Stein and Fahey are expected to be approved later today.

Judiciary Committee Chairman John Bonacic, an Orange County Republican, was especially effusive in his praise of both nominees, who appeared back to back before the panel.

“I think you have those qualities of being a judge’s judge,” Bonacic told Fahey, a Buffalo-based Appealate Court justice. “I think you will be a judge’s judge.”

He echoed those compliments to Stein, of Albany County.

“I think you’re going to make a great Court of Appeals judge,” he said.

Both Stein and Fahey faced questions from state lawmakers on how they would rule based on the state constitution, as well as questions about the SAFE Act, the administration’s ban on hydrofracking and the 2009 ruling that granted the governor the power to appoint a lieutenant governor in the event of a vacancy.

“I don’t think I’ve ever felt the need to deviate from the letter of the constitution,” Stein said while being questioned by Seneca County Sen. Michael Nozzolio. “Sometimes it’s just not clear what the letter is calling for.”

She added: “I simply view each case with an open mind.”

Stein was first nominated in October after Gov. Andrew Cuomo declined to re-appoint Victoria Graffeo, who was first nominated by Republican Gov. George Pataki.

Fahey, nomniated in December, replaces retired Judge Robert Smith, another Pataki appointee.

Though delayed by several weeks, the nominations of Fahey and Stein saw relatively smooth sailing compared to the Judge Jenny Rivera’s nomination in 2013.

At the time, Republican lawmakers questioned her qualifications for the post. Bonacic went as far as to suggest she had been nominated because Cuomo wanted to add an Hispanic to the court.

In the end, Rivera’s nomination was approved.

Cuomo’s Two COA Picks To Appear Before Senate Panel

From the Morning Memo:

Despite being nominated months apart for the Court of Appeals, Gov. Andrew Cuomo’s two pending nominees for the state’s highest court will both appear later today before a Senate Judiciary Committee meeting.

Both nominees are Cuomo’s third and fourth appointments to the court.

Lawmakers will hear from both Leslie Stein, an associate justice of the Appellate Division of Albany, and Appellate Division Justice Eugene Fahey of Buffalo, at its 11:30 meeting.

Stein was nominated to fill the vacancy on the Court of Appeals created when Judge Victoria Graffeo, an appointee of Republican George Pataki, was not re-appointed.

Senate Majority Leader Dean Skelos made a last-minute plea to keep Graffeo, to no avail.

Stein’s nomination was made back in October.It had been delayed by two weeks as the governor’s office cited exceptions in the law for making judicial nominations.

At the same time, Cuomo had wanted to avoid a political fight over the nomination just before an election.

Fahey, meanwhile, was nominated in December to replace another Pataki appointee, Judge Robert Smith, who was required to retire at the end of last year.

Neither nomination is expected to generate much controversy in the full state Senate, which is tasked with approving the nominations.

If he serves out his current term, Cuomo will be able to remake the entire composition of the court with his appointments.

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.”