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.

Lippman Says Judicial Age Raise ‘Still Makes A Lot Of Sense’

Court of Appeals Chief Judge Jonathan Lippman told me an interview last week that he still believes in the push to raise the retirement age for judges, adding that the measure should be revisited at some point.

“I think it still makes a lot of sense,” he said. “We’ve got to find a way to get that message across.”

Voters this past November turned down a proposal to increase the retirement age for certain state judges. Under the failed amendment, judges on the state Supreme Court and on the Court of Appeals would retire at 80, up from the current retirement age of 70.

Lippman himself will be forced to retire in 2015.

Sitting judges cannot advocate for a constitutional amendment, but the measure was supported by a political action committee that included contributions from retired judges, as well as the state’s top politically connected law firms.

Lippman himself insisted he never coordinated with the committee, Justice For All.

Opposing the measure, albeit quietly, was Gov. Andrew Cuomo, who will be able to remake the entire Court of Appeals with his own appointees due to pending retirements should he be re-elected to a second term.

Still, Lippman believes the amendment should have another shot.

“We’re going to revisit it,” Lippman said in the interview. “I think that we have to take a look at the proposal. The proposal that was on the ballot was not the one we submitted or at least I submitted. We want to take a look at it, go back to the drawing board, get a proposal that will hopefully affect all of our judges.”

Lippman said the public needs to be presented with a proposal framed this way: “To keep the experienced, wise judges is good for our society, good for citizens and something that makes sense.”

It’s not entirely clear what form another age raise amendment campaign would take, and voters wouldn’t be able to consider such a move for at least several years.

“I think we can do that, but it’s got to be thoughtful,” Lippman said.

In State Of The Judiciary, Lippman Focuses On Legal Services For The Poor

Chief Judge Jonathan Lippman on Tuesday called for enhancing legal services for the poor and indigent in his State of the Judiciary address, while also pushing a 2-1/2 percent funding increase for the court system’s budget.

Before a packed audience in the Court of Appeals ornate chambers, Lippman pushed for a variety of methods that would expand the use non-lawyers to provide legal services, relying on trained legal experts and third-year law students.

The address at the same time emphasized legislative proposals that crack down on wrongful convictions, reform the juvenile justice system and add 20 judges to the Family Court system.

Lippman proposed the Pro Bono Scholars program, which would require third-year law students to provide up to 500 hours of legal work on the behalf of the poor. In exchange, students in the program would be eligible to take the state Bar Exam in February as opposed to July.

The state court system currently requires law students to practice 50 hours of pro bono legal work.

For the Pro Bono Scholars program, Lippman is turning to Associate Judge Victoria Graffeo to lead an advisory committee of law school deans to develop the timetable and implementation of the program.

At the same time, Lippman backs a plan that would expand the role of non-lawyers providing legal services to the poor.

Lippman backs a proposal that would allow trained, non-lawyers called navigators to be permitted to accompany unrepresented litigants in the courtroom in the Brooklyn Housing Court and Bronx Civil Court.

Though they won’t be permitted to address the court, Lippman said the navigators will “provide moral support” as well as answer factual questions if directed by a judge.

“All these efforts will help us address the crisis in civil legal services for the poor in ways that will supplement services provided by the legal profession, which has nothing to fear from these new projects. These efforts are aimed at groups who cannot afford to pay a lawyer under any circumstances and are unable to access free legal services,” Lippman said. “And they seek to provide information and help that fall outside the practice of law.”

Lippman also backs a proposal that would help those convicted of low-level misdemeanors and non-violent felonies the ability to expunge criminal history records provided that they can live a “law-abiding lifestyle.”

Lippman wants to create a uniform system for dealing with DWI cases that is aimed at reducing repeat offenses. Lippman backed a plan that would establish DWI parts in the superior court in every state county.

Judges will receive special training for the DWI cases and treatment will be mandatory for those who are identified to have an alcohol or substance abuse dependency.

Lippman called for more spending in the state court budget, saying the years of austerity budgets have impacted those who need access to the courts.

“The people of New York, who so often come to us at their most vulnerable moments, cannot afford to see courtrooms close, or court hours reduced or the wheels of justice come to a halt,” he said.

Court Of Appeals Sides With Fox News Reporter

The state Court of Appeals in a ruling released Tuesday sided with a Fox News reporter who authorities in Colorado are trying to compel her to reveal her source.

In a 4-3 ruling, the court found that the state’s shield law applies to reporter Jana Winter, who had reported on the contents of a notebook written by alleged Colorado movie theater shooter James Holmes.

While officials wanted to know who her source was for obtaining the notebook, lawyers for Winter argued that she was protected under the state’s shield law for reporters.

In the majority opinion, Judge Victoria Graffeo stressed it was not granting the state’s shield extra authority in another state and that its ruling was narrow:

And lest there be any confusion, we reiterate that the issue we confront is whether a New York court should issue a subpoena compelling a New York journalist to appear as a witness in another state to give testimony when such a result is inconsistent with the core protection of our Shield Law. Thus, the narrow exception we recognize today, which permits a New York court to consider and apply New York’s journalist’s privilege in relation to issuance of its own process — a subpoena — in a narrow subset of cases, is not tantamount to giving a New York law extraterritorial effect.

In a dissenting opinion, Judge Robert Smith — the father of BuzzFeed editor Ben Smith — said just because the communication took place in New York doesn’t mean the state’s shield law applies.

“I do not think this is a proper case, however, because the allegedly privileged communications took place wholly in Colorado, and the New York Shield Law does not apply to them,” Smith wrote.

190710996 Foxnews Court by Nick Reisman

Fox News Reporter’s Case Could Test Strength Of Shield Law

The state Court of Appeals on Tuesday will hear the case of a Fox News reporter who is being asked to release the name of a source who provided her with the details of the diary kept by James Holmes, the man accused of killing 12 people in a shooting rampage in Aurora, Colorado.

The case could challenge New York’s Shield Law for those acting as journalists and how far it can stretch in other states.

In a story posted on Fox News’s website, Winter reported Holmes had mailed a notebook of details of how he was going to kill people to a University of Colorado psychiatrist before the attack in the movie theater citing two law enforcement officials.

Attorneys for Holmes claim the release of the details violated a judicial gag order and, despite calling 14 different law enforcement officials to court, it was not determined who leaked the information.

Following that, attorneys for Holmes began the current proceeding in Manhattan Supreme Court to compel Winter to testify and produce notes on her sources.

Holmes’ lawyers argue New York’s law doesn’t apply in this case.

“… It calls into question whether this matter truly embodies a conflict between evidence privileged under New York law and and evidence that is unprotected in the demanding State.”

But Winter’s attorneys disagree, stating in court documents that the state’s shield law is “violated when a court of this state directs a report to appear in another state, where the purpose of requiring her appearance is to obtain from her the identity of her confidential sources, and where this is a substantial possibility that he demanding court will issue such a directive.”

Political Consultant Melvin Lowe Charged With Fraud

Prominent political consultant Melvin Lowe is in federal custody today after being charged in a nine-count federal complaint that includes multiple charges of fraud and criminal tax violations.

According to the complaint filed in U.S. District Court, Lowe is accused of failing to report more than $2 million in his consulting income from the Democratic Senate Campaign Committee.

He is accused of using a fraudulent invoice to defraud DSCC and its contributors out of $100,000.

Lowe is accused of taking $100,000 in payments from the Democratic conference’s campaign account for direct mail printing services that were never actually provided.

Federal officials are also accusing Lowe of making a payment of $20,000 to an unspecific consultant several days after a Senate lawmaker — identified in the complaint as “Senator No. 1″ promised to pay the consultant for services already provided.

Lowe was one of nine people who had been secretly recorded by now ex-Sen. Shirley Huntley, a Queens Democrat who was jailed in connection with a scheme to siphon funds from a non-profit she controlled.

Lowe, 52, has been a prominent figure in New York political circles for more than a decade. He was mentioned in the acknowledgements section in Gov. Andrew Cuomo’s book “Crossroads.”

LoweMelvin Complaint by Nick Reisman