NYCOA: Cuomo's Latest Two Nominees (Part 2--Some Perspective)

Governor Andrew Cuomo has now nominated 4 Judges for New York's 7-member Court of Appeals. Hence, if Appellate Division [The state's mid-level appeals court.] Justices Leslie Stein and Eugene Fahey are confirmed by the state's Senate, as is widely expected, this Governor will have appointed a majority of New York's high court.

Selection by appointment was adopted for the state's high court Judges in 1977--thus ending the previous system of partisan elections. Since then, 3 Governors have had the opportunity to appoint a majority of the Court's sitting members. Those 3 are Mario Cuomo, George Pataki, and now Andrew Cuomo.

Let's take a look at their appointments.

Mario Cuomo
Richard Simons (Republican, Upstate)
Judith Kaye (Democrat, NYC) [Assoc. Judge & Chief Judge]
Sol Wachtler (Republican, L.I.) [elevated to Chief Judge]
Fritz Alexander (Democrat, NYC)
Vito Titone (Democrat, NYC)
Stewart Hancock (Republican, Upstate)
Joseph Bellacosa (conservative independent. Upstate/NYC)
George Bundy Smith (Democrat, NYC)
Howard Levine (Republican. Upstate)
Carmen Ciparick (Democrat. NYC)

George Pataki
Richard Wesley (Republican. Upstate)
Albert Rosenblatt (Republican. Upstate)
Victoria Graffeo (Republican. Upstate)
Susan Read (Republican. Upstate)
Robert Smith (Republican. NYC)
Eugene Pigott (Republican. Upstate)

Andrew Cuomo
Jenny Rivera (Democrat. NYC)
Sheila Abdus-Salaam (Democrat. NYC)
Leslie Stein (Democrat. Upstate)
Eugene Fahey (Democrat. Upstate)

Governor Mario Cuomo's nominations were truly diverse. Not only by gender, race, ethnicity, and geography, but by political party as well. Indeed, even the ideological diversity of his appointees could hardly have been more pronounced.
Regarding the latter, there was Vito Titone and Carmen Ciparick, both Democrats and both compiled unmistakably liberal records. Then there was Richard Simons and Joseph Bellacosa, one Republican and one independent, but both had records just as unmistakably conservative.

Governor George Pataki's nominees, by sharp contrast and design, were a veritable sea of red. Expressly insistent on placing tougher law and order Judges on the Court, he appointed all Republicans. Beyond that, his 6 appointees have, in fact, all been at least somewhat ideologically conservative. They have ranged from the  moderately so, such as Albert Rosenblatt, to the more staunchly and consistently so, such as Susan Read.

Governor Andrew Cuomo's nominees, as we have noted on other occasions, have all been Democrats. The pattern of his 4 nominees to date has been more like Pataki's than like his father's. Partisan uniformity. Political homogeneity. All 4 the same political party. All 4 at least somewhat liberal--from moderately so to very much so.

Let me be clear. Andrew Cuomo's nominees will likely vote more like I prefer, and like I would, than the Republicans appointed either by his father or by Pataki generally would. I will most likely be delighted by the increasing protection of the rights of the accused, the worker, women, minorities, and the environment--to name just a few matters--that can be expected with a Democratic majority on the Court.
(And I'll go further: there are other Democrats I would love to see appointed to the Court.)

But there is a danger in politically uniform appointments, in appointments along party lines. A variety of perspectives--political, ideological, philosophical, etc., etc.--is always healthy. Some balance. Some variety. A mix.

Not a "mix" like the U.S. Supreme Court. No, not like that. Not like the Supreme Court with both major political parties represented in almost equal number, but each side so resolutely one sided, closed-minded, bitter and blind to the merits of the other. Republican presidents appointing intensely conservative ideologues. Democratic presidents appointing equally intense liberals. No, that's a recipe for disaster. And, sure enough, that's what the Supreme Court is today.

But if Republican governors are intent on appointing only conservative Republican Judges, and Democratic governors respond by appointing only liberal Democratic ones--if the Governors of New York persist in a pattern of  back-and-forth political party purity, instead of following the example that had been set by Mario Cuomo--then New York's esteemed high court risks going the way of the extremely polarized and indisputably mediocre Supreme Court. A court that is hopelessly and predictably (if not robotically) divided on most tough issues along political party lines.

One last point about all this.
Consider the Republican Judges placed on the Court of Appeals by liberal Democrat Mario Cuomo.
Consider Richard Simons. Stewart Hancock. Howard Levine.
These were all extraordinarily fine Judges.
Those who follow the Court of Appeals--whether Democrat or Republican, liberal or conservative, Upstate or Downstate--understand that these are some of the most highly and widely admired Judges to have sat on our high court in the last few generations.

Consider too: Democratic President Woodrow Wilson appointed Republican Louis Brandeis to the Supreme Court.
Republican Herbert Hoover appointed Democrat Benjamin Cardozo.
Republican Richard Nixon appointed Democrat Lewis Powell.
In the eyes of many, those were among the finest acts of those presidents.

Democrat Mario Cuomo's appointments of Republican Judges Simons, Hancock, and Levine were, likewise, among the finest acts of his governorship.
Many of us court watchers--perhaps, particularly those of us who have worked at the Court, who as New Yorkers are proud of it, and who view it as historically one of the truly fine institutions of this state and, indeed, of the nation--would hope to see the example of Governor Mario Cuomo's non-partisanship in appointments become more the rule than the exception.

In the next installment of this series, we'll see what can be made of nominee Leslie Stein's record while on the Appellate Division.

Tribute to Judge Stewart F. Hancock, JR., 1923–2014, in the Albany Law Review

(photo by F. Ordonez, The Post-Standard)

The recently published issue of the Albany Law Review  opens with a dedication to Stewart F. Hancock, Jr., who served on the New York Court of Appeals, the state's highest court, and passed away earlier this year.

The dedication to Judge Hancock includes a tribute by Judge Richard D. Simons, his dear friend and colleague on both the Court of Appeals and, previously, on the New York's Appellate Division, 4th Department. It is the eulogy Judge Simons delivered at the Memorial Service for Judge Hancock, on March 7, 2014, at the Park Central Presbyterian Church in Syracuse.
TRIBUTE TO JUDGE STEWART F. HANCOCK, JR., by Richard D. Simons, HERE or HERE.

The dedication also includes some reflections by John O‟Brien, a reporter with the Syracuse Post-Standard, who has covered the Court of Appeals and wrote about Judge Hancock for many years.
THOUGHTS ON JUDGE HANCOCK, by John O’Brien, HERE or HERE.

Finally, the dedication includes my own few words about the Judge.
I was the beneficiary of several extraordinary years serving as the law clerk for this extraordinary man, and of many more years thereafter as his friend.
FOREWORD: STEWART F. HANCOCK, JR., 1923–2014, by Vincent Martin Bonventre. HERE or HERE.

[See also John O'Brien's report in Judge Hancock's hometown newspaper, the Syracuse Post-Standard, Stewart Hancock, former judge on state's highest court, dies at home in Cazenovia, HERE.
The obituary in the Post-Standard is accessible HERE.]

still more on NYC's Stop & Frisks (Part 4: still more on New York vs. Supreme Court)

(Well, after summer classes, there was Saratoga. What can I say?

And even before the meet ended, school began. So now, after my summer and back-to-school respite, New York Court Watcher is back.
Back where we left off. Then on to all sorts of other fascinating and important developments in courts, judges, and judicial-related politics. Glad to be back.) 

In previous posts, we've used NYC's aggressive stop & frisk program as a springboard to examine some basic differences between the Supreme Court's decisions, which have diluted search & seizure protections, and NY Court of Appeals case law, that is more rights-protective.

Traffic stops, automobile searches, canine sniffs, searches of private property, street encounters, bus sweeps, etc. In all, New York's highest court takes the fundamental right against unreasonable searches and seizures much more seriously than does the federal Supreme Court.

Let's finish this series of posts with a few more critical differences.

Searches of bags, luggage, other items upon arrest:

As we discussed in Part 1 of this series, New York's DeBour rule requires the police to have some legitimate suspicion of criminality in order to approach a person and ask to search. The Supreme Court requires absolutely no justification to do the same.
What about situations where a person has already been legally arrested? What may be searched--without a warrant--incident to that arrest?

Lawrence H. Cooke

The Court of Appeals has--no surprise--required some justification for a warrantless search of bags, luggage, or other items within the so-called "grabbable area" of a person who's been arrested.
There must be some "exigent" circumstance--e.g., possible danger to the public or the police, or the possible destruction of evidence. If there's no such exigency, a warrant (supported, of course, by probable cause) is required for such a search.
So, if a person has been arrested and handcuffed, or otherwise taken into police custody, and he cannot access his bag or luggage or some other property, it can't be searched without a warrant.
Not under New York's case law, that is. (People v. Gokey, 1983; another court opinion by Chief Judge Cooke.)

more New York City's Stop & Frisks (Part 2: more New York vs. Supreme Court)

In this post, let's look at a few other situations in which New York's highest court, the Court of Appeals, requires some actual justification for a search, but the Supreme Court requires none--absolutely none.

The differences are particularly pertinent in the discussion of New York City's aggressive stop and frisk policy. What about that policy?

Well, according to the NYPD's own reports, nearly 700,000 people were stopped last year by the police in New York City.
Nearly 90% of those stopped turned out to be innocent of whatever they were presumably stopped for and, in fact, of anything else.
Less than 10% of those stopped were White.

Hmmm. No wonder there is a growing outcry.

[A recent discussion of the City's stop and frisk policy, on Northeast Public Radio's Vox Pop with me as the guest, is available at: Vox Pop : Open Forum – ‘Stop and Frisk’ with Albany Law School’s Vince Bonventre : 7/17/12.]

In the last post, we discussed recent decisions of New York's mid-level appeals court that invalidated 2 stop and frisks of teenagers in the Bronx. We considered the implications of those decisions being based on New York State case law, rather than that of the U.S. Supreme Court. In short, the added protection of search and seizure rights afforded by New York's case law makes Supreme Court decisions irrelevant. Beyond that, New York decisions that enforce such added protection cannot even be reviewed by the Supreme Court.
[See New York City's Stop & Frisks (Part 1), July 29, 2012.]

We contrasted the New York Court of Appeals' landmark DeBour decision and its progeny with corresponding decisions of the Supreme Court. In a few words: New York's high court requires some legitimate suspicion to justify incriminating questions and requests to search; the current Supreme Court insists that the federal Constitution requires no suspicion--indeed, no justification whatsoever.

Now, let's briefly review some other search and seizure situations in which the New York court and the Supreme Court take opposing views. In each one, the New York Court of Appeals (as the final authority on New York law) requires some actual justification for intrusive conduct by the police. The Supreme Court (as the final authority on the federal Constitution) requires none.

[And no, I'm not exaggerating. And no, don't blame me for what--in my view and I'm sure many readers will agree--are mostly dreadful search and seizure decisions of the Supreme Court. I didn't appoint them!]

Searches of private property:

Stewart F. Hancock, Jr.

The New York Court of Appeals requires a warrant and probable cause--i.e., reasonable ground to believe particular criminality or evidence thereof--before police may enter and search someone's private property. Seems pretty unexceptional. Unless there's a genuine emergency, police need a warrant, supported by probable cause, to search someone's property. (People v. Scott, 1992; court opinion by Judge Stewart F. Hancock, Jr.)

On the other hand, the Supreme Court requires no warrant, no probable cause, no reasonable suspicion, no legitimate hunch, nothing. Even if the property owner has posted No Trespassing signs and erected a fence! That's right. As long as the police stay outside the "curtilage"--i.e., the area immediately adjacent to the residence [peeping distance]--that Court requires no justification whatsoever.