State Senators, including Democratic #2, ask Hochul to Nominate Public Defender to New York’s Top Court

A 2021 retirement offers Hochul her first chance to shape New York’s Court of Appeals. Her pick will be an early indication of her ideological commitments, Senator Michael Gianaris said.

Sam Mellins   ·   November 14, 2021
Governor Kathy Hochul shakes hands with the Court of Appeals' Chief Judge Janet DiFiore in August, immediately after being sworn in. | Kevin P. Coughlin

Ten state Senators, led by Deputy Majority Leader Michael Gianaris (D-Queens) and Judiciary Committee Chair Brad Hoylman (D-Manhattan) sent a letter to Governor Kathy Hochul on Saturday requesting that Hochul nominate a public interest lawyer to fill an upcoming vacancy on the New York Court of Appeals, the state’s highest court.

The other signatories were Sens. Alessandra Biaggi (D-Bronx), Neil Breslin (D-Albany), Jabari Brisport (D-Brooklyn), Robert Jackson (D-Manhattan), Rachel May (D-Syracuse) Zellnor Myrie (D-Brooklyn), Julia Salazar (D-Brooklyn), and Luis Sepulveda (D-Bronx).

The letter specifically requested the nomination of either Corey Stoughton, a New York City-based attorney at the Legal Aid Society, or Timothy Murphy, a Buffalo-based federal public defender.

Stoughton and Murphy were the only public defenders included on a seven-person shortlist released on October 11. The other five candidates are judges in New York appellate courts.

Citing Stoughton’s and Murphy’s “commitment to our state’s marginalized communities” and “demonstrated understanding of the impact of the law on our state’s most vulnerable,” the letter urged Hochul to select either of them as the replacement for Judge Eugene Fahey, who will be retiring from the seven-member court at the end of 2021.

Gianaris told New York Focus that whether Hochul selects Stoughton or Murphy “is a very good indication of her commitment to governing in a way that represents those who have traditionally been left behind and disempowered.”

“She’s done a good job of steadying the ship after the debacle of Andrew Cuomo. What remains unknown is how she’s going to govern from an ideological perspective, and this will be a good indicator,” he said.

Vincent Bonventre, a professor at Albany Law School and an expert on the Court of Appeals, said that experience as appellate judges was a point in favor of the other five candidates, especially since Fahey is currently the only judge on the Court of Appeals with appellate experience.

“It is important for judges on the Court of Appeals to have some understanding of what goes on at the appellate [courts],” Bonventre said. “You’re going to be left with a huge gap when Eugene Fahey leaves because of that.”

Hochul could announce her pick as soon as tomorrow. Under New York’s law governing judicial appointments, she has a window from November 15 to December 1 to select Fahey’s replacement. That candidate will then be subject to a vote by the state Senate.

Some experts understand the current Court of Appeals to be a moderating force on the overall liberalism of New York politics, and see in Fahey’s replacement the possibility of a more progressive high court.

“This is a quite conservative court,” Bonventre said. “If [Fahey’s replacement] is a little more socially and politically liberal, and persuasive, you could have a real change in the ideological direction of the court.”

Confirmation Battles

Appointments to the Court of Appeals generally have not been sites of political conflict. New York’s constitution gives the state Senate the power to reject a nominee by majority vote, but the Senate has never done so.

But in June, then-Governor Andrew Cuomo’s final nominations to the court became the subjects of a fierce battle, with progressive advocates mounting a frantic but ultimately unsuccessful effort to block confirmation of then-Nassau County District Attorney Madeline Singas to the Court. (Cuomo’s other appointee, New York City administrative judge Anthony Cannataro, did not provoke public opposition.)

Much of the opposition from advocates and the ten Democratic state Senators who voted against Singas’ nomination centered on her opposition to recent criminal justice reforms passed by the legislature.

Singas’ opposition to 2019’s bail reform law was “a non-starter for me,” Brisport said at the time.

During Singas and Cannataro’s confirmation processes, both Gianaris and Hoylman became targets of advocates’ ire for not publicly opposing Singas, even as other Senators came out against her nomination. Gianaris supported Singas and whipped votes for her confirmation.

“We were presented a nominee, and the choice was do we support that nominee, or do we not,” Gianaris told New York Focus. “I was making a choice based on what the governor had sent to us.”

In September, Gianaris wrote a letter to the Commission on Judicial Nominations urging them to consider shortlisting candidates with backgrounds in criminal defense and other public interest fields for future openings on the Court of Appeals.

And in October, the advocates who organized the campaign against Singas’ nomination created a group that they called UnCuomo The Court, with the goal of pressuring Hochul and key state senators to increase the number of public interest lawyers appointed to judgeships.

Avi Small, a spokesperson for Hochul, said that Hochul is "reviewing" the shortlist, and that she is "committed to nominating highly qualified, independent, and diverse individuals to the courts."

Peter Martin, a New York City lawyer and an advocate with UnCuomo the Court, said that a meeting between the group and Hochul’s staff in early November was a positive sign.

“I was gratified that the governor’s staff took a meeting with us,” Martin said. “Being a new governor who’s also running for reelection, it’s apparent that Governor Hochul wants to and has to listen to a wider range of voices” than Cuomo, he added.

A Conservative Court

Of the seven judges currently on the court, all of whom were appointed by Cuomo, three are former prosecutors and only two are generally considered to be solidly liberal—Judges Rowan Wilson and Jenny Rivera.

Besides Wilson and Rivera, “the approach of the other five judges is pro-prosecution,” said an attorney familiar with the court, who requested anonymity to speak frankly. Those judges are “less receptive to defense arguments about...all sorts of stuff,” than Wilson and Rivera, the attorney said.

Singas and Cannataro have heard few cases since joining the court in June, but in several key rulings, they have joined majorities siding with prosecutors and large corporations.

Both judges joined the majority in a recent case that made it more difficult for New Yorkers to sue out-of-state corporations that do business in New York, and two cases that sided with law enforcement against defendants who argued that they had been subject to unconstitutional searches.

Adding a more liberal-leaning lawyer to the court would still leave pro-prosecution judges with a four-to-three majority. But it would also present an opportunity to switch the balance of the court when Chief Judge Janet DiFiore reaches the mandatory retirement age of 70 in 2025.

“That will be a real opportunity to put a fourth progressive on the court, and flip the balance of the court. But we can only do that if we get a progressive into this seat,” said Noah Rosenblum, an NYU Law professor and advocate with UnCuomo the Court.

Even without creating a liberal majority on the court, adding another judge with experience in criminal defense could still change the court’s impact on New York politics.

“Having cases decided 4-3 sends a very different signal to the legislature than if a case is decided 5-2,” Rosenblum said.

“If you’re a legislator, and you’re paying attention to dissents, a 4-3 [ruling] really signals that the law could have gone the other way on this one, so you should consider stepping into this breach and fixing it,” Rosenblum added.

In a 2018 case, the court threw out a securities fraud lawsuit by the New York Attorney General’s office against Credit Suisse in a ruling that weakened a key New York anti-fraud law. Judge Rivera wrote a lengthy dissent in which she called on the legislature to overturn the legal change wrought by the Court’s decision.

Just over a year later, the legislature did exactly that, passing a law that codified Rivera’s understanding of the case.

A Lighter Caseload

A judge with a defense background could also mean that more people accused of crimes would get to make the case for their innocence at the Court of Appeals. Both plaintiffs and defendants can ask the Court of Appeals to reconsider lower courts’ verdicts in criminal cases.

If a request is made, the Chief Judge assigns the request to one of the seven judges, who decides whether the Court of Appeals should grant leave and hear the case.

Under Chief Judge DiFiore, who joined the court in 2016, the rate of criminal appeals heard by the Court has plunged. From 2018 to 2020, the court heard 32 criminal appeals per year on average, Newsday reported in July, two or three times lower than under the previous Chief Judge.

DiFiore is seen as in large part responsible for the present decline. “Almost certainly it’s attributable to the leadership of the chief judge,” Bonventre said.  Early in her tenure, DiFiore urged a state appellate court to cut back on the number of cases that they allowed to reach the Court of Appeals.

“My big hope is that the new judge will grant leave [to present cases to the Court of Appeals] at the historical rate,” the attorney said.

“We Learned Our Lesson”

Advocates with UnCuomo the Court are hopeful that lessons learned from the Singas fight will produce a different result this time around.

“The biggest difference is that we started organizing around the Singas nomination after the nomination was made. We learned our lesson from that,” Martin said.

“It’s clear that engaging from the beginning allows for much greater opportunities than trying to stop, on an emergency, last-minute basis, a train that’s already in motion.”

Gianaris said that his letter was reflective of a Democratic Senate majority that intends to take a more active role in gubernatorial appointments, citing his and other Senators’ opposition to Hochul’s pending nomination of professor and financial technology entrepreneur Adrienne Harris to a key regulatory post as another example.

“We’re already flexing our legislative muscles more than in the past,” he said. “This has been the most involved advocacy effort leading up to a nominee that I’ve seen, and so far it’s been successful.”

Read the full letter below:

Correction: An earlier version of this article misstated the name of a Court of Appeals judge. She is Jenny Rivera, not Jenny Garcia.

Sam Mellins is senior reporter at New York Focus, which he has been a part of since launch day. His reporting has also appeared in The San Francisco Chronicle, The Intercept, THE CITY, and The Nation. 
Also filed in New York State

More counties are turning to private corporations to run medical care in jails. The companies have deadly track records.

Rebecca Lamorte was let go by her employer in June, prompting the Assembly Speaker to place an upset call to her boss.

For tenants in the first upstate city to adopt rent stabilization, benefiting from the law’s basic protections is an uphill battle.