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Chief Judge Shortlist Offers Hochul a Stark Choice

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This story originally appeared in <a href="https://nysfocus.com/2022/11/28/kathy-hochul-new-york-court-of-appeals-shortlist">New York Focus</a>, a nonprofit news publication investigating power in New York. <a href="https://nysfocus.com/newsletter?utm_source=partner&utm_medium=website" target="_blank">Sign up for their newsletter here</a>.<hr>CRIMINAL JUSTICE · November 28, 2022
<h1>Chief Judge Shortlist Offers Hochul a Stark Choice</h1>
<h2>Former Chief Judge Janet DiFiore’s unexpected resignation gave the governor a chance to reshape the Court of Appeals. Her pick will affect New Yorkers' rights for years to come.</h2>
<h3>By <a class="yellow-underline" href="https://nysfocus.com/author/sam-mellins">Sam Mellins</a> , New York Focus</h3><figure><img src="https://imgproxy.gridwork.co/gtx-FRldoQAhlMhPgHZ2vZTLpmKDcCuoi75rbbFFUus/w:820/h:569/rt:fill/g:fp:0.5:0.5/q:90/el:1/aHR0cHM6Ly9zMy51cy1lYXN0LTIuYW1hem9uYXdzLmNvbS9ueXNmb2N1cy9ob2NodWwtYXBwZWFscy5qcGc.jpg" alt="" /><figcaption>Kathy Hochul with previous Chief Judge Janet DiFiore. / Office of Governor Kathy Hochul</figcaption></figure><div>GOVERNOR KATHY HOCHUL has less than a month to pick the next chief judge of New York’s top court. Last Wednesday, a state panel sent her a <a href="https://cjn.ny.gov/system/files/documents/2022/11/press_release_for_chief_judge_vacancy_report_and_bios.pdf">shortlist</a> of seven candidates to lead the Court of Appeals — as the top court is somewhat confusingly called — and replace the conservative judge who steered it before. Hochul’s decision, due by December 23, will set the ideological direction of the sharply divided court for years to come. 
Once confirmed by the state Senate, Hochul’s pick will replace former Chief Judge Janet DiFiore, who <a href="https://nysfocus.com/2022/07/12/difiore-resignation-court-of-appeals/">resigned abruptly</a> in August after a nearly seven-year tenure. During DiFiore’s last year on the Court of Appeals, she led a four-judge <a href="https://nysfocus.com/2022/07/07/court-of-appeals-conservative-bloc/">conservative bloc</a> on the seven-member body that voted in lockstep on virtually every case, issuing a slew of 4–3 rulings restricting the rights of criminal defendants, employees, and tenants. Without her, that bloc is one vote shy of a majority, meaning that the new chief will cast the deciding vote on many future cases. 
The shortlist contained candidates from a range of professional and ideological backgrounds, including the court’s current acting chief judge, a Yale Law professor who worked on the Biden administration’s Covid response, a former prosecutor with the Suffolk County District Attorney, and an attorney with the criminal defense nonprofit Legal Aid Society. 
Shortlisted candidate Corey Stoughton, who leads special litigation at the Legal Aid Society, has <a href="https://legalaidnyc.org/news/corey-stoughton-criminal-defense-practice-special-litigation-unit/">framed her work</a> as part of a “struggle to end mass incarceration” and “confront the racism at the root” of the criminal justice system. She arguably represents the most progressive of available choices, with the other end of the ideological spectrum taken up by two sitting judges in the state’s mid-level appeals courts known for their hostility towards defendants. 
Hector LaSalle, a former prosecutor at the Suffolk County District Attorney’s office, is known as one of the most conservative judges on his appeals court, which covers parts of New York City and its suburbs. Since joining the court in 2014, LaSalle has <a href="https://casetext.com/case/people-v-sanchez-1378">repeatedly</a> <a href="https://law.justia.com/cases/new-york/appellate-division-second-department/2020/2017-00603.html">dissented</a> <a href="https://casetext.com/case/people-v-delvillartron">from</a> <a href="https://casetext.com/case/people-v-nettles-41">decisions</a> reversing or vacating convictions. 
Jeffrey Oing, who serves on an appeals court covering Manhattan and the Bronx, also tends to side with the prosecution. In 2020, he wrote a <a href="https://casetext.com/case/people-v-watt-321">dissent</a> objecting to the court’s decision to reduce a sentence from 14 years to 10 for an intellectually disabled individual who had pled guilty to attempted murder. 
The other candidates are two judges — Anthony Cannataro, the <a href="https://nysfocus.com/2022/08/29/janet-defiore-anthony-cannataro-chief-judge-court-of-appeals/">current acting chief</a> of the Court of Appeals, and Edwina Richardson-Mendelson, judge of the state claims court and current acting justice on the State Supreme Court — and two academics — Abbe R. Gluck, a professor at Yale Law and Medical Schools, and Alicia Oullette, the president and dean of Albany Law School. 
If Cannataro gets the job, he may well pick up where DiFiore left off: The two judges voted in lockstep on every case they heard together. If Hochul picks Cannataro to be the chief, and the nomination process will restart to fill Cannataro’s current slot as an associate judge, with Hochul making a new selection from a new shortlist. In the meantime, the court’s current composition will remain unchanged. 
Many rulings under DiFiore, who joined the court as chief in 2016, <a href="https://nysfocus.com/2022/07/07/court-of-appeals-conservative-bloc/">restricted defendants’ civil liberties</a>, upending a state court system that has historically safeguarded <a href="https://www.wnyc.org/story/undoing-governor-cuomos-court/">New Yorkers’ rights</a>. Since she resigned, the six sitting judges — five of whom are Democrats — appear to have deadlocked three-to-three on several cases involving the rights of New Yorkers when they are arrested. The court ruled that those cases must be reargued in the future, meaning that the next chief judge will likely get to pick the winner. Court of Appeals spokesperson Gary Spencer declined to say whether the court split evenly in those cases, but said it was a “reasonable” assumption. 
Hochul hasn’t spoken publicly about the shortlist, but in a <a href="https://www.nydailynews.com/opinion/ny-oped-the-chief-judge-new-york-state-deserves-20221123-k65ukkzzajf57cxb6graeyvtse-story.html">Daily News op-ed</a> published hours before the list came out on Wednesday, she framed her impending pick as a crucial counterweight against the conservative US Supreme Court. In the wake of the Supreme Court’s decisions restricting <a href="https://www.npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn">reproductive rights</a> and <a href="https://nysba.org/the-supreme-courts-bruen-decision-and-its-impact-what-comes-next/">gun control</a> this year, New Yorkers “are now relying on our state courts more than ever to protect our rights,” Hochul wrote. 
Asked for comment on the list, Hochul’s office referred New York Focus to the Daily News op-ed. 
A Divided Court 
Cannataro — the only sitting Court of Appeals judge on the list for the top spot — joined the court in 2021 along with former Nassau County District Attorney Madeline Singas, who was <a href="https://nysfocus.com/2021/06/04/cuomo-court-of-appeals-singas-nomination/">widely known</a> for opposing criminal justice reforms. The pair replaced judges who sometimes acted as swing votes. Along with DiFiore and Judge Michael Garcia, the court’s only Republican, the conservative bloc voted together in 96 out of the court’s 98 cases in its most recent full term. 
But in the months since DiFiore’s resignation, the court has seen a series of even splits. Beyond the conservative bloc, the court currently has two consistent liberals, Judges Jenny Rivera and Rowan Wilson, and one swing vote, Judge Shirley Troutman, a Hochul nominee who joined earlier this year. The new chief will have to decide three cases in which the more liberal judges deadlocked with the conservatives — all in cases concerning New Yorkers’ rights in police encounters. 
In one, the court was asked to rule on whether bicyclists are pedestrians or vehicle drivers for the purpose of police stops: Police are required to have a <a href="http://nassau18b.org/search_seizure/debours%20four%20levels.pdf">higher level of suspicion</a> before stopping and searching drivers than pedestrians, and the defense asked the court to apply that heightened standard to bicyclists. 
Another dealt with New Yorkers’ right to a lawyer when arrested, which is <a href="https://nassau18b.org/confessions/New%20Yorks%20Indelible%20right%20to%20counsel.pdf">more extensive</a> than the national version of that right and is triggered whenever police obtain an arrest warrant. Defense lawyers argued that police had violated the right by deliberately not obtaining an arrest warrant before going to arrest a suspect at his home so they could question him without a lawyer present. 
In the third, the court was asked to rule whether or not New York City Police Department procedure that allows objects seized from suspects to be unattended before being logged presents a risk of evidence tampering. 
Vincent Bonventre, an expert on the Court of Appeals and a professor at Albany Law School — whose president is among the seven contenders for chief — said that he hopes Hochul’s pick will “restore the prestige and the reputation of the court,” which he said suffered during DiFiore’s leadership. 
“So many of the decisions [under DiFiore] haven’t been very good, not simply because they’re liberal or conservative,” he said. “The decisions are just not persuasive unless you wanted that result to begin with.” In many cases, the court didn’t issue written opinions explaining its legal reasoning, but instead issued “memorandums” — brief summaries of rulings not signed by any particular judge — a practice which Bonventre said particularly damaged the court’s reputation. 
Whoever Hochul chooses to lead the court’s six judges will be subject to confirmation by the state Senate when it reconvenes in January. And confirmation is all but guaranteed: The Senate has never rejected a governor’s nominee for the Court of Appeals.</div>	 
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