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When asked to assess Governor George E. Pataki’s appointments to the state’s four intermediate appellate courts, attorneys who regularly practice in them have few reservations about the quality of the jurists. For the most part, they say Mr. Pataki’s appointees are intelligent, well-mannered and serious about deciding cases quickly. The tenor of these courts is more conservative than in years past, but not dramatically so. Most say that each of the four appellate divisions have maintained many previously held unique characteristics despite the number of appointees from one governor. Yet many attorneys give Mr. Pataki overall low marks for his judicial selections, and for one reason alone: the lack of diversity. Mr. Pataki’s appointments were almost exclusively male and white. While the pool of elected Supreme Court justices – the only members of the bench eligible for intermediate appellate appointments – is not rife with minorities, and especially not minorities who are Republicans, there is no shortage of women. When it comes to diversity, observers say, Mr. Pataki’s performance was unacceptable. In his 12 years in office, Mr. Pataki appointed 58 Supreme Court Justices to Appellate Division panels of the First, Second, Third and Fourth Departments. Two of those appointments were black: Barry A. Cozier and Sandra L. Townes (Judge Cozier is now in private practice and Judge Townes became a federal judge). Two were Hispanic men and seven were women, including Judge Townes. None were Asian (Justice Peter Tom, appointed to the First Department by Governor Mario Cuomo, remains the only Asian-American on any of the appeals courts). The remaining 48 – or 83 percent – were white men. See pages 10 and 11 of the print edition of today’s Law Journal for a complete listing, including brief biographies, of all 59 Appellate Division justices. Mr. Pataki is also faulted for choosing judges from outside New York City to sit in the First Department, where seven out of his 13 appointments were from outside the five boroughs. This lack of diversity elicits sharp criticism from some of the city’s top lawyers and institutions, usually without prompting. Corporation Counsel Michael A. Cardozo, for example, said Mr. Pataki’s appointments to the First and Second Departments were of “high quality,” but he offered strong, unsolicited words on the composition of those benches. “The Governor has done New York City a great disservice by failing to appoint virtually any women and minorities to the bench,” Mr. Cardozo said in a statement to the Law Journal. “This failure has been compounded by the large number of appointees from outside the city. Every effort should be made to have appellate courts reflect the diversity and geography of the population in which they sit – and the Governor’s appointments have failed seriously in this respect.” Barry Kamins, president of the New York City Bar Association, said Mr. Pataki’s record on diversity would, in the long run, overshadow the fact that he put qualified judges on the bench. “His legacy for the appellate courts in the state will be his lack of sensitivity to ethnic and gender diversity,” Mr. Kamins said. “The courts of a community should have an understanding of the people they serve, and a connection to their life experiences and their culture.” Michael Marr, a spokesman for Governor Pataki, said: “Governor Pataki is proud of his selections to the Appellate Division of the judiciary and has made his selections on the basis of their legal ability, judicial temperament and the positive long-term impact they will have on the judicial branch of our state government.” Final Word The importance of New York’s four intermediate appeals courts was well understood by the governor when he took office 12 years ago. In 1985, laws were passed to limit appeals as of right to the Court of Appeals, giving the state’s highest court more control of its docket. Since then, the Court has reduced its annual caseload by about 70 percent, deciding an average of about 200 cases a year, down from about 700 in the 1980s. As Mr. Pataki leaves office, the court of last resort for most civil and criminal litigants is the intermediate appellate court. Of the 58 appointments made by Mr. Pataki, 42 are among the 59 active justices throughout the four departments (71 percent), and attorneys agree that, in the main, these courts have grown more conservative under the governor’s watch. Of those 42 judges, 10 are Democrats. However, the differences are not as large as one might expect after a 12-year run with an average of more than four appellate appointments a year. In the First and Second Departments, the two appellate courts with the largest dockets, practitioners say that in many ways, not much has changed, despite the governor’s influence. For non-criminal cases, attorneys say, the two departments are now more alike than ever before. The First Department justices had a reputation of sustaining larger damage awards than their counterparts in Brooklyn. That remains the case, but the First seems to have flattened while the Second has caught up. “What I would say is that the First Department has become more reasonable in their assessment of damages in tort cases, likely because of more conservative judges,” said Kenneth Mauro of Mauro Goldberg & Lilling, an eight-attorney firm in Great Neck, Long Island, that handles appeals. “I think frankly that helps sustain the tort system in its present form.” As for criminal appeals, Lynn Fahey, the attorney-in-charge of Appellate Advocates, said she sees no difference in the Second Department’s handling of cases, even though 17 out of its 22 justices were appointed by Mr. Pataki. “I don’t think that Pataki has had a dramatic effect on the court,” Ms. Fahey said. “The Second Department sort of has its own outlook and its own way of doing things, and I think people get on that court and adjust.” The state of the First Department, in terms of criminal cases, is more complicated. The court has long been known as a favorable court for prosecutors handling criminal appeals. Robert Dean, the attorney-in-charge at the Center for Appellate Litigation, said that became especially true in the 1990s, with Mr. Pataki’s initial appointments and increased public pronouncements, as well as media coverage, about “junk justice” and criminal defendants who received relief from appeals courts. But in the last four years or so he said that the trend has eased, and even reversed. See Profiles of the First Department Justices. “As far as I’m concerned, you’re always in there and they are beating you up, and that hasn’t changed,” Mr. Dean said. But, he added, some of Mr. Pataki’s appointments – he cited Justices James M. McGuire, Mr. Pataki’s former counsel, and James M. Catterson – while known as conservative, could be favorable to defendants because they were willing to ask a lot of questions and think independently. “They will vote for the defendant, and not only that, they mix things up,” he said. A case that Mr. Dean lost in November perhaps helps to explain his optimism. In People v. Long, 2572/04, a 3-2 panel voted to affirm a conviction for possession of stolen credit cards. The defendant, Cynthia Long, and another defendant attempted to make a purchase at Circuit City, but Ms. Long did not have identification for her card. She and the co-defendant left the store; employees then called the police. The police later stopped Ms. Long’s car and found stolen credit cards and heroin. Ms. Long lost a suppression motion challenging the reasonableness of the stop, and the majority – Justices David Friedman, Eugene Nardelli and Luis Gonzalez – affirmed. In a dissent, Justice Catterson, joined by Justice Angela M. Mazzarelli, said Ms. Long had been arrested on a “hunch” of a store security guard. He said the reasonable suspicion standard had not been met. The addition of Justice McGuire has at times rankled other members of the court. In September, an odd scene played out at the First Department, when one Pataki appointee, Presiding Justice John T. Buckley, chose to finish his term, in effect blocking the governor from appointing Justice McGuire to the presiding justice post. One court insider accused Justice McGuire of being “all elbows”; others questioned his manner and said he was causing a slowdown of the court’s process. As one longtime court observer, who asked not to be identified, put it, “The court now seems unhappy with each other to an extent that it has never shown in public.” But from the perspective of attorneys, and especially those with the odds stacked against them, having active and animated justices is a relief. They say that Justices Catterson and McGuire have quickened the court’s metabolism. One criminal defense attorney in Manhattan, who agreed to speak on condition of anonymity, said Justice McGuire is active, independent and animated, and perhaps less willing to simply affirm criminal cases without much debate. “What McGuire does seem to bring to the table is an interest in getting to the gut of each case and trying to get it right, rather than superficially reading the memos of each case,” the attorney said. Force of Personality While Mr. Pataki’s most recent appointments have created some tension in the First Department and questions about who will lead the court, the Second Department, according to attorneys who practice there, is now more inviting than it has ever been. For this, attorneys say, Presiding Justice A. Gail Prudenti deserves the credit. Justice Prudenti, 53, was appointed to the bench in 2000 and became presiding justice in 2001. While most practitioners remember Guy Mangano, the long-standing presiding justice, as effective in his way, Justice Prudenti is equally so with a warmer personality. “She has brought a level of graciousness to that court that it didn’t necessarily have before,” Ms. Fahey said. “It is a much more pleasant place to argue than it once was. I was a big fan of Guy Mangano, but you could really get a hard time from the court 10 years ago. It is much more civil now. Administratively I think she is a genius.” See Profiles of the Second Department Justices. Justice Prudenti is just one judge, but attorneys say her cheerful personality and practical nature can rub off on her colleagues. The most often cited example by attorneys, who asked not to be identified, was that of Justice Nancy E. Smith, who has since moved from the Second Department to the Fourth Department. Justice Smith was not on the bench for long before attorneys began to fear arguing in front of her. At times, she would clash with her colleagues during arguments. Eventually, however, attorneys said she mellowed. While no one cited a direct intervention from Justice Prudenti, attorneys said they believe she can take the rough edges off a colleague and make the court work better as a group. “All of the other judges seem to like her a great deal,” said Mr. Mauro, who is the former chair of appellate courts committee for the New York County Lawyers’ Association. “She is very responsive, and very willing to listen.” Consistent, Prepared Mr. Pataki has appointed fully half of the Third Department bench. All five of his appointees are white Republican men: John A. Lahtinen, Carl J. Mugglin, Anthony J. Carpinello, Robert S. Rose and Anthony T. Kane. Long before Mr. Pataki, the Third Department’s rulings largely reflected the mores of the Republican who would win three terms as New York’s governor. Practitioners say the Third Department bench has always been conservative in criminal law and more likely to hold for defendants in civil cases. The Pataki appointees seemingly solidified, rather than altered, this personality. Virtually without exception, prosecutors and defense attorneys, civil attorneys of all stripes, and trial judges who rely on the Third Department for guidance praised the quality of the bench and the work it produces. They noted that the court almost always hands down routine decisions in four to six weeks – although the more complicated and controversial “marquee” cases can take several months – and decisions usually come in the form of signed, written opinions that both resolve the dispute and, when necessary, lay down consistent guidelines for the trial courts. “Yes, they are all Republicans, but in that situation I don’t think their enrollment really came into play,” said Michael Hutter, an Albany Law School professor and veteran appellate counsel at Powers & Santola. “They are just all excellent judges. It is a solid court, perhaps not ‘spectacular’ in the sense of a Cardozo-type court, but hard-working. There are no clunkers on that court, absolutely no clunkers. He appointed very solid judges.” Nicholas E. Tishler, an attorney in Niskayuna, N.Y., who has appeared before the Third Department regularly since the early 1980s, noted “a continued progression of the court being a hot bench.” Mr. Tishler said that when he first began practicing before the Third Department in the early 1980s, the judges were not always prepared and it was often obvious they had not read the briefs. But he said that over the years, and especially under Presiding Justice Anthony V. Cardona, a Democrat from Albany re-designated by Mr. Pataki, the judges are well-prepared and ready to engage attorneys. “It is a remarkably well-run, user-friendly court,” Mr. Tishler said. “One of the qualities of this court is it is a considered court,” he said. “They don’t make radical changes in the law. I think they properly view their role in applying the law as they find it to the facts. They leave it to the Court of Appeals to harmonize the appellate divisions.” Mr. Tishler said he took “careful note” of an opinion last year where the court exercised its interest of justice power to reduce the sentence of a child molester. The decision in People v. Nickel, 13386, caught some practitioners by surprise because the Third Department is reputed to be a tough-on-crime bench. They were all the more surprised to see Justice Karen K. Peters, a Democratic appointee of Mr. Cuomo and supposedly the most liberal judge on the court, write separately in favor of the harshest sentence. Justice Anthony J. Carpinello, a Republican appointee of Mr. Pataki who is ostensibly a staunch conservative, wrote a separate opinion calling for a more lenient sentence. James E. Long, a criminal defense attorney in Albany who had clerked in the Third Department in the 1970s and later for a trial judge, said the Pataki appointees have made an already conservative bench even more conservative. “I would never say it was liberal, but I have seen it turn more and more toward conservative,” Mr. Long said. He points to the case of People v. Rawle McIntosh, a search and seizure case involving a bus station drug interdiction. The Third Department upheld the conviction 5-0, and the Court of Appeals reversed it 7-0. Still, while Mr. Long is less than enamored with what he perceives as a tough-on-crime focus, he has nothing but praise for the justices and their opinions. “The quality of the appointments in the Third Department has been excellent,” Mr. Long said. “They really are top-notch. It is not at all as if Pataki put on political hacks.” John A. Cirando, a Syracuse attorney who has appeared at the Third Department approximately 100 times since the 1970s, said there has been little change in the ideological flow of the court over the years, and none attributable to the Pataki appointees. “As a general rule, you don’t see this court trying to make new law,” Mr. Cirando said. But Peter Moschetti, a former prosecutor who now does criminal defense and civil plaintiff work, finds the Pataki-influenced court more conservative in both civil and criminal matters. “They are very difficult in cases involving no-fault and serious injury threshold cases, extremely difficult for plaintiffs,” said Mr. Moschetti, of Latham, N.Y. “Still, I think the quality is excellent. It is always a very hot bench and they are always well informed.” Paul DerOhannesian, a former prosecutor who has followed and argued before the Third Department for decades, said the most prevalent characteristic of the court is consistency. Mr. DerOhannesian, of Albany, attributes this to the “strong and steady” influence of Presiding Justice Cardona and other senior judges – especially Justice Thomas E. Mercure – who clearly have leadership roles and whose terms spanned the Cuomo and Pataki years. Strong Leadership When Mr. Pataki became governor the Fourth Department consisted of eight judges appointed by Mr. Cuomo and three appointed by Governor Hugh L. Carey. As Eliot Spitzer takes the helm, the Fourth Department now has nine judges appointed by Mr. Pataki, while two remain from Mr. Cuomo. Demographically, the Fourth Department court Mr. Pataki leaves behind is slightly more diverse than the one he found upon entering office, with three women judges – Cuomo appointee Elizabeth W. Pine and Pataki appointees Nancy Smith and Erin M. Peradotto – and one black judge, Cuomo appointee Samuel L. Green. Terrence M. Connors, a partner at Buffalo’s Connors & Vilardo, estimates that he has appeared before the Fourth Department close to 100 times over the last 30 years. “It’s a department where they have great respect for the jury verdict,” Mr. Connors said. “The way they respect that verdict is that they give great deference to the effort of a jury to get it right, in both criminal and civil cases.” Perhaps the biggest stamp Mr. Pataki had on the court was his appointment of Eugene F. Pigott Jr., now on the Court of Appeals, as presiding justice. Mr. Connors said that Justice Pigott “was certainly viewed by the lawyers who practiced there as a lawyer’s judge, someone who is accessible, and cares about practicing lawyers.” He called Justice Pigott – who was confirmed as a Court of Appeals judge in September – an “affable, outgoing, presence in the legal community.” Fourth Department attorneys say they do not expect much of a change in the court’s temperament under the new presiding justice, Henry J. Scudder. After nearly eight years on the bench, the attorneys say, the 61-year-old former assistant Steuben County district attorney has developed a reputation as a bright, likeable judge with, in the words of one attorney, “the sensibilities of a country lawyer.” Mr. Connors, a Democrat, said that having eight Pataki appointees on the bench has resulted in no discernible changes from the Cuomo years. “In the Fourth Department, not only have we been graced by terrific presiding judges, but we’ve also had our share of excellent associate justices, many of whom would have no problem moving into a leadership of the department,” Mr. Connors said. He noted a number of consistencies between the current panel and the one on the bench on Jan. 1, 1995. The bench remains hot and the pace of decisions remains quick. John DeFranks, the first deputy district attorney of Erie County, said the court’s changes over the last 12 years are remarkable for being unremarkable. The court has remained “constant, coherent, and consistent,” according to Mr. DeFranks. Having appeared before the Fourth Department hundreds of times in criminal matters – sometimes as often as 40 or 50 times per year – Mr. DeFranks said that Mr. Pataki’s appointments did not change the court. “There is almost no change in the number of cases that we have reversed today as opposed to 15 years ago,” he said. “And there are very few.” Buffalo’s Francis M. Letro said that it may be too early to tell what kind of legacy Mr. Pataki leaves behind, considering that he appointed two justices, Eugene M. Fahey and Justice Peradotto, three days before Christmas. “His legacy is yet to be fully realized,” Mr. Letro said. “His imprint on that court will extend for a couple decades to come.” Sam Weisberg contributed to this article. - Tom Perrotta can be reached [email protected]; John Caher at [email protected]; and Mark Fass at [email protected].

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