ALBANY – Governor Andrew Cuomo yesterday appointed Randall Eng (See Profile), a native of China, former prosecutor and longtime judge with a wealth of trial, appellate and administrative experience, to lead the Appellate Division, Second Department.
Eng’s promotion from an associate justice to presiding justice of one of the busiest appellate courts in the nation was announced along with six appellate panel appointments statewide. All four departments of the Appellate Division have been shorthanded for at least several months, and even with the batch of appointments announced Oct. 1, the Second, Third and Fourth departments are still short one judge. Another vacancy on the Second Department will be created later this month when Justice Ariel Belen (See Profile) leaves for a private sector position.
Clockwise from above: Justices Gische, Clark, Feinman, Hinds-Radix and Whalen.
Gische/Feinman/Hinds-Radix: NYLJ/Rick Kopstein; Clark/Whalen: nycourts.gov
Today, the governor announced appointments in three of the four departments:
• Second Department: Justice Sylvia Hinds-Radix (See Profile).
“I am proud to appoint such an accomplished and diverse group of jurists to the Appellate Division,” Cuomo said in a statement. “The experience and dedication of this group will be a tremendous addition to the courts and our justice system.”
Henry Scudder (See Profile), presiding justice of the Fourth Department, said he is grateful to get some help since his court has been short three of its 12 judges, 25 percent, for several months. He also said he is pleased with the designations of Valentino, who is from the Rochester area, and Whalen, who is from Buffalo.
“They are good people, hard workers and I think they will be excellent members of the court,” Scudder said.
Legal observers have been eagerly awaiting Cuomo’s appellate appointments, partially to glean insight into how this governor will approach judicial selections. Until yesterday, Cuomo, who has served nearly two years in office, had not named a single Appellate Division justice, leaving positions vacant in every department.
The Second Department, in addition to operating three judges short of its allotment of 22 judges, has been under the leadership of an acting presiding justice for nearly a year. Justice William Mastro (See Profile) has served in that capacity since A. Gail Prudenti (See Profile) left to become chief administrative judge in December.
Sources close to the process said Eng and Mastro were among at least 10 candidates who were deemed highly qualified by a screening panel and were presented to the governor for consideration. The others were: Second Department justices Sheri Roman (See Profile), Reinaldo Rivera (See Profile), Leonard Austin (See Profile), Cheryl Chambers (See Profile), Robert Miller (See Profile) and Peter Skelos (See Profile); and First Department justices Angela Mazzarelli (See Profile) and David Friedman (See Profile). But Cuomo went with Eng, a 64-year-old judge with a broad range of experience as both a judge and an administrator.
As presiding justice, Eng enters the judicial hierarchy and automatically becomes a member of the administrative board of the courts, a powerful group of five judges who set policy for the courts. It includes the four presiding justices and Chief Judge Jonathan Lippman (See Profile).
Lippman said Eng is a “smart, focused and pragmatic” judge who “cares passionately” about equal justice.
“The new presiding justice is an outstanding jurist and a terrific human being who will bring leadership and strength and a great breadth of experience as a judge and administrator,” Lippman said. “He is widely respected in Queens and the Second Department for his scholarship, particularly on the criminal side.”
Queens District Attorney Richard Brown said in a statement that Eng is “an experienced jurist whose strong administrative skills will serve the justice system well. He is fair and thoughtful and has the respect of all who appear before him.”
Eng, who was born in Canton, China, is the first appointed Asian to serve as a presiding justice in New York State. He earned a political science degree from the University at Buffalo in 1969 and a law degree from St. John’s University School of Law in 1972.
Additionally, he served in the New York Army National Guard and as a colonel in the Judge Advocate General’s Corps.
Eng was an adjunct professor at St. John’s, assistant district attorney in Queens, inspector general in the New York City Department of Correction, New York City Criminal Court judge, Supreme Court justice, and administrative judge for Queens County. He has served as an associate justice of the Second Department since 2008 when he was appointed by Governor Eliot Spitzer.
“It is an exceptional bench of distinguished jurists,” Eng said, referring to the Second Department. “I am impressed by the scholarship I have seen and the extraordinary work ethic. This is a very collegial bench. We are very respectful of each other.”
Eng, the first Asian judge in state history when appointed to the New York City criminal court in 1983, said the court has been struggling with a large caseload and a short-handed bench. He said that with the court closer to full staff he hopes to decrease the time between argument and decision.
“I hope to bring a greater efficiency to the operations of the court in harnessing the exceptional resources we have and applying them to the very substantial number of cases we receive,” Eng said.
He added that he is hopeful of bringing more consistency to the court’s approach to dealing with, for example, summary judgment motions or questions on what constitutes a prima facie case.
“The decisions may not always reflect what really distinguishes them, giving the appearance of inconsistency,” Eng said. “That seems to be an issue that has been raised by members of the bar.”
Eng, whose appointment to the $172,800 position takes effect immediately, was recently among two dozen appellate court judges who volunteered to work in the trial courts over the summer to help clear backlogs (NYLJ, Sept. 25).
Diversity on the Bench
It is unclear what yesterday’s appointments reveal about Cuomo’s approach to judicial selection, except perhaps a focus on diversity.
Eng is Asian, Clark is black, Hinds-Radix is black and a native of Barbados. Feinman is openly gay. Cuomo’s picks include a mix of men and women, prosecutors and defense attorneys, law clerks and judges with extensive experience in private practice. The one thing the seven judges have in common is they are all Democrats, like the governor.
“The appointments reflect a strong focus on the importance of diversity to our tripartite system of government,” Lippman said. “The governor has clearly considered a multitude of factors in making these terrific appointments, including diversity, which is so central to our branch of government and ability to do justice.”
Gische has been an elected Supreme Court justice for only three years, but was previously an acting justice as well as chief administrative judge in the housing part of the New York City Civil Court. She is a former clerk at the Third Department and senior attorney with Richenthal Abrams & Moss. She earned her law degree from the University at Buffalo in 1980.
Clark was elected to Supreme Court in the Bronx in 2006 after serving as a New York City Criminal Court judge. She was previously an assistant district attorney in the Bronx, where she was deputy chief of the criminal bureau and supervisor of the narcotics bureau. Clark is president elect of the New York State Chapter of the National Association of Women Judges. She received a law degree from Howard University in 1986.
Feinman began his career handling criminal appeals as a Legal Aid attorney and then clerked for Mazzarelli at both the trial level and the First Department. He was elected to the city’s Civil Court in 1996, reelected in 2006 and then elected to Supreme Court in 2007. Feinman, a 1985 graduate of the University of Minnesota Law School, is immediate past president of the International Association of LGBT Judges and is the presiding member of the New York State Bar Association’s judicial section.
Hinds-Radix was elected to her Supreme Court position from Brooklyn in 2004 and named administrative judge for civil matters in 2009. She was elected a Civil Court judge in the Second Judicial District in 2001 and was previously chief counsel of the immigrant program with District 37, a large public employee union. Hinds-Radix graduated from Howard University’s School of Law in 1984.
Valentino, a 1971 graduate of St. John’s University School of Law, is currently supervising judge for the criminal term courts in the Seventh Judicial District. He was elected to Supreme Court in Monroe County in 2001 after previously serving as an acting county judge, an acting family court judge, a Rochester City Court judge and presiding judge of the Rochester Drug Treatment Court.
Whalen has been on the bench since 2005 as a Supreme Court justice. He previously practiced both criminal law and was once an equity partner at Offerman, Mahoney, Cassano, Pigott, Greco & Whalen, the Buffalo firm where current Court of Appeals Judge Eugene Pigott (See Profile) was a name partner. Whalen was awarded his law degree in 1983 from the University at Buffalo School of Law.
The six associate justices will be paid $168,600.
Norman Greene, a partner at Schoeman Updike & Kaufman who has written extensively about judicial selection, said the governor’s first group of appointments evinces an interest in diversity that was sometimes lacking in prior years.
“The governor has shown a commitment to diversity,” Greene said, adding that there should be a wider range of judges from whom to select.
Greene noted that governors can elevate only elected Supreme Court justices to the appellate division. He favors a constitutional amendment that would broaden the pool to include judges on other benches and non-judges. Additionally, he advocates appointment through a judicial nominating commission like that used for the Court of Appeals.
While Cuomo was required to select the appellate division justices from the ranks of elected Supreme Court justices, governors can fill spots in one department with judges from another. Governor George Pataki, for instance, had placed several upstate Republicans on downstate appellate panels and there was speculation that Cuomo would reach outside the upstate departments to increase diversity, especially in Albany.
That has not happened, at least not yet.
All of the judges appointed yesterday serve within the department to which they were appointed. But there remains an opening on the Third Department, where there has never been a black or Hispanic judge and there are no black or Hispanic judges in the 28-county district to choose from.
Sources have confirmed that three Supreme Court justices in the Third Department—Michael Lynch (See Profile), Eugene Devine (See Profile) and Thomas Breslin (See Profile), all of whom are white Democrats in Albany—have been approved by the screening panel for the sole open seat on that court.
Part of the legal community’s interest in the appellate division appointments stems from the fact that if Cuomo serves a second term, he will have an opportunity to appoint the entire Court of Appeals, something only his father, former governor Mario Cuomo, has done.
The younger Cuomo will have his first opportunity to appoint a Court of Appeals judge when the senior associate judge, Carmen Beauchamp Ciparick (See Profile), faces mandatory retirement at the end of this year. The Commission on Judicial Nomination has received scores of applications and interviews are slated for early next month in Manhattan, according to sources close to the process.
Also in Cuomo’s first term, Judge Victoria Graffeo’s 14-year-term will expire in November 2014. Since Graffeo (See Profile) will not have reached the mandatory retirement age of 70 by that time, she is eligible to seek reappointment.
But over the following four years, the other five judges all will age-out: Judges Robert Smith (See Profile) and Theodore T. Jones (See Profile) will be replaced in early 2015; Chief Judge Jonathan Lippman must leave at the end of 2015; and Judges Pigott and Susan Read (See Profile) will have to retire at the end of 2016 and 2017, respectively.
@|John Caher can be reached at firstname.lastname@example.org