ALBANY – An upstate man sentenced to 150 days in jail for contempt will get another chance to avoid lock-up, thanks to an appellate judge who wasn’t even present when the case was argued.

In Matter of Madison County Support Collection Unit v. Feketa, 515715, Appellate Division, Third Department, Justice Leslie Stein (See Profile) broke the 2-2 tie and sent the case back for a new hearing. Stein was vouched in to decide the case when the shorthanded court reached an impasse.

Like all four appellate departments, the Third is shorthanded and waiting for Gov. Andrew Cuomo to fill the vacancies that have left the midlevel courts 20 percent short of their allotted judgeships (NYLJ, Oct. 1).

But the Third Department, which is already down four of its 12 judges and will lose another to retirement in two weeks, is by far the most stressed and is forced to operate with four judge panels.

That, of course, can lead to tie votes, which are resolved when another judge of the court is handed a pile of briefs and a recording of the oral arguments and asked by Presiding Justice Karen Peters (See Profile) to cast the deciding vote.

“I try to consider how many days a judge sat during the term and whether or not they have some particularly difficult cases assigned to them,” Peters said, explaining how she decides which of her colleagues will be vouched in. “Sometimes it just comes down to who is around and available.”

In Feketa, Stein got the nod.

Chief Judge Jonathan Lippman (See Profile) said in a recent Law Journal interview that the failure to fill appellate court vacancies, some of which date back more than two years, has caused “serious problems.” However, Lippman said he is optimistic Cuomo will address the issue soon.

“I believe the governor and the executive branch are very aware of it and doing their best to try to ensure those vacancies are filled quickly,” Lippman said. “To be sure, I’d be less than forthright if I did not say the Appellate Division is suffering and we need those vacancies filled. I am confident, after talking to the governor’s counsel, that this will happen in the near future, and it needs to, because we need the help.”

Cuomo’s office has not responded to recent inquiries on when the governor will appoint Appellate Division judges. Some observers have suggested the governor is looking to diversify the upstate appeals courts by appointing minorities from downstate departments.

There has never been a black or Hispanic judge on the Third Department bench; and there has never been a black or Hispanic Supreme Court justice in the 28-county region that the Third Department encompasses. Cuomo can choose only from the ranks of elected Supreme Court justices, but he can go outside the department and shift judges between districts.

Regardless, Cuomo hasn’t appointed an appellate judge in more than a year even though 13 of the 66 positions statewide are vacant. Several judges and practitioners have complained about the governor’s slow pace in appointing judges, and the New York State Bar Association this fall wrote to Cuomo urging him to take prompt action.

“To the best of my knowledge, we have not received a response from the governor,” said state bar spokeswoman Lise Bang-Jensen.

Meanwhile, the Third Department is bracing for the exodus of Justice Edward Spain (See Profile), who is retiring at the end of the year and is no longer hearing cases. Consequently, Peters is configuring four-judge panels out of a seven-judge court.

Peters said she was forced to cut three argument days out of the January term.

“We only have seven judges and I had to consider how many cases a judge can hear and decide and still give it the attention it deserves,” Peters said. “It is hard to create panels with seven judges.”

Peters said she also has to prioritize cases, moving the most pressing, such as child custody matters, to the front and relegating those that can wait, generally commercial litigation and torts, to the back burner. Peters said four-judge panels are far from ideal, from either a logistical or juridical perspective.

“To be perfectly candid, the reason we [normally] sit with five judges is we think five fine minds bring the best result,” Peters said. “When a case is orally argued, we all enjoy the opportunity to communicate with the attorneys and follow their argument and participate to the extent necessary. I think something is lost when a case is orally argued and one of the judges isn’t able to [participate]. But we really don’t have any alternative at this point.”

Lippman said that as a judge of the Court of Appeals he far prefers five judge opinions from the appeals courts.

He said that with a shorthanded bench there can be “a little too much agreement going on” in order to reach a compromise and decide the case.

“It does change the dynamic below and it can change what comes to us,” Lippman said. “When you have a five-judge panel below and you are getting three-to-twos, there is an energy that comes out of that. To me, the energy, the joy, of doing this is in having different viewpoints and saying what you mean and meaning what you say. The four judge panels are not helpful. It is much better to have five judge panels.”

Right to Counsel

Feketa, the appeal decided Thursday, arose from Madison County and centered on a child-support dispute.

Judge Dennis McDermott, sitting in Family Court, found John Feketa in contempt and held a hearing to determine the punishment.

Feketa, who was already incarcerated on another matter, participated by phone. McDermott proceeded with the hearing after Feketa repeatedly said he did not want an attorney, and the judge ultimately ordered a 150-day sentence for civil contempt. After the penalty was imposed, Feketa asked for counsel, but McDermott told him it was too late.

The issue on appeal was whether McDermott had conducted the type of “searching inquiry” necessary to determine whether Feketa understood the process and was cognizant of the danger of going forward without an attorney.

Two judges—Justice William McCarthy (See Profile) and Spain—said Feketa’s counsel rights were violated. Two others—Justices John Lahtinen (See Profile) and John Egan Jr. (See Profile)—said they were not. Stein joined McCarthy and Spain to make a majority and decided the case in favor of Feketa.

McCarthy, writing for the court, said McDermott should have inquired into Feketa’s education, experience with the legal system and other factors before allowing him to proceed pro so.

“A person who is facing a contempt allegation for willful nonpayment of support, and could potentially be incarcerated for violation of a prior order, has the right to assistance of counsel,” McCarthy wrote. “A waiver of the right to counsel ‘must be explicit and intentional, and the court must assure that it is made knowingly, intelligently and voluntarily’” (quoting the Third Department’s holding last December in Matter of Clark v. Clark, 101 AD3d 1394, 2012).

Lahtinen, in dissent, said McDermott repeatedly advised Feketa of his right to counsel and offered to adjourn the proceeding so the respondent could get a lawyer.

“Respondent, an adult who purportedly ran his own business, had considerable recent experience in both criminal and civil legal matters where he was entitled to counsel, and had repeatedly been informed of that right in this matter, and he waived it in front of a judge before whom he had appeared many times and who had told him several times of the potential consequences he faced for his admitted civil contempt,” Lahtinen wrote.

Feketa was represented by Lawrence Brown of Bridgeport. Brown said he has never before had a case decided by a vouched-in judge. But he said he was surprised there was a split requiring a tie-breaker.

“In my opinion, it should have been a 4-0 decision and not 2-2,” Brown said.

The appeal was argued Oct. 8.