Split Panel Highlights Stress of Appellate Vacancies

, New York Law Journal

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Justice Stein

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.

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