Public Hearing: Nomination of Janet Difiore for Chief Judge of the Court of Appeals

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON THE JUDICIARY 2 ------------------------------------------------------ 3 PUBLIC HEARING: 4 NOMINATION OF JANET DIFIORE 5 FOR CHIEF JUDGE OF THE COURT OF APPEALS 6 ------------------------------------------------------ 7 New York State Capitol Building

172 State Street - Room 124 CAP 8 Albany, New York 12247 9 January 20, 2016

1:00 p.m. to 1:30 p.m. 10 11

PRESIDING:12

Senator John J. Bonacic 13 Chairman 14 15 COMMITTEE MEMBERS PRESENT: 16 Senator George A. Amedore, Jr. 17 Senator Philip M. Boyle 18 Senator Neil D. Breslin 19 Senator Leroy Comrie 20 Senator Thomas D. Croci 21 Senator John A. DeFrancisco 22 Senator Ruben Diaz 23 Senator Adriano Espaillat 24 Senator Kemp Hannon 25 1

COMMITTEE MEMBERS PRESENT (Continued): 2

Senator Ruth Hassell-Thompson (RM) 3

Senator Brad M. Hoylman 4

Senator Andrew J. Lanza 5

Senator Kenneth P. LaValle 6

Senator Michael F. Nozzolio 7

Senator Thomas F. O'Mara 8

Senator Diane J. Savino 9

Senator Susan J. Serino 10

Senator Michael Venditto 11 12 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 1

SPEAKERS:PAGE QUESTIONS 2

David P. Miranda 6 12 3 President

New York State Bar Association 4

Evan M. Goldberg 14 19 5 President

NYS Trial Lawyers Association 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 SENATOR BONACIC: I'm calling the Judiciary 2 Committee meeting to order. 3 My name is Senator Bonacic. I chair the 4 Senate Judiciary. 5 It is now five minutes after one. I'd like 6 to get started. 7 Following a public-hearing notice issued on 8 January 8, 2016, pursuant to Section 104 of the 9 Public Officers Law, we are here today for a public 10 hearing for Governor Cuomo's Court of Appeals 11 nominee, Janet DiFiore. 12 The purpose of the hearing is to fill the 13 vacancy for the chief judge of the Court of Appeals. 14 And before I continue, I see her two sons are 15 here, Michael, Joseph; and her husband, 16 Dennis Glazer. 17 Welcome. 18 At this time, this hearing is the fifth 19 vacancy on the Court of Appeals that the Judiciary's 20 Committee has considered since 2013. 21 And I think in the not too distant future, 22 Susan Read will be leaving the bench, and we will 23 have to convene again for a sixth Court of Appeals 24 judge. 25 But getting back to the chief judge, that's 1 the utmost importance, since that chief judge serves 2 as the leader of the entire judiciary system in the 3 state of New York. 4 As you all know, Judge Jonathan Lippman 5 served as the chief judge of the Court of Appeals 6 for the past nine years. 7 His commitment to the bench is undeniable. 8 His experience in the court system and his judicial 9 temperament were an asset to our state's highest 10 court. 11 We thank Judge Lippman for his years on his 12 service to bench. 13 We're going to have two witnesses provide 14 oral testimony, but before I do that, I would like 15 to acknowledge the Senators that are here, present, 16 for the Judiciary Committee: 17 Senator Nozzolio, Senator Boyle, 18 Senator Amedore, Senator Serino, Senator O'Mara, 19 Senator Croci, Senator Venditti (sic), Senator Diaz, 20 Senator Leroy Comrie, Senator Breslin, 21 Senator Savino, Senator Hoylman, and 22 Senator DeFrancisco. 23 All right. 24 SENATOR DIAZ: And the boss. 25 SENATOR BONACIC: Now, different Senators 1 will be coming in periodically. 2 I see our -- our good leader there, 3 Senator John Flanagan. 4 Welcome. 5 SENATOR FLANAGAN: Thank you. 6 SENATOR BONACIC: Have a seat, you're welcome 7 to stay. 8 [Laughter.] 9 SENATOR BONACIC: And as Senators come in on 10 the Judiciary Committee, we will introduce them. 11 At this time, the first witness appearing 12 will be David Miranda, president of the New York 13 State Bar Association. 14 David, have a seat right there. 15 Welcome. 16 DAVID P. MIRANDA: Thank you, 17 Senator Bonacic. 18 Honorable Members of the Senate Judiciary 19 Committee, ladies and gentlemen, my name is 20 David Miranda. I'm president of the New York State 21 Bar Association. 22 And it is my privilege to appear before you 23 today in support of the appointment of Janet DiFiore 24 as chief judge of the state of New York. 25 On behalf of our New York State Bar 1 Association, I thank you for the opportunity to 2 testify concerning Ms. DiFiore's qualifications 3 for the Court of Appeals. 4 The New York State Bar Association is 5 comprised of over 74,000 attorneys, including 6 attorneys in every part of New York State, from 7 every other state in our union, and from over 8 100 countries around the world. 9 We are a voice for over a quarter-million 10 attorneys licensed to practice in New York State. 11 Since 1967, our association has evaluated 12 candidates for the Court of Appeals. 13 Since New York amended its Constitution in 14 1973, to provide for the appointment of Court of 15 Appeals judges, we have provided the governor with 16 our ratings of the candidates whose names have been 17 submitted to the governor by the State Commission on 18 Judicial Nomination. 19 Following the governor's selection of one of 20 the candidates for appointment, we have also 21 communicated our rating of that nominee to this 22 Committee to assist in the confirmation process. 23 With respect to this nomination, we have 24 found Ms. DiFiore to be qualified to serve as 25 chief judge of the state of New York, and I strongly 1 urge you to confirm her nomination. 2 New York's Court of Appeals is one of the 3 most well-respected and influential state courts in 4 our nation. 5 Our evaluation of candidates to sit on that 6 important court is one of the most important 7 functions our bar association provides. 8 I would like to have the opportunity to 9 outline for you the process by which our association 10 evaluates Court of Appeals candidates. 11 Our committee to review judicial nominations 12 is appointed by the association's president, and 13 made up of 17 members and 4 alternate members from 14 across New York State. Every judicial district is 15 represented on the committee. 16 Consistent with the overall policies of our 17 association, the committee appointments reflect the 18 diversity of our membership, and society as a whole: 19 a diversity of race, gender, geography, and thought. 20 Members are also selected so that a wide 21 variety of practice areas are represented, with a 22 special emphasis on appellate practice. 23 Upon the announcement of the Commission on 24 Judicial Nomination of its list of candidates for 25 appointment to the Court of Appeal, our committee 1 chair appoints subcommittees to investigate the 2 qualifications of each candidate. 3 These subcommittees review biographical 4 material provided by the candidates and read samples 5 of the candidates' writing, interview persons 6 familiar with the candidates' work, background, and 7 character. 8 In the case of judges who have been 9 nominated, the subcommittees include in their 10 interviews lawyers who have appeared before the 11 judge. 12 Finally, the subcommittees meet with the 13 candidates, and based on the information gathered 14 during the investigation process, the subcommittees 15 prepare reports and recommendations concerning the 16 candidates, to present to the full committee. 17 After completion of the investigations, the 18 committee meets as a whole to review the 19 subcommittee reports concerning the qualifications 20 of each candidate, and to personally interview the 21 candidates. 22 The committee then votes to determine the 23 candidate's rating. 24 In making their evaluations, the committee 25 members are asked to consider the candidate's 1 professional ability and experience, character, 2 temperament, and the possession of the special 3 qualities necessary or desirable for the judicial 4 office sought. 5 Under the committee's guidelines, a qualified 6 candidate is one who affirmatively demonstrates 7 qualifications the committee regards as necessary 8 for judicial office. 9 After being selected as a candidate by the 10 Commission on Judicial Nomination, Ms. DiFiore's 11 qualifications were evaluated by our committee in 12 accordance with these procedures. 13 She met with our full committee on 14 November 9, 2015. 15 As a result of this investigation, and 16 interview, it was the opinion of our committee that 17 Ms. DiFiore is qualified for the position of chief 18 judge. 19 Ms. DiFiore has a long and distinguished 20 career as a public servant. 21 She has been the district attorney of 22 Westchester County from 2006 to the present, and in 23 this position she has been instrumental in 24 problem-solving, and has created a number of 25 initiatives, including the child-fatality review 1 team, the Westchester Intelligence Center, the 2 violent-felony screening protocol, the 3 Westchester County Re-Entry Task Force, and the 4 Multi-Disciplinary Team for Elder Abuse. 5 Prior to becoming district attorney, 6 Ms. DiFiore served as a Supreme Court justice in 7 the Ninth Judicial District, where she was 8 supervising judge of the criminal courts for over 9 two years. 10 She has served on countless commissions 11 regarding the administration of justice, including 12 former-Chief Judge Kaye's commission on the future 13 of indigent legal services, and as co-chair of 14 former-Chief Judge Lippman's task force on wrongful 15 convictions. 16 Based upon her experience, we conclude that 17 Ms. DiFiore is an excellent choice for chief judge. 18 Accordingly, on behalf of the New York State 19 Bar Association, I am pleased to endorse 20 Ms. DiFiore's appointment as chief judge, and urge 21 the confirmation of her appointment. 22 I thank you for your attention, and for 23 inviting participation by the New York State Bar 24 Association on this important process. 25 SENATOR BONACIC: Thank you, Mr. Miranda. 1 We're joined by 2 Senator Ruth Hassell-Thompson, the Ranking Member of 3 the Senate Judiciary; Senator LaValle, 4 Senator Espaillat. 5 I had one question for you. 6 Oh, he's hiding over there. 7 Senator Hannon at the end of the table. 8 I have a question for you. 9 I noticed that a lot of the organizations 10 ranked this nominee as "highly qualified." 11 But the State Bar Association ranked her as 12 "qualified." 13 Do you care to comment? 14 DAVID P. MIRANDA: The standard for 15 "qualified" showed that she had the qualifications 16 necessary to be chief judge. 17 I do not know how the other bar associations 18 look at candidates, but our association found her 19 qualified, and I fully support and urge her 20 appointment. 21 SENATOR BONACIC: Okay. I have no other 22 questions of Mr. Miranda. 23 Senator DeFrancisco. 24 SENATOR DeFRANCISCO: Do you have such a 25 designation at the bar association, "highly 1 qualified"? 2 DAVID P. MIRANDA: We do not have that 3 qualification. 4 SENATOR BONACIC: Thank you. 5 Does anyone else have any questions? 6 Senator Diaz. 7 SENATOR DIAZ: What's -- is -- the bar 8 association says that she's "qualified." 9 I take it any which way: Qualified. 10 Qualified. 11 So I don't know what to the question to the 12 (unintelligible) between "highly" and "qualified." 13 SENATOR BONACIC: I respect your question. 14 It's just that this is the chief judge of the 15 Court of Appeals. 16 This is the top judiciary person in the state 17 of New York, that will have influence and control of 18 the entire judicial system. 19 That's why I asked the difference, why she 20 wasn't ranked "highly qualified." 21 Are you prepared to tell us the difference 22 between the rankings, between "highly qualified" and 23 "qualified," so Senator Diaz would know the 24 difference? 25 DAVID P. MIRANDA: We don't -- we don't have 1 a rank -- a rating that's called "highly qualified." 2 SENATOR BONACIC: Okay. 3 SENATOR DIAZ: Thank you. 4 SENATOR BONACIC: Anybody else have any 5 questions? 6 Okay. 7 Mr. Miranda, thank you very much. 8 DAVID P. MIRANDA: Thank you. 9 SENATOR BONACIC: And our next speaker -- 10 let's see -- will be Evan Goldberg, of the 11 New York State Trial Lawyers Association. 12 EVAN M. GOLDBERG: Good afternoon, all. 13 SENATOR BONACIC: Good afternoon. 14 EVAN M. GOLDBERG: My name is Evan Goldberg. 15 I'm the president of the New York State Trial 16 Lawyers Association, and I appear here today on 17 behalf of the NYSTLA Board of Directors and our 18 3500 attorney members who practice in trial and 19 appellate courts throughout the state of New York. 20 Thank you, Chairman Bonacic, for inviting 21 NYSTLA to participate today, and for this 22 opportunity to speak in support of Governor Cuomo's 23 nomination of the Honorable Janet DiFiore for chief 24 judge of the New York State Court of Appeals. 25 For 60 years, NYSTLA has fought to protect 1 equal access to the civil justice system for all 2 New Yorkers. 3 The constitutional right to a trial by jury 4 is the foundation of that equal access, and NYSTLA 5 vigorously opposes any compromise of this critical 6 rights, whether by legislation, or through the 7 misapplication of judicial doctrines and procedures, 8 that can deny a worthy litigant their day in court. 9 The appointment of a new chief judge to the 10 Court of Appeals is, therefore, of great 11 significance to NYSTLA. 12 The legal rights of hundreds of thousands of 13 ordinary New Yorkers that NYSTLA members represents 14 depend upon judicial restraints, and careful 15 application of the law, by each member of the 16 courts. 17 The chief judge is not just the presiding 18 jurist over New York's highest court, but is 19 responsible for New York's entire court system. 20 NYSTLA applauds judges who demonstrate a 21 preference for allowing cases to be presented to a 22 jury, and who apply great caution in the use of 23 summary judgment, and doctrines, such as collateral 24 estoppel, that can sometimes prevent jury decisions 25 from being made on the merits. 1 For the position of chief judge, NYSTLA 2 recognizes that a strong administrative background 3 and a record of results is also needed. 4 NYSTLA's Judiciary Committee had the honor of 5 interviewing all the candidates recommended by the 6 New York State Commission on Judicial Nomination to 7 fill the vacancy created by the retirement of 8 Chief Judge Jonathan Lippman. 9 Among such an impressively-credentialed panel 10 of candidates, the Honorable Janet DiFiore stood out 11 for her judicial experience, her commitment to 12 justice, and her pragmatic approach to running the 13 judicial system. 14 The committee rated her as "highly qualified" 15 and "highly recommended," our highest rating. 16 The Honorable Janet DiFiore is rightfully 17 respected for her years of experience as a judge, 18 prosecutor, and public servant. 19 Her CV is too full of noteworthy acts and 20 accomplishments to go through in my testimony, but 21 I would like to focus on a few important aspects. 22 The executive experience that the 23 Honorable Janet DiFiore has demonstrated over the 24 course of her career is obvious. 25 As an assistant district attorney, she served 1 as chief of the narcotics bureau, overseeing all 2 narcotics prosecutions in Westchester County, and 3 she demonstrated her commitment to diversity, 4 serving as the office's equal employment opportunity 5 counselor. 6 As a district attorney for 7 Westchester County, she spearheaded many task forces 8 and initiatives to combat crime, and to expand 9 access to justice throughout the community. 10 As a supervising judge for the criminal 11 courts of the Ninth Judicial District, she 12 eliminated substantial backlog in the courts through 13 her innovative approach, while maintaining 14 legitimacy in the system and respect for litigants. 15 As a constituent of hers in 16 Westchester County, and a fellow member of the 17 Westchester legal community, I know, firsthand, that 18 Ms. DiFiore is a committed, ethical, and intelligent 19 attorney. 20 She and I have discussed the similarities 21 between civil litigants and those involved in the 22 criminal justice system. Fundamental fairness and 23 respect of law are the common denominators, and in 24 that regard, the math adds up. 25 Aside from being a supervisory judge, 1 Judge DiFiore's role as a judge of the 2 Westchester County Court, and later as a justice of 3 the Supreme Court, have equipped her with the 4 experience needed for appellate work, having handled 5 hundreds of criminal and civil cases. 6 Her legal knowledge in these cases is clear, 7 as is her reputation for fair and evenhanded 8 interpretation of the law. 9 She's also demonstrated her commitment to the 10 law outside the courtroom, serving on multiple 11 judicial commissions, working towards important 12 reforms, and ensuring the proper operation of the 13 courts. 14 She demonstrated leadership and creativity in 15 helping to establish special procedures to combat 16 juvenile delinquency and drug addiction. 17 Janet DiFiore's commitment to public service 18 has always extended beyond the boundaries of her 19 community, and her occupation. 20 She's served New Yorkers statewide, as the 21 first chair of JCOPE, as president of the 22 District Attorney Association of the State of 23 New York, and as co-chair of the New York State 24 Justice Task Force. 25 As chief judge, she will continue to approach 1 the challenges of New York's court system in the 2 same innovative and dedicated fashion. 3 In conclusion, Governor Cuomo has made an 4 excellent choice in his nomination for chief judge. 5 We welcome the Honorable Janet DiFiore's 6 commitment to justice and ethics, and look forward 7 to her pragmatic and results-driven administration 8 of New York's courts. 9 And thank you once again, Senator Bonacic, 10 for the opportunity to testify today. 11 SENATOR BONACIC: Thank you, Mr. Goldberg. 12 I think, when I read your report, your 13 organization rated Ms. DiFiore "highly qualified." 14 Am I correct? 15 EVAN M. GOLDBERG: We rated her "highly 16 qualified" and "highly recommended." 17 DAVID P. MIRANDA: Okay. 18 SENATOR BONACIC: I have no questions of 19 Mr. Goldberg. 20 Does any member of the Committee have any 21 questions of Mr. Goldberg? 22 Okay. 23 You're done. 24 Thank you. 25 EVAN M. GOLDBERG: Thank you, Chairman. 1 SENATOR BONACIC: I'm now going to ask 2 Senator Ruth Hassell-Thompson if she would like to 3 make any preliminary remarks. 4 SENATOR HASSELL-THOMPSON: Thank you, 5 Mr. Chairman. 6 He rejected my opportunity to speak for 20 or 7 30 minutes, so -- 8 [Laughter.] 9 SENATOR HASSELL-THOMPSON: -- I would just 10 take a few moments to say, Happy New Year, to all of 11 you, and to welcome those of you who have never been 12 in these chambers before, to this procedure. 13 And, it gives me great pleasure to be here, 14 in the position to help to determine the next 15 Court of Appeals top judge for the state of 16 New York. 17 This is my second opportunity, and the first 18 opportunity to appoint a woman. 19 Everyone who knows me knows well that I lean 20 toward the feminine side of me as often as I can, 21 without being accused of social engineering. 22 But, certainly, it is extremely important 23 that we recognize the role that a chief justice 24 would play in this state, setting the tone for what 25 will happen, as we come off of the weekend of 1 Dr. King who talks about the arc of justice. 2 It is so critically important that, in this 3 appointment, we choose someone who will lead the 4 courts in that direction. 5 Justice has to be the hallmark of what we do 6 here in the state of New York. 7 And, I am very proud to have served, for the 8 last 12 of my 16 years in the Senate, on the 9 Judiciary Committee, and have seen a lot of judges 10 come and go in that process. 11 But I commend the Governor, again, on his 12 choice of a fine, upstanding person. 13 I don't say that just because she went to 14 high school with my sister and lived in city of 15 Mount Vernon. 16 I say that because she and I have tussled in 17 the county of Westchester, and we've not always 18 agreed, but we have never been disagreeable in that 19 process. And, we're two very strong women who 20 debate our issues, and -- but we have always come to 21 the conclusion of justice. 22 So I am very pleased to be a part of this 23 august body today, as we make the selection for who 24 will lead the courts for the state of New York. 25 Thank you, Mr. Chairman. 1 SENATOR BONACIC: Thank you, Senator. 2 I have circulated the resume of Mrs. DiFiore 3 to the Judiciary Committee, on January 13th, to 4 provide an overview of the nominee. 5 Based on my own review of the candidate prior 6 to the hearing, I think Governor Cuomo has nominated 7 an impressive judicial nominee, with extensive 8 experience in criminal justice. 9 You've heard two of the witnesses talk about 10 that background, real quick: 11 Ten years as an assistant DA, 12 Westchester County; 13 Westchester County judge, four years; 14 Supreme Court judge, three years; 15 As a supervising judge of the criminal courts 16 for the Ninth Judicial District; 17 And serving, from 2006, the DA of 18 Westchester County, till the present time; 19 She has served on gubernatorial commissions, 20 as chair of the joint commission on public ethics, 21 and the commission on juvenile justice. 22 I'm also going to put in the record, 23 writings, concerning this nominee. 24 And then we'll take a five-minute recess, and 25 then we'll ask the nominee to come forward, tell us 1 about herself, and then we can ask her some 2 questions. 3 But let me put into the record extensive 4 writings that we have received. 5 Written submission from Jeffrey Deskovic. 6 He's a criminal-justice reform advocate, and 7 director of the Jeffrey Deskovic Foundation for 8 Justice. 9 This gentleman had served 17 years -- not 10 served -- he was in jail for 17 years, and he was 11 exonerated, as of the efforts of Janet DiFiore, 12 through DNA evidence, where he was then never 13 guilty -- should never have been found guilty of the 14 original crime. And he was exonerated as a result 15 of the efforts of this nominee. 16 Written submission by Samuel Abdobe (ph.), an 17 attorney, on behalf of Jeffrey Deskovic; 12 pages. 18 The District Attorneys Association of the 19 State of New York; two pages, very positive 20 concerning this nominee. 21 Submission from Carole Nowe (ph.), of the 22 Judicial Corruption Enforcement Task Force; seven 23 pages, negative, generally, of the court system. 24 Written submissions from Tiana Noroni (ph.); 25 11 pages, just negative about the judicial arena. 1 Submissions from the Center for Judicial 2 Accountability; 38 pages, negative about judges' pay 3 raises. 4 And, submission from James Brady (ph.); 5 10 pages, negative of the Court of Appeals, in 6 general. 7 So, they are all of the writings; they have 8 been furnished to each member of the Committee. 9 And when we have the nominee here, you're 10 welcome to get into any area you deem suitable. 11 At this time, we will conclude the public 12 hearing. 13 We'll take a brief recess, which I've said, 14 for five minutes, and then we'll convene a meeting 15 of the Judicial Committee, and hear personally from 16 the nominee. 17 Thank you very. 18 We're adjourned. 19 20 (Whereupon, at approximately 1:29 p.m., 21 the public hearing held before the New York State 22 Senate Standing Committee on the Judiciary 23 concluded, and adjourned.) 24 ---oOo--- 25