- Associated Press - Monday, February 9, 2015

ALBANY, N.Y. (AP) - New York’s highest court filled its empty seats Monday after two longtime jurists nominated by Gov. Andrew Cuomo generally sailed through confirmation hearings and were confirmed by the state Senate.

Justices Leslie Stein and Eugene Fahey will start hearing cases Tuesday.

They are filling two vacancies on the seven-member Court of Appeals, where the lack of a majority prevented rulings in January in cases about bank liability for terrorism and the return of autopsied body parts to families. Those cases will be heard again.

Sen. John Bonacic, who chairs the Judiciary Committee, which questioned the nominees for about an hour Monday and then unanimously approved them, said he thinks Stein and Fahey are “qualified to go to the Court of Appeals.”

“I think it’s probably the most important appointment. More important than the governor. More important than elected officials,” Bonacic said. “Their decisions will affect the quality of life of thousands and thousands of New Yorkers for generation or generations to come.”

Bonacic, a Middletown Republican, said one case the new judges are likely to hear is whether the recent decision by the Democratic governor’s administration to keep banning hydraulic fracturing for natural gas is unconstitutional. Cuomo administration officials cited health concerns from pollution.

Both judges were attorneys in private practice and trial judges who moved on to midlevel Appellate Division courts. Stein, 58, is from Albany. Fahey, 63, is from Buffalo.

Each promised an open mind, fairness and adherence to the constitution, state statutes and legislative intent in their rulings. They also said they won’t be “activist judges” or politically beholden to Cuomo.

Terms are 14 years, but the judges must retire after turning 70. The annual salary is $192,500.

Sen. Ruth Hassell-Thompson, ranking Democrat on the committee, questioned Stein’s dissent in one Appellate Division case. The midlevel court’s majority and later the Court of Appeals ruled that a man convicted of drug sales as a repeat offender could get his 15-years-to-life sentence shortened under the 2009 revisions in the Rockefeller drug laws, which Hassell-Thompson helped amend.

Stein said that after authoring 750 decisions at the midlevel court, she couldn’t immediately recall all the details, but, as in other cases, she weighed the particular facts and interpreted the law.

“Obviously I stand corrected,” she said.

Questioned by Bonacic about many decisions that sided with state agencies, Stein said the judges learn at the midlevel Appellate Division that they are required to give deference to administrative decisions about the facts of a case. However, that deference doesn’t apply to legal arguments, she said, noting there were cases in which she ruled against the state.

Hassell-Thompson asked Fahey what he would do to restore trust in the criminal justice system and grand jury process after the case involving Eric Garner, an unarmed Staten Island man who died after a videotaped confrontation with police last summer, leading to large protests when no officers were indicted.

Fahey said he couldn’t comment directly since the case was likely to end up before the Court of Appeals, but he noted Chief Judge Jonathan Lippman is expected to soon make recommendations for changes.

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