JUDGE STEIN: NEITHER LEFT NOR RIGHT.

• Author: Rehfuss, Charlotte
• Position: New York Court of Appeals Judge Leslie E. Stein

INTRODUCTION

Judge Leslie E. Stein, a 1981 Albany Law School graduate, Magna Cum Laude, was nominated by Governor Andrew M. Cuomo to serve as an Associate Judge of the Court of Appeals in October 2014, and her nomination was confirmed by the New York State Senate on February 9, 2015. (1) Judge Stein, a Democrat, replaced Judge Victoria Graffeo, a 1977 Albany Law School graduate. (2)

JUDGE STEIN'S PATH TO THE NEW YORK STATE COURT OF APPEALS

"Judge Stein began her legal career as the law clerk to the Schenectady County Family Court Judges." (3) She continued to practice matrimonial and family law with the Albany law firm McNamee, Lochner, Titus & Williams, P.C., where she ultimately became a partner in the firm. (4)

In 1997, Judge Stein began her judicial career when she was elected an Albany City Court Judge and Acting Albany County Family Court Judge, where she remained until 2001. (5) Thereafter, "[s]he was then elected to the New York State Supreme Court, Third Judicial District for a term commencing January 2002." (6) Judge Stein also "served as the Administrative Judge of the Rensselaer County Integrated Domestic Violence Part from January 2006, until February 2008." (7) In February 2008, "she was appointed a Justice of the New York State Appellate Division, Third Department." (8)

While Judge Stein was a practicing attorney, she was elected a Fellow of the American Academy of Matrimonial Lawyers, and she served as "co-chair of the NYS Unified Court System Family Violence Task Force." (9) Judge Stein was also a "founding member of the New York State Judicial Institute on Professionalism in the Law and chaired the Third Judicial District Gender Fairness Committee from 2001-2005." (10) She also "served on the Executive Committee of the Association of Justices of the Supreme Court of the State of New York, as an officer of the New York State Association of City Court Judges, and as a member of the Board of the New York Association of Women Judges." (11)

Before getting into Judge Stein's decisions on the New York Court of Appeals, it is interesting to look into her decisions while she was on the New York State Appellate Division, Third Department and, what, if any, tendencies there were. Although Judge Stein was not a one-sided liberal on the Appellate Division, many of "[h]er positions were the more ideologically liberal ones taken on the Appellate Division," especially when the Court was divided. (12) As a result, the more-liberal wing of the New York Court of Appeals, consisting of former Chief Judge Jonathan Lippman, former Judge Carmen Ciparick, and former Judge Theodore Jones, regularly sided with her. (13) However, while Judge Stein was on the Court of Appeals with former Chief Judge Jonathan Lippman, he did not always agree with her, and was sometimes a lone dissenter to her majority opinions. (14) Additionally, when a close decision was rendered, and Judge Stein wrote a dissenting opinion, Chief Judge Lippman was most often on the other side. (15)

Not surprisingly, Judge Stein had a strong record of siding with aggrieved women and their children while on the Appellate Division. (16) She also had a very strong record of deferring to administrative decisions when challenged. (17) Both of these tendencies can likely be attributed to Judge Stein's extensive experience in Family Court, matrimonial law, and serving as an Administrative Judge on the Domestic Violence Part of Rensselaer County. (18) Interestingly, she does not appear to have an "overwhelmingly clear pattern" in criminal cases; however, some of her dissenting opinions showed her to lean towards the sensitive side when dealing with intrusions on a criminal defendant's rights. (19)

The remainder of this article will discuss both the majority opinions and dissenting opinions authored by Judge Stein to examine the course she has taken while on the New York Court of Appeals.

WHERE JUDGE STEIN STANDS IN CRIMINAL CASES

In two of the three decisions below, Judge Stein has voted in favor of the criminal defendant. Although it cannot be said that she always votes in favor of the accused, (20) it may be fair to say, through the lens of her dissenting opinions, that she votes in favor of the accused more often than not when the Court addresses intrusions on a criminal defendant's rights. (21)

People v. Valentin (22)

The defendant in People v. Valentin was convicted of manslaughter in the first-degree. (23) The victim, McWillis, had picked up the handle of a mop and approached the defendant, at which time he was shot. (24) However, the People's primary witness provided inconsistent testimony regarding the timing of events, indicating that the defendant took out his gun only after McWillis swung the mop handle, while also indicating that the actions occurred simultaneously. (25)

In a 4-3 decision, the Court of Appeals held that there was a reasonable view of the evidence that the defendant was the initial aggressor and thus, the inclusion of the initial aggressor exception in the trial court's justification charge to the jury was proper. (26)

Judge Stein dissented, reasoning that the inconsistent eye witness testimony foreclosed any inference that the defendant shot McWillis before he was threatened by McWillis, and...