THE HON. MICHAEL J. GARCIA: FROM PROSECUTOR TO THE COURT OF APPEALS.

• Author: O'Bryan, Eric
• Position: New York Court of Appeals

Michael J. Garcia began his journey to the Court of Appeals when he graduated from Albany Law School in May 1989 as Valedictorian. (1) His time in Albany left him feeling "always... grateful to Albany Law" and motivated to maintain a significant presence with the school. (2) A presence that is appreciated by Albany Law School and the students alike. Judge Garcia started his legal career as an associate with Cahill Gordon & Reindel in Manhattan. (3)

He quickly received his first exposure to the Court of Appeals when he accepted a two-year position as a law clerk to, then Associate Judge of the Court, Judith S. Kaye in 1990. (4) His relationship with Judge Kaye helped him develop a greater understanding of the court's prestigious history, quoting from a book of Cardozo's 1920s Yale lectures, that the late judge gave to him, at his swearing in ceremony. (5) Judge Garcia obtained great admiration for the late Judge Kaye during his clerkship, identifying her work ethic as "second to none" and noting that she "exemplified fairness and integrity in the judicial process." (6)

After completing his clerkship with Judge Kaye, Judge Garcia transitioned to the United States Attorney's Office for the Southern District of New York, where he entered the trenches and began to develop his experience as a trial attorney. (7) In this role, Judge Garcia had the opportunity to litigate a variety of criminal matters. In an iconic and career defining moment for Judge Garcia, he joined the 1993 World Trade Center bombings case by volunteering to personally deliver a search warrant at dawn. (8) This resulted in the first time he called a witness in federal court, a moment that he had immortalized in an oil painting. (9) Ramzi Ahmed Yousef, the mastermind of the World Trade Center bombing, was convicted by a federal jury in 1997. (10) Similarly, Judge Garcia obtained the conviction of Mohamed Rashed Daoud al-'Owhali for bombing the U.S. Embassy in Nairobi, Kenya. (11) In his closing, Judge Garcia stated that this was "mass murder in cold blood." (12) In addition to al-'Owhali, Mohamed Sadeek Odeh and Wadih el Hage were convicted for their roles in the conspiracy and Khalfan Khamis Mohamed for bombing the embassy in Tanzania. (13)

After leaving for four years, Judge Garcia returned to the United States Attorney's Office as the United States Attorney in 2005. (14) In this role, he oversaw the office donned "a steppingstone for the law's best and brightest" from 2005 to 2008. (15) Judge Garcia oversaw the investigations of former Governor Elliot Spitzer and John A. Gotti. (16) After Spitzer's name came up in a prostitution investigation, Judge Garcia declined to prosecute because the office will not benefit from winning a prosecution brought for the wrong reason. (17)

He stepped down in 2008 and joined Kirkland & Ellis in New York City. (18) From that post, he was hired by Federation Internationale de Football Association (FIFA) to lead the corruption investigation in the 2018 and 2022 World Cup bidding process. (19) Judge Garcia was unafraid to ensure that the ethics code remained the highest authority, opining that "no-one is above the ethics code." (20) He found that FIFA suffered from a lack of leadership and transparency in their ethics code. (21) This lack of leadership was clear when FIFA reduced Judge Garcia's 350-page findings report in to a 42-page summary that Judge Garcia identified as being "materially incomplete" and an "erroneous representation of the facts and conclusions." (22) Ultimately, this flawed leadership structure and misrepresentation of his findings led to his decision to resign from the investigation. (23)

Certainly, Judge Garcia's experience with Judge Kaye and the U.S. Attorney's Office has shaped his views of the law, New York's highest court and legal ethics. His ethics were clear in how he viewed his role as U.S. Attorney, stating that "the real guiding principle of th[e] office, is that we do the right thing for the right reasons." (24) Additionally, his experience with Judge Kaye suited him well to take this mindset with him to the court and achieve his goal to "have something of the wisdom and enough of the courage to help light that path forward." (25)

1. ON THE COURT OF APPEALS

   Since his February 8, 2016 court appointment confirmation, Judge Garcia has authored thirty-eight opinions, including nineteen authored for criminal cases, (26) and nineteen in civil cases. (27) Eighteen of these opinions were written for the majority; (28) nine were concurring opinions; (29) and twelve were dissenting opinions. (30) Of the eighteen majority opinions authored, eleven of these decisions were criminal cases (31) and seven were civil cases. (32)

   A trend has developed in the opinions authored by Judge Garcia, when he votes with the majority, the decisions are typically unanimous. Fourteen of his eighteen majority opinions were unanimous (33) and eight of his nine concurring opinions were unanimously decided. (34) Only four of the twenty-seven opinions were deeply divided, cases with two or more dissenters. (35) The final case contained a solo dissent from Judge Wilson. (36) Additionally, the three concurrence opinions Judge Garcia joined resulted in a unanimous vote. (37) While the reason is unclear, the trend shows that when Judge Garcia is writing with the majority, the decision is generally unanimous.

   The majority opinions authored by Judge Garcia are predominately criminal cases, with eleven criminal cases and only seven civil opinions authored. (38) Within these majority decisions, Judge Garcia's experience as a prosecutor and respect for the judiciary is displayed. His opinions have revealed a trend of pro-prosecution voting and a respect for judicial discretion. Nine of the eleven criminal majority opinions authored by Judge Garcia can be classified as being pro-prosecution. (39) For example, in People v. Parrilla, Judge Garcia held that the mens rea requirement for the defendant's conviction of third-degree criminal possession of a weapon did not require the prosecution to prove that the defendant had knowledge that the knife possessed met the definition of a "gravity knife." (40) In upholding the conviction, Judge Garcia stated that "the mens rea prescribed by the legislature for criminal possession of a gravity knife simply requires a defendant's knowing possession of a knife, not knowledge that the knife meets the statutory definition of a gravity knife." (41)

   Similarly, in People v. Stephens, Judge Garcia held that that the Syracuse Noise Control Ordinance does not "offend the constitutional void-for-vagueness doctrine of due process." (42) The ordinance precludes an individual from creating "unnecessary noise" in a vehicle on a public highway that can be heard beyond 50 feet from the car. (43) The officers initiated a traffic stop pursuant to the ordinance and subsequently discovered that the defendant possessed crack cocaine. (44) In determining that the ordinance was constitutional, Judge Garcia upheld the criminal conviction for the possession of crack cocaine. (45)

   In People v. Viruet, Judge Garcia determined that the prosecution's failure to provide the defense with the surveillance tape after their timely request warranted an adverse inference jury instruction. (46) However, Judge Garcia held that the failure to provide the adverse inference was harmless error, and thus, the conviction for murder in the second degree was upheld. (47) This decision was based on the strength of the prosecution's proof. (48)

   While there are two majority opinions that are not categorized as pro-prosecution, these decisions are not necessarily pro-accused either. In People v. Cook, the court held that only one Sex Offender Registration Act risk level determination is permitted for a "single set of '[c]urrent [o]ffense[s]' forming the basis of a risk assessment." (49) In People v. Allard, Judge Garcia held that the Defendant adequately preserved his challenges when they were raised in a hearing. (50)

   Additionally, Judge Garcia's majority opinions have shown a respect for judicial deference. In People v. Powell, the trial court precluded the defendant's attempt to enter third-party culpability evidence as being speculative and misleading. (51) Judge Garcia held that the trial court appropriately used its discretion when it denied the admission of the evidence as too speculative. (52) In People v. Morgan, Judge Garcia deferred to the court's ability to provide supplemental instructions when he upheld the defendant's conviction after finding that the supplemental instruction that the jury verdict must be unanimous was not coercive. (53)

   This deference to trial courts is also present in the civil majority opinions authored by Judge Garcia. In Columbia Cty. Support Collection Unit v. Risley, Judge Garcia held that it was permissible for the family court, pursuant to its discretion, to sentence an individual to three consecutive sentences for three separate order of commitment violations. (54) In S.L. v J.R., "a 'one size fits all' rule mandating a hearing in every custody case" was rejected, providing the family court with the discretion to bypass such a hearing under certain circumstances. (55) Similarly, Judge Garcia deferred to the discretion of the Commissioner of the New York State Department of Motor Vehicles in Acevedo v. New York State Department of Motor Vehicles. (56) The court determined that the denial of the petitioner's requested reissue of their driving privileges was "a valid exercise of the Commissioner's delegated authority." (57)

   Judge Garcia continued this judicial deference trend in his concurrence in People v. Boone. In Boone, Judge Garcia wrote separately to disagree with the court's application of an automatic instruction. (58) In Judge Garcia's opinion, the decision when to provide the jury with the instruction should remain firmly in the discretion of the trial judge. (59)

2. ...