Jim Owles Liberal Democratic Club Urges Governor Hochul no to consider Judge Cannataro as Acting Chief Judge
Dear Governor Hochul,
The Jim Owles Liberal Democratic Club writes to express our concern regarding the Court of Appeals’ decision to elevate Judge Anthony Cannataro to Acting Chief Judge. We hope that you are not swayed by the Court’s decision and urge you not to consider nominating Judge Cannataro to fill the position on a permanent basis.
We appreciate the work you have done for the LGBTQIA+ community, including creating the Lorena Borjas Transgender Wellness and Equity Fund and signing the Gender Inclusive Ballot Act. In these difficult times for our community, where our rights are under threat from a hostile Supreme Court and from bigotry and hatred stoked by the Republican party, we appreciate all the more that you have made it a priority to advance the interests of our community. As an LGBTQIA+ organization, we believe we can contribute helpful information concerning Judge Cannataro’s values relevant to his promotion.
Although Judge Cannataro is openly gay, he does not represent our values. We urge you not to nominate him for the position of Chief Judge.
We are concerned about Judge Cannataro’s record in three distinct regards:
First, he is an obvious proxy for Chief Judge DiFiore. Independent sources have reported that Judge DiFiore may have gone so far as to violate Judiciary Law 211(3) in her quest to install Judge Cannataro. And for good reason, given that he has voted with her close to 100% of the time during his short stint on the Court. Those votes have led to disastrous outcomes for LGBTQ New Yorkers, including most notably his tie-breaking vote to commit control of New York’s congressional and senate districts to a Republican justice who, sure enough, set out maps that targeted for destruction the congressional districts held by openly queer representatives.
LGBTQIA+ people are disproportionately overrepresented in our criminal justice system, whether as defendants or victims of crime. Yet Judge Cannataro has followed Chief Judge DiFiore’s disfavor of granting criminal leave applications so conscientiously that he has rarely if ever granted leave to appeal in any of the criminal cases submitted to him since he joined the bench, thereby maintaining the Court’s unacceptably low workload of 25 days a year.
In an era without Roe v. Wade, and where gay rights are under attack by an increasingly religious fundamentalist judiciary, we cannot have a Chief Judge who simply follows the whims of the conservative members of the court.
Second, Judge Cannataro has used his administrative powers to put New Yorkers in danger in order to benefit the rich and powerful. In June 2020, as New York City Civil Court Administrative Judge, Judge Cannatoro attempted to reopen Brooklyn housing court in order to evict New Yorkers at the peak of the COVID-19 pandemic. The decision was a disaster of both empathy and public health, simply to enrich New York’s landlords. The Chief Judge of the New York Court of Appeals runs the entire New York State court system. Judge Cannataro’s poor administrative judgment makes him a uniquely poor choice for Chief Judge. LGBTQ New Yorkers are disproportionately likely to face housing insecurity and homelessness, but Judge Cannataro has used his power as an administrator to side with landlords over at-risk tenants.
Third, Judge Cannataro’s judicial record since his elevation to the Court of Appeals has demonstrated that a court under his watch will be anathema to New York’s values and to the lives of LGBTQIA+ New Yorkers:
• People v Blandford, 2021 NY Slip Op 05619 (2021) - Judge Cannataro sided with the other three conservative judges over a three-judge dissent to hold that a hug was evidence of potential criminal activity—all to support a marijuana prosecution.
• People v Ibarguen, 2021 NY Slip Op 05617 (2021) - Judge Cannataro sided with the conservative majority to hold, over a two-judge dissent, that police were constitutionally entitled to storm into a house without a warrant during dinner, arrest everyone inside, and then gather evidence in the house to prosecute the dinner guests, on the theory that dinner guests have no reasonable expectation of privacy.
• People v Powell, 2021 NY Slip Op 06424 (2021) - Judge Cannataro cast the tie-breaking vote, over a three-judge dissent, to deny the defendant the right to introduce testimony about false confessions, in a case where police extracted a confession from defendant by depriving him of food or medication for over 24 hours.
• Ferreira v City of Binghamton, 2022 NY Slip Op 01953 (2022) - Judge Cannataro sided with the conservative majority to expand the “special duty” doctrine, protecting a police officer who murdered a New Yorker while executing a no-knock warrant, over a two-judge dissent.
• Matter of Mental Hygiene Legal Serv. v Delaney, 2022 NY Slip Op 02578 (2022) - A child was admitted to the emergency room for mental health issues, but because no residential school facilities were available for her after the hospital sought to discharge her, the child remained in the emergency room for several weeks. Judge Cannataro voted with the conservative majority to dismiss the case as moot, over a dissent, despite that similarly situated children regularly languish in emergency rooms for this reason.
• People v Dawson, 2022 NY Slip Op 02772 (2022) - Judge Cannataro sided with the conservative majority to hold that defendant’s statement that he wanted to call his lawyer did not constitute a request to call his lawyer for Fifth Amendment purposes, over a two-judge dissent.
• People v Easley, 2022 NY Slip Op 02770 (2022) - The entire court agreed that DNA evidence was improperly admitted at trial, but Judge Cannataro cast the tie-breaking vote alongside the other conservative judges, without discussing the underlying facts, that the error was harmless. The three-judge dissent demonstrated convincingly that the error was not.
Rights of LGBTQIA+ people are under attack nationwide, with collaboration from the United State Supreme Court. New York does not need a gay, conservative Chief Judge. We need a Chief Judge who will stand up for our values and defend vulnerable New Yorkers from an increasingly hostile federal judiciary.
Thank you for your consideration and your allyship to the LGBTQIA+ community.
Respectfully submitted,
Allen Roskoff
President
Jim Owles Liberal Democratic Club