NY GOP Appellate Judges
Swampe In Democratic Vote Surge

By Joel Stashenko
New York Law Journal
New York Lawyer
November 6, 2008

Republican Supreme Court Justice Anthony J. Carpinello yesterday blamed a Democratic run on the polls not seen in more than four decades for his Election Day defeat and the impending loss of the Appellate Division, Third Department, seat he has held since 1996.

Justice Carpinello was one of three Appellate Division justices, all Republicans, who lost their Supreme Court seats on Tuesday when New York voters overwhelmingly backed Democratic President-Elect Barack Obama and gave Democrats a majority in the state Senate for the first time in 43 years.

Other Appellate Division justices losing re-election bids were Robert J. Lunn, a Fourth Department justice since 2006 who also had experience on the Second Department bench, and Second Department Justice Robert A. Lifson, who was named to that bench in 2004.

Justice Carpinello was beaten by Democratic Rensselaer County Court Judge Patrick J. McGrath for a seat on the Supreme Court in the Third Judicial District.

"I think it is pretty clear that it was a Democratic landslide," Justice Carpinello said yesterday in an interview. "My fear throughout the campaign was that it would be a reprise of the [Lyndon] Johnson landslide of '64, when every Republican on the ballot lost. Unfortunately, it was."

Unofficial results showed Judge McGrath winning 56 percent to 44 percent.

See a chart of Election Day results in judicial races.

The Third Judicial District comprises Albany, Rensselaer, Ulster, Columbia, Greene, Schoharie and Sullivan counties.

Judge McGrath is a former Troy Police Court judge who became Rensselaer County Court judge in 2004.

Justice Carpinello was first elected to the Supreme Court bench in 1994 and was running for a second 14-year term. He was appointed to the Third Department by then-Governor George E. Pataki in 1996.

"It was an absolutely wonderful experience," Justice Carpinello said. "I have absolutely no regrets whatsoever."

The judge said he was unsure of his next career move once his term expires on Dec. 31. He spent 20 years as a commercial litigation specialist, most recently as a partner with Hiscock & Barclay in Albany, before joining the bench.

"Every career change in my life has been a positive one," he said. "I am not making any immediate plans. I've never had a problem earning a living."

His departure will leave Governor David A. Paterson with two selections to the Third Department bench. The governor has yet to fill one of the two new seats created on the Albany-based court by former Governor Eliot Spitzer.

Justice Lunn also failed to win election for a second term to the Supreme Court in the Seventh Judicial District, comprising Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates counties.

He finished third in a contest in which the top two vote-getters were elected. Republican Monroe County Court Judge Elma A. Bellini and Democrat Joanne M. Winslow, an assistant Monroe County assistant district attorney, received 27.9 percent and 27.7 percent of the votes respectively. Justice Lunn got 23 percent.

Justice Lunn served 18 months on the Second Department after his designation by Mr. Pataki in 2005. Mr. Pataki transferred him to the Fourth Department just before the Republican governor's term ended in 2006.

Justice Lunn did not return a call seeking comment yesterday.

Long Island voters also ousted several Republican incumbents, including Justice Lifson. According to the Suffolk County Board of Elections, Justice Lifson, who was endorsed by the Republican and Working Families parties, garnered just over 10.5 percent of the vote in the Tenth Judicial District.

'Uphill Battle' in Long Island

In an interview yesterday, Justice Lifson expressed disappointment over losing his seat, but acknowledged the race had been an "uphill" battle influenced by the popularity of Mr. Obama at the top of the ticket.

When he ran and won 14 years ago, Justice Lifson said Mr. Pataki's margin of victory in both Suffolk and Nassau counties made it an easy election win for Republican judges. This time around, things were different, he said.

"Traditionally, if you are a Republican, you need more than two lines to win," Justice Lifson said. Adding that he is "available to all opportunities" after Jan. 1, he said the time spent on the bench was "the highlight of my career no matter where life takes me."

The four winning candidates in the Tenth District all had the Democratic line. William J. Condon, Hector D. LaSalle, Jerry Gargulo and Edward A. Maron garnered, respectively, 24.1 percent, 15.2 percent, 14.4 percent and 13.4 percent of the vote.

It was the third straight year a Republican Second Department justice failed to win election to the Supreme Court. Former Justices Robert Schmidt in 2007 and Thomas Adams in 2006 also lost in Supreme Court races.

Also on Long Island, Acting Suffolk County Court Judge Patricia M. Filiberto, also running for Supreme Court justice, got just under 11 percent and lost. Judge Filiberto was endorsed solely by the Republican party.

Another Republican, incumbent Nassau Supreme Court Justice Kenneth A. Davis, lost a bid to keep his seat, with 11.4 percent of the vote.

Republican Carnell T. Foskey, who has been on leave as supervising judge of Nassau's Family Court, was defeated in his bid for re-election by Robin M. Kent, a Democrat who garnered 55 percent of the vote. Ms. Kent is also the sister of sitting Family Court Judge Conrad D. Singer.

In Nassau District Court, incumbent Judge Dana M. Jaffe, who has been on the court since 1997, also lost her seat, with only 9 percent of the vote. The Republican, Independence and Conservative parties had endorsed Judge Jaffe.

The five winning candidates in the Second District got between 11 percent and 19.6 percent of the vote.

Judge Jaffe criticized the politicizing of the judicial election process and expressed hope that future incumbent judges would be cross-endorsed across party lines.

"It's unfortunate that the public doesn't know enough about the judges to know if they are voting for somebody that is experienced and qualified," she said, adding that in her view there were no "blue litigants or red litigants - they were all equal to me."

Judge Jaffe said she would enter private practice, focusing on matrimonial and criminal law.

Easy Wins in New York City

There were no surprises in New York City.

Democratic slates for Supreme Court easily triumphed over their Republican opponents in Queens and the Bronx. The Democratic slates in Manhattan and Brooklyn did not face any Republican opponents.

In the first race in the newly created Thirteenth Judicial District on Staten Island, the Democratic candidate, Civil Court Judge Judith N. McMahon, defeated Civil Court Judge Philip S. Straniere, the Republican, 78,583 votes to 54,014.

Nora S. Anderson, a trusts and estates lawyer who ran unopposed as the Democratic candidate for Surrogate in Manhattan, is facing an investigation into the source of funds she used to pay off a campaign loan, according to a report in The New York Times.

Ms. Anderson defeated two rivals in a Sept. 9 Democratic primary.

The Times reported on Oct. 27 that the Manhattan District Attorney's Office is seeking to determine the source of funds Ms. Anderson used to pay down all but $5,900 of a $225,000 loan she received from lawyer Seth Rubenstein, in whose office she has worked since 1999. Mr. Rubenstein also had contributed $25,000 to Ms. Anderson's campaign. The repayment was disclosed in a report filed with the Board of Elections on Oct. 24.

The Times reported that in a disclosure report filed in September, Ms. Anderson's campaign had reported that $197,000 of the loan remained unpaid. Under state law, any portion of a loan that is not repaid by election day is treated as a campaign contribution.

The maximum contribution an individual can make to a candidate running in a countywide election in Manhattan, after winning a primary, is approximately $79,000 under a formula set by law.

Mr. Rubenstein yesterday declined to comment, and said that Ms. Anderson is out of town and unavailable for comment.

In an Orange County race for Surrogate Court, the Republican candidate, Robert A. Onofry, bucked the statewide trend by defeating Democrat Stephen A. Hunter. Mr. Hunter had been appointed by Mr. Paterson to fill a vacancy on the court for the remainder of the year.

In Dutchess County, Democrat Joan Posner defeated Thomas O'Neil, an independent with Republican backing, in a race for Family Court.

Vesselin Mitev and Daniel Wise contributed to this story.

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