Tuesday, November 5, 2013

Judge Levine: An Enigmatic Approach to Decision-making

By Michelle K. Mallette
Michelle Mallette, a 2013 graduate of Albany Law School, is now a law clerk at Couch White, LLP in Albany. She earned a Bachelor's Degree from the United States Military Academy with a major in Law and a minor in Systems Engineering. While in law school, she was the Executive Director for the Center, the Executive Editor for State Constitutional Commentary on the Albany Law Review, and a Research Assistant for Professor Timothy Lytton. She also worked as a legal intern at the Third Judicial Department Town & Village Courts, and the NYS Appellate Division, Third Department.
Michelle's essays on judicial activism and on judicial restraint, as well as her presentation on Holmes & Cardozo, have previously been published by the Center. This essay on retired NY Court of Appeals Judge Howard Levine was prepared for Prof. Bonventre's State Constitutional Adjudication seminar, Spring 2013.

Howard A. Levine has a long history in the judiciary.  Levine served as an Associate Judge on the New York State Court of Appeals from 1993 to 2002.[1]  From 1981 until his appointment to the Court of Appeals, Levine was an Associate Justice for the Appellate Division, Third Department and at the State Supreme Court, Fourth Judicial District.[2]  Prior to that, he served as a Family Court Judge for Schenectady County.[3] 
All told, Judge Levine amassed over three decades of judicial experience.  Yet, discerning his jurisprudential ideology is extremely difficult, partly because he does not fit the mold of a political partisan, and partly because he so rarely dissented.[4]  Given Judge Levine’s political affiliation with the Republican Party,[5] who he voted most often with on the Court of Appeals,[6] and his history as a former prosecutor,[7] one would expect Judge Levine to have consistently decided cases as a political conservative would.  His voting patterns however, are neither consistent nor predictable.

For example, in three of the cases looked at for this study, Judge Levine voted with the criminal defendant in two of them, once in a unanimous opinion which he authored,[8] and once in as a lone dissenter.[9]  In the third case, Judge Levine concurred with Judge Bellacosa’s dissent, siding against the rights of the accused.[10]  
In People v. Letterlough, the defendant was convicted of driving while under the influence, his sixth such offense.[11]  As a condition of defendant’s plea agreement, the trial court mandated that defendant place a fluorescent license plate inscribed with the words “convicted DWI” to any vehicle he drove during his five year probationary period.[12]  The Court of Appeals, however, held the condition unconstitutional as outside the sentencing court’s authority.  Judges Bellacosa and Levine dissented.[13]  They found the imposed condition rationally related to defendant’s rehabilitation and thus well within the court’s authority under the Penal Law.  In their view, the Legislature granted sentencing courts broad discretionary authority, and the Court was incorrect in diminishing that delegated power.  There is no question that this was a conservative ruling, but his other two rulings adopt a more liberal stance.
In People v. Stokes, an inmate was convicted of aggravated harassment for throwing excrement on a corrections counselor.[14]  As a result, defendant was sentenced to fifteen years of further imprisonment.  On appeal, the defendant’s counsel asked the court to be relieved, claiming that defendant had no non-frivolous claims.  The Appellate Division agreed and affirmed defendant’s conviction.  Judge Levine, writing for a unanimous Court, overruled the decision and voted in favor of the defendant.  In his estimation, there were at least three issues that could have been argued on appeal:  possible prejudice to defendant in keeping him shackled during the trial, failure to include a circumstantial evidence charge, and excessiveness of the imposed sentence.[15] 
Likewise, in People v. Vernace, the defendant was indicted on two counts of murder seventeen years after allegedly committing the crime.[16]  The Court of Appeals concluded that good cause existed for the delay in prosecuting the defendant due to the difficulty in locating witnesses and several other suspects who went missing immediately after the murders took place, as well as the fact that defendant was free during the pre-indictment period.  As such, the majority concluded that there had been no actual prejudice to defendant.  Judge Levine was the sole dissenting voice on the Court.  According to him, New York does not require actual prejudice in order to find protracted delay in prosecution violative of due process under the State Constitution.[17]  Rather, the prosecution must establish that there was justification for the delay.  In Judge Levine’s opinion, no good cause existed for the delay in this case; both the integral witness to the case and the defendant were within the jurisdiction of the court.  Moreover, the prosecution brought indictments against both other suspects during the seventeen year lapse of defendant’s prosecution.  Thus, in Judge Levine’s view, there was no justification for the delay and the indictment should have been dismissed.
From just those three cases it is impossible to conclusively discern Judge Levine’s judicial ideology.  But it is interesting that Levine, as a Republican, voted for the criminal defendant in two of the three cases, especially considering that he was the lone dissenting opinion in Vernace.
While Judge Levine’s jurisprudential leanings are hard to pigeon-hole into any one category, at least in terms of state constitutional adjudication, Judge Levine appears to have followed the primacy approach.  In the five cases studied for this exercise,[18] his decisions rested almost exclusively on interpreting the New York State Constitution and New York precedent.  Judge Levine only looked to federal precedent where necessary—either to incorporate precedent that accords with his opinion, or because the defendant specifically argued for a federal right.  In some instances, Judge Levine discussed federal precedent to distinguish the narrow rights afforded under Supreme Court jurisprudence from the more expansive view of the New York courts.[19]
Identifying some of his other decision-making approaches may not be so easy. Indeed, he may not have had any.  Instead of displaying a predisposition to decide a case a particular way, from all accounts it appears that Judge Levine tackled each case with a clean slate, assessing the law and the facts with an independent and logical mindset.  He does not fit the mold of a judge who is clearly pro-prosecution or clearly for the rights of the accused, nor one that is predominantly conservative or predominantly liberal.  Rather, Judge Levine seemed to have a methodology all his own.

[1] Howard A. Levine, Whiteman Osterman & Hanna LLP, http://www.woh.com/attorneys/Howard_A_Levine_51.htm.
[2] Id.
[3] Id.
[4] Dissents, in particular, best reveal a judge’s position on certain issues.  Vincent M. Bonventre, Justice Alito’s Goat-What Gets It? (Part I), New York Court Watcher (Feb. 16, 2010), http://www.newyorkcourtwatcher.com/2010/02/justice-alitos-goat-what-gets-it.html.  A Westlaw search revealed that Judge Levine authored or concurred in less than forty dissents during his tenure on the Court, or less than an average of four dissents a year.
[5] Kevin Sack, Cuomo Names Republican to Court of Appeals Seat, N.Y. Times (Aug. 13, 1993), available at http://www.nytimes.com/1993/08/13/nyregion/cuomo-names-republican-to-court-of-appeals-seat.html?src=pm.
[6] When Judge Levine did dissent, he did so most often with Judge Bellacosa and Judge Simons, both staunch republicans.  See Alan Finder, Judge Bellacosa to Leave Court of Appeals Before Term Ends, N.Y. Times, Apr. 1, 1999, available at  http://www.nytimes.com/1999/04/01/nyregion/judge-bellacosa-to-leave-court-of-appeals-before-term-ends.html; Marjorie S. McCoy and David E. McGraw, Richard D. Simons, New York State Unified Court System, http://www.courts.state.ny.us/history/legal-history-new-york/luminaries-court-appeals/simons-richard.html.
[7]Howard A. Levine, supra note 1.
[8] People v. Stokes, 744 N.E.2d 1153 (2001).
[9] People v. Vernace, 756 N.E.2d 66 (2001).
[10] People v. Letterlough, 655 N.E.2d 146 (1995).
[11] Id. at 147.
[12] Id.
[13] Id. at 151.
[14] Stokes, 744 N.E.2d at 1153.
[15] Id. at 1156.
[16] People v. Vernace, 756 N.E.2d 66, 66 (2001).
[17] Id. at 68–69.
[18] Vernace, 756 N.E.2d 66 (2001); Stokes, 744 N.E.2d 1153 (2001); People v. Lewis, 742 N.E.2d 601 (2000); Grumet v. Pataki, 720 N.E.2d 66 (1999); Letterlough, 655 N.E.2d 146 (1995).
[19] Vernace, 756 N.E.2d at 68-69.