Victoria Graffeo: Steady Hand, Lasting Impact on the New York Court of Appeals

By Jennifer E. Forward

Jennifer Forward is a 2025 graduate of Albany Law School and graduated from Cazenovia College in 2022 with a B.S. in Psychology and Criminal Justice. While at Albany Law, she was deeply involved in the Anthony V. Cardona ’70 Moot Court Program, serving on the Moot Court Board for two years and leading the program as its Executive Director in her final year. Originally from Morrisville, NY, Jennifer now resides in Syracuse, NY, where she has worked at Lippes Mathias, LLP since her law school graduation, focusing her practice on health law and labor and employment law.


Judge Victoria Graffeo’s fourteen years on the New York Court of Appeals were defined by meticulous statutory interpretation, clarity, and a commitment to bright-line rules that continue to shape state jurisprudence.

Defying early expectations that she would be strictly pro-prosecution, her majority opinions expanded criminal jurisdiction in People v. Kassebaum and curtailed police overreach in People v. McIntosh. They safeguarded press freedoms in Holmes v. Winter and affirmed municipal zoning authority in Wallach v. Town of Dryden.

Across criminal law, intellectual property, constitutional protections, and land use, Judge Graffeo combined respect for precedent with adaptability to modern realities, leaving a steady and lasting imprint on New York law, even after her controversial non-reappointment.

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To read the paper, open HERE.

The Appointment of Justice Stein

Defying History and Changing the Court of Appeals

By Joseph O'Rourke
Joseph O’Rourke is a third year law student at Albany Law School. He graduated magna cum laude from Siena College in 2012, majoring in Political Science and minoring in Philosophy. Joseph currently serves as Editor-in-Chief of the Albany Law Review, and has previously interned with Young/Sommer LLC and the Honorable Thomas J. McAvoy of the Northern District of New York.
This paper, comparing New York Court of Appeals nominee Justice Leslie Stein with former associate judge Victoria Graffeo, was prepared for the Judicial Process Seminar, Fall 2014.

[Following graduation, Mr. O'Rourke will serve as a law clerk on the Court of Appeals’ Central Legal Research Staff. Of course, the views expressed in his paper are his alone and in no way reflect those of the Court.  vmb]   


On October 17, 2014, New York Governor Andrew Cuomo made his third nomination to New York's highest court, the Court of Appeals. The decision came just weeks before the election that determined whether Governor Cuomo would continue as governor for a second term, and it is proving to be the most controversial of Governor Cuomo’s first three selections for the Court. Controversial not because of whom the Governor selected, but rather who was passed over.

Governor Cuomo choose Appellate Division, Third Department Justice Leslie E. Stein, over Judge Victoria A. Graffeo, a sitting member of the Court of Appeals whose fourteen year term expired on November 29, 2014. The addition of Justice Stein, a Democrat, would shift control of the Court to Democrats for the first time in many years. Most notably, Stein's nomination by Cuomo marks only the second time in the thirty-five year history of the appointment system for the Court of Appeals where a governor failed to choose an eligible incumbent for reappointment.

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To read the paper, open HERE.

Judge Victoria Graffeo’s Approach to Constitutional Criminal Procedure

By Chelsy Jones
Chelsy Jones, a May 2013 graduate of Albany Law School, is a Law Clerk for the West Firm, PLLC in Albany.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science.  While in law school, she was a Senior Editor at the Center, a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and a Research Assistant for the Albany Law School Clinic and Justice Center.  Chelsy also worked year round as a legal intern at the Schenectady County District Attorney's Office, and acted as the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
She wrote this essay for the State Constitutional Adjudication Seminar, Spring 2013.

            In the realm of criminal constitutional issues, a brief review of recent Court of Appeals opinions authored by Judge Victoria Graffeo reveals an interesting pattern of decisions against the rights of the accused and a strong reliance on state precedent rather than federal.

            In People v. Grice,[1] Graffeo authored an opinion dealing with the constitutional right to counsel and when said right attaches.  In Grice, the defendant argued that his indelible right to counsel attached at the moment his father told the police that he had an attorney.[2]  Judge Graffeo, however, disagreed, and held that actual appearance or communication by the attorney is required for attachment.[3]  She based her decision entirely on the New York Constitution and cited only New York cases in support of her position, relying heavily on precedent.[4]  Graffeo specifically addressed the evolution of New York’s right to counsel jurisprudence and the importance of pragmatic and simple tests to avoid irregularity and uncertainty. 

            Two years earlier, Judge Graffeo authored a precedent-setting decision dealing with search and seizure rights in New York in People v. McIntosh.[5]

"THE UNTOLD SECRETS OF EAGLE STREET"

 As Told by the Judges of the Court of Appeals Themselves!

The 7th Annual Chief Judge Lawrence H. Cooke Symposium

Thursday, March 21

5:00 - 7:00pm

Albany Law School

For more information, click HERE.

The New York Court of Appeals: Analyzing the Status of Workers’ Rights in New York

By Christina French
Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel.
This paper was prepared for the Judicial Process Seminar, Fall 2011 semester. It is Ms. French's 2d publication for the Center. (See Holmes and Cardozo: Early Contributions to the Progression of the Law, Nov. 28, 2011.)

This paper will provide a brief summary of several judicial opinions issued by the New York State Court of Appeals regarding employee benefits awarded for accidental on the job injury. The intention of the exercise is to provide the practicing attorney and other legal scholars with some insight into the status of workers’ rights as represented in the decisions of the New York Court of Appeals.

Two pieces, written by Holmes and Cardozo, contribute to the study of the judicial process by articulating the theory of legal realism and its approach to understanding what it is that judges do when they make decisions, and how that contributes to the progression of law. Before delving into the decisions, it is important to explore the theory of legal realism and how it can be applied to the study of the law of the courts.

Justice Holmes has written about the way in which judges begin with a decision first, and only after that decision is made, do they come up with reasons to explain them. Similarly, Justice Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins, and that is with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and logical approach to decision making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

There are many avenues of workers’ rights issues that could be reviewed in order to provide the most comprehensive overview of how the topic is treated by the New York Court of Appeals. This paper will focus on those worker’s rights issues as related to awarding worker benefits for on the job injuries. The research was further limited to three years to ensure that the same composition of judges decided all of the cases.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

The NYCOA Bunch: An Analysis of Divided Criminal Cases at the New York State Court of Appeals

By Alexander Hyde
Alex Hyde, a 2011 summa cum laude graduate of Albany Law School, is currently employed in the General Counsel’s office for a group of insurance companies, headquartered in Glenmont, N.Y.  In his paper and slides, which were prepared for the Fall 2010 Judicial Process Seminar, Alex tracked and analyzed voting trends at the New York Court of Appeals in divided criminal cases between 2007 and 2010.


Observing the actual function of courts has been the work of many legal realists. It is an important task for many reasons.  First, courts make law and determine rights.  Demystification of the judicial process helps to decipher how justice is meted out; it can also prepare a practitioner.  Second, many realists seek to improve the way courts function. The first step in that process is to acknowledge the current role of the judiciary and isolate areas of weakness.  Finally and most importantly, for many realists the determination of what courts actually do is important simply to expose the inaccuracies of alternative pronouncements of the judicial process.  If ignorance tolerates injustice, disingenuousness accelerates and exacerbates it.  A frank discussion of reality, the argument goes, is the necessary approach to a judicial system which, admittedly, is impossible to perfect.

For my foray into the realist’s world, I chose to observe the New York State Court of Appeals.  The Court’s recent change of leadership piqued my interest. Specifically, I sought to determine the significance of the replacement of former Chief Judge Judith Kaye with the current Chief Judge, Jonathan Lippman.  Other than their swap, the court’s composition has remained unchanged since 2006.  Therefore, the two chiefs were each paired with the same six confederates for roughly the same period of time as of the writing of this paper.

To glean the significance of this judicial switcheroo, I chose to analyze divided criminal cases at the Court for the final two years of Chief Judge Kaye’s tenure, and for the first two years of Chief Judge Lippman’s tenure.  I focused on whether cases were decided “pro-defendant” or “pro-prosecution”.  I made the same determination for each judge’s written opinions and dissenting votes.  Based upon that compilation of data, I attempted to identify any discernible trends, and the results of that effort are reported below.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.
To view the complete slide presentation, open HERE.
(It is then best to download the presentation and view it from there.)

The Treatment of Criminal Cases by the High Courts of Massachusetts, New York, and New Jersey

A Presentation on Preliminary Observations of the Patterns Emerging  from the Data, 2005-2010

By Roslyn Fuller

In this PowerPoint presentation, Roslyn Fuller, a third-year student at Albany Law School, a Senior Editor of the Law Review, and Co-Executive Director of the Center, compares the treatment of criminal cases by the high courts of Massachusetts, New York, and New Jersey.  Among other things, the presentation looks at the members of the three tribunals, with particular attention to the experience of each of them with criminal law. Ultimately, the presentation examines data based on more than 200 divided criminal decisions over six years, 2005 through 2010, and offers initial observations based on the decisional and voting patterns within the three state supreme courts.

To view the full presentation, click here --then, to view the slide show, click Download + Slide Show + From the Beginning.