NO STANDING ZONE
In a victory for convention-based judicial selection that perhaps presages the U.S. Supreme Court’s (likely enough) reversal of Lopez-Torres, the Appellate Division, Third Department affirmed today that Supreme Court Justice Francis Nicolai, Administrative Judge for the Ninth District, has no standing to sue the Westchester County Independence, Conservative and Working Families Parties for not endorsing him as a candidate in the upcoming Supreme Court race. Agreeing with Third District Supreme Court Justice Kimberly O’Connell’s analysis that only party members have the right to object to convention results, the appellate decision states that the “intent” of the statutes guiding judicial conventions are “the benefit of the members of the political party,” and that as a non-member, Nicolai has “no interest in whether the statutory violations asserted have occurred.” Click here to see Judicial Report’s earlier coverage of the dispute.

Commenting on today’s decision, Thomas Abinanti, who represented Nicolai against the Conservative and Working Families parties, said “The appellate division’s decision established serious barriers to enforcing statutory mandates on judicial conventions. It leaves an immense amount of power in the hands of party leaders.”

With the November 6 election just a few days away, Abinanti doubts that there will be time to file for leave take the case to the Court of Appeals. In that case, Judge Nicolai will have only the Democratic Party line on that ballot this coming Tuesday. –L.N. 

A LIKELY STORY
In a stunning development, prosecutors in the murder case of former FBI supervisor R. Lindley DeVecchio announced they would likely drop all charges after a story published years ago came to light and suggested that the government’s main witness had committed perjury. The Village Voice has the story. DeVecchio had been charged with helping mob informant Gregory Scarpa commit four murders in the 1980s and 1990s, largely on the testimony of Scarpa’s mistress, Linda Schiro. “You know, you have to take care of this, she’s going to be a problem,” she quoted DeVecchio as saying before the 1984 murder of a girlfriend of an alleged informant high up in the Colombo crime family, according to the Voice. But there was only one problem: the Voice’s reporter, Tom Robbins, had interviewed Schiro in 1997, only to get a completely different story that exonerated DeVecchio. “Well, Judge, if we can’t go forward after listening to these tapes, or we shouldn’t go forward because of what’s on these tapes,” said the lead prosecutor, Michael F. Vecchione, “then we’re prepared to do what would be necessary, and that would be to dismiss this case if that is the situation.” -J.S.

"DONKEY TURD" AND "WYATT EARP"
Newsday reports that a lawyer who, over a decade ago, received harassing letters from a judge (who was subsequently disbarred over the fracas) is trying his best to prevent the former jurist from regaining his law license. Former Nassau County Judge Marc Mogil began sending the bizarre letters to the attorney, Thomas Liotti, after Liotti disagreed with the judge’s 1991 decision to invite civil rights attorney William Kunstler to speak at the Nassau County Criminal Courts Bar Association. (Liotti then served as president of the association.) The letters occasionally addressed Liotti as “donkey-turd” and were sometimes signed by “Wyatt Earp.” One said, “Be careful, motor mouth, before you get yourself in so deep” and accused him of child abuse and extramarital affairs. An investigation that culminated in the judge’s demise began after Liotti sent a letter to the county Administrative Judge challenging Mogil’s mental stability, noting that Mogil's license plate read “GUILTY” and that he was "”unduly enamored with firearms.” After learning of Mogil’s petition for reinstatement filed before the Appellate Division, Liotti sent a letter noting his opposition. “I have not seen Mr. Mogil do anything during his disbarment to reflect a recovery to mental health or atonement for any of his actions,” the letter said. -J.S.

AM I THE ONLY GUY WHO FINDS THIS WEIRD? 
The Times Herald-Record reports that a man who accused a Washingtonville, New York village trustee of stealing campaign signs now doubts the impartiality of the judge assigned to hear the case. Village Justice Stephen Smith knew Tom Murray, the defendant in the case, from their work at the Ferguson Funeral Home, where Murray is the funeral director and the judge a sometime pallbearer. At the initial hearing, Smith got permission from both the assistant district attorney and from Murray’s attorney to continue hearing the case. The only person who seems to have an issue is Randy Hagen, who videotaped Murray stealing signs before the Republican primaries. “I'm sure three-quarters of the cases that come across his desk, he knows one or the other (parties)," Murray, the defendant, said. “He's going to go based on what the evidence shows and what the lawyers argue back and forth.” -J.S.

SNEAKY MEETING (BUT NO BLOOD TO SHOW FROM IT)
The Albany Times Union has a story about the unwillingness of a murdered 14-year-old’s family members to submit DNA samples to police - after they became suspects in the case. Gretchen Perham was stabbed to death in 2005, and in 2006, the Times Union ran a story reporting that a convicted rapist, Darius Ashley, had allegedly told another inmate that he had stabbed Perham to death. (The Perhams subsequently sued the newspaper claiming that details in the story were inaccurate). In August, Gretchen Perham's mother, Kim, and her brother, Robert Linen, met with Albany police for what they thought was an update to the investigation. Instead, detectives said they wanted the family to submit DNA samples and asked questions that the family’s attorney, John Aretakis, said led him, “to believe that they're making certain members of the family suspects. . . . They started asking all kinds of questions about an argument the family had a couple days'” before the murder. “It's just an extension of the investigation, looking at everything forensically,” said police spokesman James Miller. “There's nothing to the timing of it.” -J.S.

TERRORIST, GANGBANGER. . . . IT'S ALL THE SAME IN THE BRONX
And finally, the first-ever conviction under New York’s harsh terrorism laws was handed down to a gang member yesterday in State Supreme Court in the Bronx – a move causing some to criticize Bronx DA Robert T. Johnson for misusing the statute. According to The New York Times, Edgar Morales fatally shot and killed a 10-year-old girl and wounded another man in 2002 as one of the St. James Boys, a gang formed by Mexican immigrants to protect themselves from other gangs in the borough. Johnson said the law was an appropriate use of the terrorism statute (comparing it to racketeering laws used in non-mafia-related crimes) because Morales and his gang “had terrorized Mexicans and Mexican-Americans in the west Bronx for years through violence and intimidation.” It also, noted the Times, “provided for a far more substantial sentence” – upping each crime one level, from a B-grade felony to an A, for example. One member of the jury said, “When we think of terrorism, we think of Sept. 11th, so I was skeptical at first, but when we heard the definition of terrorism — to inflict fear and to dominate — from the get-go we agreed.” The decision has prompted considerable criticism from organizations that usually don’t find themselves agreeing:  Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute, said “it’s become kind of a bait-and-switch, because lo and behold, they are not being used against Al Qaeda, they’re being used against ordinary street crime;” from the opposite end of the political spectrum, Donna Lieberman, executive director of the New York Civil Liberties Union, also criticized the terror application, saying, “No matter what horrific crimes were committed against the Mexican-American community, that’s not terrorism.” Johnson insisted that the charge was properly applied; unsurprisingly, Morales’ lawyer, Dino Lombradi, disagreed and said he will likely appeal the verdict – though he did (somewhat puzzlingly) concede that the law could possibly apply to “gangs that don’t have a money-making motive, as opposed to traditional organized crime operations.” -H.B.