Eugene M. Fahey

Eugene M. Fahey (born September 1, 1951) is an American judge who has served as an Associate Judge of the New York Court of Appeals since 2015.[2][3]

Eugene M. Fahey
Associate Judge of the New York Court of Appeals
Incumbent
Assumed office February 9, 2015
Appointed by	Andrew Cuomo
Preceded by	Robert S. Smith
Personal details
Born	(1951-09-01) September 1, 1951 Buffalo, New York, U.S.
Political party	Democratic
Education	University at Buffalo (BA, JD, M.A.) [1]

Born in Buffalo, New York, Fahey attended St. Joseph's Collegiate Institute in the Town of Tonawanda, and received a Bachelor of Arts (cum laude) from State University of New York at Buffalo in 1974, and was elected to the Buffalo Common Council, serving from 1978 to 1983. He received a Juris Doctor from SUNY Buffalo Law School in 1984,[3] and was then a law clerk to New York Court of Claims Judge Edgar C. NeMoyer before entering private practice in 1985.[3] Fahey again served on the Buffalo Common Council from 1988 to 1994, and ran for Mayor of Buffalo in 1993, but was defeated in the Democratic primary by nearly a two-to-one margin by Anthony Masiello.[4] Fahey remained in the race as the Conservative Party candidate, but did not actively campaign, and received only a small proportion of the vote in the general election, also won by Masiello.[4]

Early Stage Judicial Career

By that point, Fahey was recognized as “an exceptional elected official and politician.”^[3]  He soon evolved “into an excellent judge.”^[4]  Fahey was elected to Buffalo City Court in 1994, where he served for two years before winning election to New York State’s highest trial court, the New York State Supreme Court, in 1996.  There, he handled both civil and criminal matters of high profile.  

Notable moments in Justice Fahey’s career as a state trial judge include his 2000 ruling that an environmental study conducted with respect to a proposed twin-span Peace Bridge linking Buffalo with Fort Erie, Canada was fatally flawed (see Buffalo & Fort Erie Pub. Bridge Auth. v City of Buffalo, 182 Misc 2d 159 [Sup Ct, Erie County 1999]), as well as his 2002 arraignment of James Kopp, a member of a militant anti-abortion group who was charged with (and later convicted of) the sniper-style murder of a local physician who performed such procedures.  Justice Fahey also presided over a case in which a Lancaster man who lost three limbs in an explosion caused by the rupture of a liquid nitrogen tank obtained a $25 million settlement.^[5]  He also served for two years as the judge of the Commercial Division for the Eighth Judicial District.

Intermediate Stage Judicial Career

Governor George Pataki appointed Justice Fahey to the Appellate Division, Fourth Department in December 2006.  Justice Fahey served at that intermediate appellate court for over eight years, where he wrote significant options with respect to

• the statutory scheme guaranteeing marriage equality in New York State (New Yorkers for Constitutional Freedoms v New York State Senate, 98 AD3d 285 [4th Dept 2012], lv denied 19 NY3d 814 [2012]);

• the taking of deposition testimony of foreign witnesses using video technology (Gabriel v Johnston’s L.P. Gas Serv., Inc., 98 AD3d 168 [4th Dept 2012], amended on rearg 104 AD3d 1262 [4th Dept 2013]);

• the availability of medical assistance benefits for persons who transferred assets for less than fair market value during the Medicaid “look-back” period prescribed in the Social Services Law (Matter of Barbato v New York State Dept. of Health, 65 AD3d 821 [4th Dept 2009], lv denied 13 NY3d 712 [2009]);

• prosecutorial misconduct arising from the mischaracterization of DNA evidence (People v Wright, 115 AD3d 1257 [4th Dept 2014] [dissent], revd 25 NY3d 769 [2015]);

• the degree of judicial scrutiny that should be applied to the issue whether a defendant may be required to wear a stun belt at trial (People v Buchanan, 53 AD3d 46 [4th Dept 2008] [dissent], revd 13 NY3d 1 [2009]);

• the intersection of law, technology, and disclosure obligations arising under the Freedom of Information Law (Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314 [4th Dept 2010]); and

• the entitlement of sex offender-respondents to effective assistance of counsel in civil confinement proceedings (Matter of State of New York v Campany, 77 AD3d 92 [4th Dept 2010], lv denied 15 NY3d 713 [2010]).

High Court Stage of Judicial Career

In January 2015, Justice Fahey was nominated to the New York State Court of Appeals by Governor Andrew M. Cuomo.^[6]   That nomination was unanimously confirmed by the New York State Senate on February 9, 2015.^[7]

Significant Writings

Civil Law

Judge Fahey’s body of work at the Court of Appeals is significant.  His opinions in the civil realm have touched matters involving

• the attachment of third-party liability to a medical provider that administers drugs to a patient and then releases her, in an impaired state, without any warning that the drugs affected or could have affected her ability to safely operate a motor vehicle (Davis v South Nassau Communities Hosp., 26 NY3d 563 [2015]);

• civil liability and long-arm jurisdiction over out-of-state gun merchants who place firearms in the stream of commerce knowing that such weapons will be resold for nefarious purposes in this state (Williams v Beemiller, Inc., 33 NY3d 523 [2019] [dissent]);

• differential cash/credit pricing (Expressions Hair Design v Schneiderman, 32 NY3d 382 [2018]);

• the interplay between the freedom to contract and New York public policy with respect to the shifting of commencement of the running of the statute of limitations (Deutsche Bank Natl. v Flagstar Capital Mkts., 32 NY3d 139 [2018]);

• bedrock rules of the interpretation of insurance contracts (Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d 675 [2017]; Burlington Ins. Co. v NYC Transit Auth., 29 NY3d 313 [2017] [dissent]); and

• and technical requirements applicable to the certification of class actions (Desrosiers v Perry Ellis Menswear, 30 NY3d 488 [2017]).

Criminal Law

In the criminal realm, Judge Fahey’s work involved issues with respect to

• the criminalization of reproduction of electronic material (People v Aleynikov, 31 NY3d 383 [2018]);

• the time at which a lengthy pre-plea delay violates a defendant’s constitutional right to a speedy trial (People v Wiggins, 31 NY3d 1 [2018]); and

• and the responsibility of a trial court to provide meaningful notice to counsel of a jury note (People v Mack, 27 NY3d 534 [2016]).  

It has also explored questions regarding

• whether vicarious consent may be provided on behalf of a minor child to support the mechanical eavesdropping upon a conversation (People v Badalamenti, 27 NY3d 423 [2016]);

• the “born alive” rule, as it appeared in the New York Penal Law (People v Jorgensen, 26 NY3d 85 [2015] [dissent]); and

• the admissibility of evidence of third-party culpability (People v DiPippo, 27 NY3d 127 [2016] [dissent]).  

Evolving Areas of Jurisprudence

Judge Fahey’s significant writings also considered areas of evolving jurisprudence.  His decision making has moved areas of law including

• the admissibility at trial of DNA evidence derived from cutting edge, but proprietary, analytic technology (People v Cadman Williams, 35 NY3d 24 [2020]);

• animal rights (Matter of Nonhuman Rights Project, Inc. v Lavery, 31 NY3d 1054 [2018] [concurrence]);

• personal likeness rights (Lohan v Take-Two Interactive Software, Inc., 31 NY3d 111 [2018]);

• the jury instruction to be given on cross-race effect where an identification of the defendant in a criminal trial is made by a person of a different race (People v Boone, 30 NY3d 521 [2017]);

• physician-assisted suicide (Myers v Schneiderman, 30 NY3d 1 [2017] [concurrence]); and

• the rights accorded to creators of sound recordings with respect to such recordings (Flo & Eddie v Sirius XM Radio, Inc., 28 NY3d 583 [2016] [concurrence]).  

Landmark Writings

Some of Judge Fahey’s writings also have been landmark opinions.  

New Yorkers for Constitutional Freedoms v New York State Senate (98 AD3d 285 [4th Dept 2012], lv denied 19 NY3d 814 [2012]) confirmed the legality of the Marriage Equality Act, which recognized, for the first time, the right of same-sex couples to marry in New York State.  The plaintiffs, who challenged the validity of that legislation, contended, in principal part, that the Marriage Equality Act resulted from what amounted to a private debate among the Republican members of the New York State Senate that should have been held publicly.  Justice Fahey rejected that challenge, relying on the caucus exemption to New York State’s Public Officers Law.  

The relevant part of the Public Officers Law, known as the Open Meetings Law, generally prevents public bodies from debating and deciding in private matters that they are required to debate and decide in public, namely, deliberations and decisions that go into the making of public policy.  Justice Fahey, however, ruled that caucus exemption to the Open Meetings Law applied to the passage of the Marriage Equality Act.  That exemption permits the private deliberation of lawmakers who are members or adherents of the same political party.  The application of that exception confirmed passage of the Marriage Equality Act.

People v Cadman Williams (35 NY3d 24 [2020]) confirmed that a Frye hearing must be held with respect to the admissibility of DNA evidence derived from cutting edge, but proprietary, analytic technology.  That case arose from a 2008 incident in which the defendant fired four gunshots during a fight in the Bronx. Two of the bullets struct the victim, who subsequently died as a result of injuries sustained in the shooting.  The defendant was arrested several months later, and the gun in question eventually was examined for DNA evidence by the police.  That examination and subsequent “standard” DNA testing revealed that there was a mixture of DNA from at least two unknown contributors on the firearm.

An additional, more sensitive form of DNA analysis—Low Copy Number (LCN) testing—conducted with the aid of the proprietary Forensic Statistical Tool (FST), however, generated different results.  That more sensitive testing yielded the conclusion that it was millions of times more likely that the DNA mixture found on the gun contained contributions from the defendant and one unknown, unrelated person, rather than from two unknown, unrelated people.  

The defendant was charged with a homicide crime and criminal possession of a weapon in the second degree, and he challenged the admissibility of the subject DNA evidence on the ground that it the testing method had not gained general acceptance in the relevant scientific community.  The motion court refused to hold an inquiry—known as a Frye hearing—with respect to that request,  and the evidence was admitted a trial that resulted in the defendant’s conviction.

The appellate process took the case to the Court of Appeals, where, in an opinion by Judge Fahey, it was determined that the error in admitting the evidence was harmless.  Similar issues with respect to similar testing methods, however, may arise in future cases, and there lies Williams’s importance.  The Court held that the motion court abused its discretion as a matter of law in admitting that proof without holding a Frye hearing.  In doing so, this Court reasoned that the People had not met their burden of establishing the general acceptance of the LCN methodology by the relevant scientific community, and that the FST tool—the particulars of which were not readily available—similarly had not been generally accepted within the relevant scientific community.  Williams requires that defendants cannot be convicted on the basis of DNA evidence derived from “black box” technology not subject to review and general acceptance by the relevant scientific community at large.

Williams v Beemiller, Inc. (33 NY3d 523 [2019] [dissent]) The dissent argued that New York State courts may exercise long arm jurisdiction over out-of-state gun merchants who place firearms in the stream of commerce knowing that such weapons will be resold for illegal purposes in this state.  That case arose from a 2003 incident in which the plaintiff was shot in the stomach in a case of mistaken identity while he played basketball in front of a neighbor’s house in Buffalo.  The shooting derailed a promising career; the plaintiff would barely walk when he was released from hospitalization, and his dreams of playing Division I basketball and earning a scholarship based on that skill were dashed.

The gun used in the shooting was manufactured by defendant Beemiller, Inc., sold to a gun distributer, and then resold to merchant Great Lakes Products, which was owned and operated by defendant Charles Brown.  For his part, Brown sold that gun and 180 other weapons in a bulk transaction to a black market gun dealer at an Ohio gun show in 20000.  All of those guns were transported to and sold illegally in Buffalo, and all of those weapons were inexpensive, low-quality “junk guns”—or “Saturday Night Specials”—practically purposed only to cause harm to human beings.

The plaintiff commenced an action against defendants including Brown seeking damages for personal injuries sustained in the shooting.  Although a significant part of defendant Brown’s sales were derived from the bulk sale in question, New York courts refused to assert personal jurisdiction over defendant Brown (sometimes, in this context, referred to long-arm jurisdiction, to bring an out-of-state domiciliary before a New York State Court), reasoning that he did not have the “minimum contacts” required to be subject to the jurisdiction of this state.

Judge Fahey dissented arguing that the volume of defendant Brown’s sales to New York black market distributors whom defendant Brown knew would remarket those weapons in New York was contact with New York State sufficient to support long-arm jurisdiction, Judge Fahey would have allowed the lawsuit against defendant Brown to proceed.

More specifically, where, as in that case, the defendant deals in an inherently dangerous product in transactions that occur on the fringes of legality, Judge Fahey concluded that courts should be more receptive to long-arm jurisdiction.  That conclusion perhaps set the stage for legislative intervention, or for a different court in a different case to conclude that a defendant who traffics handguns “should expect to be held accountable on a lesser showing than one who sells something as harmless as rubber bands.”

People v Otis Boone (30 NY3d 521 [2017]) arose from a February 2011 incident in which a white man in his 20s was walking in Brooklyn when he was approached by a stranger, a short-haired black man. The stranger asked to know the time, and the young man retrieved his cell phone. The stranger snatched the cell phone and fled. The victim gave chase, until the robber pulled out a knife and told him to stay where he was. The victim described his attacker as an African-American man, about six feet tall, weighing about 170 pounds, and wearing a baseball cap and a hooded sweatshirt.

Ten days later, a white teenager was walking in the same neighborhood of Brooklyn, sending a text message from his cell phone, when a man behind him asked the time. The teenager looked back over his shoulder and observed a stranger, a black man, wearing a winter coat and a hat with flaps that covered his ears and the top of his head. The teenager looked at his cell phone and told the stranger the time. The stranger then grabbed the phone. The teenager did not immediately let go, and the robber stabbed him. The robber then took the phone and fled. Before the victim was taken to the hospital, he described the perpetrator to the police as an African-American man, about 18 years old and approximately six feet, two inches tall, and he gave an estimated weight.

The defendant (Otis Boone), a black man who was short-haired, 19 years old, and 6 feet tall, and weighed about 170 pounds, was suspected of committing the crimes. On March 14, 2011, the defendant was placed in two six-person lineups and the victims separately identified him. The teenager was initially unsure whether the defendant was his attacker, but identified him after he spoke the words “What time is it?” The defendant and the fillers in the lineups all wore hats.

Neither cell phone was recovered, and no physical evidence linked the defendant to the crimes.  Still, based on the “strength” of the eyewitness identifications, the defendant was charged with and eventually convicted of, among other things, two counts of robbery in the first degree.  

Those convictions were rendered after the trial court rejected the defendant’s request that the jury be given an instruction on cross-racial identification.  Writing for the Court of Appeals, Judge Fahey determined that was error.  Noting that mistaken eyewitness identifications are the single greatest cause of wrongful convictions in this country, and that studies have found that the likelihood of misidentification is higher when an identification is cross-racial, Judge Fahey found a need for a trial court to caution a jury about the potential fallibility of an identification of a defendant by a person of a different race when the defendant asks for such an instruction.  

The Court also prescribed an instruction to be given by a trial court in such circumstances.  Specifically, a trial court should tell the jury that (1) it should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.

Personal

Fahey is married to Colleen Maroney-Fahey, and they live in Buffalo, New York.  They are the proud parents of Ann B.D. Fahey. ^[8]