68. Procedures when vacancies occur. 1. Whenever a vacancy will occur in the office of chief judge or associate judge of the court of appeals by expiration of term:
(a) on December thirty-first in a year fixed by the constitution for the election of the governor, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor-elect, on December first. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than January first nor later than January fifteenth thereafter; or
(b) on December thirty-first in a year fixed by the constitution for the election of members of the senate but not the governor, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor on December first. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than January first nor later than January fifteenth thereafter; or
(c) on December thirty-first in any other year, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor no later than October fifteenth. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than November fifteenth nor later than December first thereafter; or
(d) on any other date, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than eight months prior to the date such vacancy will occur. The commission shall make its recommendations to the governor no later than sixty days prior to the date of such vacancy. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than fifteen nor more than thirty days after receipt of the commission's recommendations.
2. Whenever a vacancy occurs other than by expiration of term, the clerk of the court of appeals shall immediately notify the commission of such vacancy. The commission shall make its recommendations to the governor no later than one hundred twenty days after receipt of such notice. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than fifteen days nor later than thirty days after receipt of the commission's recommendations.
3. Whenever a vacancy occurs and the senate is not in session to give its advice and consent to an appointment to fill such vacancy, the governor shall make an interim appointment from among those persons recommended to him by the commission. An interim appointment shall continue until the senate shall pass upon the governor's selection. If the senate confirms an appointment, the judge shall serve a term as provided in subdivision a of section two of article six of the constitution, commencing from the date of his interim appointment. If the senate rejects an appointment, a vacancy in the office shall occur sixty days after such rejection. If an interim appointment to the court of appeals be made from among the justices of the supreme court or the appellate divisions thereof, that appointment shall not affect the justice's existing office, nor create a vacancy in the supreme court, or the appellate division thereof, unless such appointment is confirmed by the senate and the appointee shall assume such office. If an interim appointment of chief judge of the court of appeals be made from among the associate judges, an interim appointment of associate judge shall be made in like manner; in such case, the appointment as chief judge shall not affect the existing office of associate judge, unless such appointment as chief judge is confirmed by the senate and the appointee shall assume such office.
4. (a) If the senate is in session at the time the governor makes an appointment pursuant to subdivision one or two of this section, the appointment shall be made in accordance with the provisions of section seven of the public officers law. The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor. A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment.
(b) Whenever the governor has made an interim appointment pursuant to subdivision three of this section, he shall communicate on the first day that the senate is in session following the making of the interim appointment, a written nomination to the senate in accordance with the provisions of section seven of the public officers law. The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor.
5. The failure of any officer or body to perform any act within a limitation of time established by this section shall not invalidate any appointment to the office of chief judge or associate judge of the court of appeals.
Last modified: February 3, 2019