Photo Credit: Photo provided by Jonathan Zalisky.
Rabbi Hayim Schwartz, executive vice president at Rabbinical Seminary of America – Yeshiva Chofetz Chaim; Judge David Kirschner; and local resident Alan Sherman. Photo taken at a fundraiser for Kirschner at the home of David Berger on October 6.

The New York State Supreme Court is the highest trial court in the state, with 44 state Supreme Court judges in Queens County and an additional seven acting justices covering the Criminal Term and the Civil Term.

Nine candidates are running for six seats on the court in this November’s election. Only three of the six lines have opposition, including the two incumbents running for reelection.

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One candidate who is running unopposed is Judge David Kirschner, a Democrat who was cross-endorsed by the Republican Party. Kirschner, 58, was first appointed by Mayor Bill de Blasio as an Interim Civil Court Judge in June 2016, and has been serving in Criminal Court, initially in the Bronx and now in his home county of Queens, for the past three years.

A resident of Kew Gardens Hills, Kirschner is slated to become the first shomer Shabbos judge from the Central Queens area. State Supreme Court judges earn $210,900 a year and serve a 14-year term.

“When I get elected to Supreme Court I hope to be assigned to do all the post-Grand Jury cases, which are now the felonies,” Kirschner told The Jewish Press exclusively. “They are either civil or criminal. Civil handles divorces and monetary disputes over $25,000. The criminal side of Supreme Court would be felonies. If more judges are needed, the Office of Court Administration will take lower court judges and they will make them into acting Supreme Court judges.”

Kirschner says his experience as an assistant district attorney in the Bronx, a defense attorney and a civil court judge prepared him for the upcoming role.

“What I would hopefully be doing in the Supreme Court is these heavier cases, whether it’s street crime or even corruption,” Kirschner said. “A lot of the corruption cases by their definition are in Supreme Court because a lot of them are long-term investigations. The district attorney’s office goes straight to the Grand Jury before there is even an arrest and the Grand Jury returns an indictment. Someone who gets indicted by a Grand Jury might not even be arrested but all of a sudden they’re indicted. Why? Because it’s a long-term type of an investigation, usually a corruption type of an investigation. The Grand Jury returns their indictments and now they’re getting arraigned and they’re in the higher court.”

While Kirschner’s caseload in Queens Criminal Court has prepared him for his role in state Supreme Court, he feels he’s had a special guiding hand from above.

“Sometimes I’ll have a calendar with 80 to 100 cases in a day,” Kirschner said. “Some of them are quick adjournments and some of them need attention. Some of them are repeat offenders and some I have never seen before. I instinctively sense that I do a really good job of extraordinarily quickly figuring out what’s in front of me, what I need to do, what the case needs, the attention and time it needs, the direction it needs, the dynamic that it needs and then done; without overspending and without short-shrifting. This is the one thing in the world that I was made to do. I so feel Hashem’s hand every step of the way.”

 

Finding a Balance

Kirschner spoke about changing times. “Even after five years I’m still trying to find a balance,” he said. “There is an environment now that says there are certain things that people could do and say that may have not been such a problem then but it is now. We’ve recalibrated a little bit and I always have to keep that in mind.

“I have spoken with a number of different people and I’ve gotten some constructive criticism and feedback from other people about being very, very careful not to bring too much of my personality into the courtroom. By that I think what they mean is you’re always a judge 24/7 wherever you go…. So 24/7 I have to be mindful of engaging and behaving in a way that’s fit and proper for the judiciary that would give people confidence in how the judiciary should behave and conduct that is always befitting of a judge.”

Kirschner says he’s still refining his groove for the proper temperance in the courtroom especially during sentencing.

“Over the last five years I’ve found a little bit of a groove where I’m able not to take my true personality. As a person I am very magnanimous,” said Kirschner. “I am smiley and warm and engaging with a tad of sarcastic witty humor, all of which I think is appropriate to bring into the court with me but it has to remain in the judicial demeanor. When I want to get a message to somebody I can be stern. I can be a little bit sarcastic. I can be a little bit humorous. I’ve tempered it and toned it in a way that now the person actually hears the message rather than just the messenger.”

While judges cannot express their personal opinions on legislation they can objectively explain the pros and cons of the legislation. One of the issues Kirschner addressed is about the Bail Elimination Act, which passed in 2019 and was amended in 2020 after the New York Police Department reported a spike in crime and blamed the law.

“The idea was to make setting bail equitable,” Kirschner explained. “What state lawmakers did, however, was they ended up agreeing to allow non-violent felonies and misdemeanors to get no bail. Violent felonies, the judge can set bail. There are exceptions. There are some misdemeanors where you can still set bail on such as violating an order of protection. Some non-violent offenses such as bail jumping, you can have bail set.”

Kirschner says he sometimes sees felons multiple times in his court due to bail not being set, but the difference between pre-bail reform and post-bail reform is that the judge is not permitted to set bail.

Many judges have complained about their loss of judicial discretion and having their hands tied by this law.

“I don’t see this as a loss of judicial discretion because my presumptive approach is always, I’m not setting bail unless and until I am compelled that it is the absolute necessity as the statute now says the least restrictive means necessary to reasonably assure their return to court,” Kirschner said. “That was something they put into the statute when the lawmakers reformed the law. I don’t believe the legislature was intending to tie the hands of the judges. I believe they were intending to send a message that as a matter of equity, if you were to do one thing here and the same thing in the other case where one stays and the other one doesn’t and it’s purely a matter of equity, that’s what we have to address.”

Kirschner says he is neither a conservative nor a liberal judge.

“My general nature is that I am going to apply the law the way I think, not the way the precedent says but the way it was really intended for in the case before me, consistent with the precedent,” he said. “I’m trying to be fair but also generous, only employing the most extraordinary of tools in the most extraordinary of circumstances. Just because they [these tools] exist and just because I have discretion doesn’t mean they are there for the taking indiscriminately. It also doesn’t mean it should never be used.”

Kirschner likes to demonstrate how he is a compassionate judge.

“We are all Hashem’s creatures,” Kirschner asserts. “I know we all live in a world where we’re in our own microcosm because we are in this world and we have our connection with the [Hashem] and our community. We go about our business. We sometimes lose sight of the fact that in this world we are all Hashem’s creations. The defendant is still a human being and no matter what they may or may not have done the impact to them and their family as well as the victims can be life-altering. If we can do something to help rehabilitate them and put them on a better path we will have done a good service to them and everyone around them.”

In his spare time, Kirschner also coaches high school mock trials at Lawrence, (Nassau County) NY-based HAFTR (Hebrew Academy of the Five Towns & Rockaway).

Kirschner, who is married with two adult boys, one is married, attends Congregation Ahavas Yisroel in Kew Gardens Hills. He assumed the post as president of the congregation for the next two years.

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Marc Gronich is news director of Statewide News Service. He also operates the website JBizTechValley.com. He has been covering government and politics since 1981. His Albany Beat column appears monthly in The Jewish Press.
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