With Lt. Gov. Brian Benjamin out, who will be Hochul's running mate?

Lieutenant Governor Brian Benjamin was arrested on Tuesday and is now facing a 5 count federal indictment on charges of bribery and fraud.

It wasn’t long after he appeared in court, that he announced his resignation.

Lawyers for Benjamin insist that he is innocent, but Governor Kathy Hochul says she was taken by surprise and had no idea that Benjamin was being investigated.

"But it was clear to both of us that he could not continue to serve as Lieutenant Governor," Hochul said on WNYC radio. "And I want New Yorkers to have complete confidence in their government and let them know that I'm going to keep delivering for them and I'm going to find a real partner who will continue to do the same as well."

Prosecutors do allege that Benjamin lied on the forms he submitted while under consideration for Lieutenant Governor.

However, media reports from January 2021, 7 months before Hochul appointed Benjamin to the position, showed that Benjamin was facing scrutiny about campaign donations he had received even back then.

Lieutenant Governor Candidate Diana Reyna says Hochul’s vetting process showed a lack of experience.

Get breaking news alerts in the free FOX5NY News app!  |  Sign up for FOX 5 email newsletters

"Kathy Hochul got herself into this mess and she has to now figure out how to get herself out of it," Reyna said. "It’s important to share, our campaign remains focused."

But Reyna, who was chosen by gubernatorial candidate Congressman Tom Suozzi, could very well end up Hochul’s running mate if Suozzi were to lose.

At this point, it is too late to remove Benjamin’s name off the ballot for the primary or add someone new.

The only way to get a name off the ballot now is if the person dies, moves out of the state or is nominated for another office.

Since the Governor and Lieutenant Governor run separately in the primary, it is very likely that Hochul could end up with one of her opponents’ picks for Lieutenant Governor.

The other Democratic lieutenant governor candidate in the race, Ana Maria Archila, says she also wants to first focus on the primary, but does not rule out a Hochul ticket if her unofficial running mate Jumaane Williams were to lose.

"I will work with whoever wins the governor's primary to make sure that we are helping New Yorkers have better lives, that we are focusing on the right things and really delivering for people who desperately need it," Archila says.

But Benjamin’s arrest and resignation highlights one loophole in the constitution.

The Lieutenant Governor has been always seen as one of those ceremonial positions, often overlooked and mentioned only in passing in the state’s constitution.

Yet as seen repeatedly, and just recently with Governor Kathy Hochul, there are times that the Lieutenant Governor has to fill the Governor’s seat.

Yet, when there is a vacancy like this, the Governor does not need an election or a confirmation hearing to appoint whoever she wants.

Christopher Bopst, an attorney with Wilder and Linneball, LLP and the author of several books on the New York State Constitution, says this type of loophole could cause problems down the road if an appointee were to become governor.

"If Brian Benjamin, or any Lieutenant Governor, are appointed by an existing governor were to go on to become governor, that person would face questions about their legitimacy, because they would never have been approved by anybody other than the governor appointing them," Bopst said. "And I'm curious to see whether now, in light of the fact that we have the second vacancy in the Office of Lieutenant Governor in seven months, eight months, whether that will reinvigorate the debate as to what we need to do to close that up."

In the meantime, don’t worry New York is not without a Lieutenant Governor.

Senate Majority Leader Andrea Stewart Cousins temporarily holds this position