Bronx Court Merger Unconstitutional, Appellate Court Rules
FRIDAY, FEBRUARY 26, 2010

In one of The Legal Aid Society's individual cases, the Appellate Division, First Department ruled on Tuesday that the 2004 merger of the Bronx Criminal Court and Supreme Court is unconstitutional. The question of the validity of the merger was raised sua sponte by the First Department after the completion of argument in the case.

"As part of our zealous defense of our individual client, we briefed the question of whether the merged court which convicted him had jurisdiction to do so," Steven Banks, Attorney-in-Chief, said in a statement to the New York Law Journal and The New York Times. "The First Department agreed that the court lacked jurisdiction. On behalf of our client, we are gratified that the court reversed his conviction." Harold Ferguson of the Society's Criminal Appeals Bureau wrote the brief and argued the appeal. Sheilah Fernandez and Elizabeth B. Emmons of the Appeals Bureau also worked on this case and a related case.

Under the merger, the New York City Criminal Court in the Bronx, which had handled only misdemeanors, was combined with the Criminal Term of the Supreme Court, which had handled only felonies, into a newly created Criminal Division of the Supreme Court, Bronx County. The First Department noted that the practice commentary in the Criminal Procedure Law (CPL) states that CPL §210.05 "bars prosecution of those offenses in a superior court where they are charged in an accusatory instrument other than an indictment or superior court information."

Read The New York Times article.


The New York Law Journal
Administrators Lack Authority to Merge Bronx Courts, Panel Finds
By Daniel Wise
February 24, 2010

The 2004 merger of the criminal courts in the Bronx into a single court with jurisdiction to handle both felonies and misdemeanors is unconstitutional, a divided panel of the Appellate Division, First Department, ruled yesterday.

Starting this morning, in the absence of a stay, misdemeanor cases will once again only be assigned to judges who have been appointed to the Criminal Court, said Administrative Judge Ephrain Alvarado (See Profile), who is in charge of criminal matters in the Bronx. The judges will continue to sit in hybrid parts, with misdemeanors being heard as Criminal Court cases and felonies as Supreme Court matters.

In upsetting the 2004 merger, a four-judge majority in an unsigned opinion concluded in People v. Correa, 51080C/05, that then-Chief Judge Judith S. Kaye and then-Chief Administrative Judge Jonathan Lippman, who has since succeeded Judge Kaye as chief judge, "overstepped the bounds of administrative and operational authority they possess under the state Constitution."

In dissent, Justice Rolando T. Acosta (See Profile) warned that the majority's "unbridled judicial activism effectively upends tens of thousands of misdemeanor convictions in Bronx County over the past five years."

Contrary to the majority's conclusion, Justice Acosta wrote, the Legislature, "cognizant of the great wisdom inherent in the separation of powers doctrine," has delegated to the chief judge the authority to implement the merger.

He also warned that the majority ruling could undermine "the legal basis" for specialty courts such as the "long-established Integrated Domestic Violence Courts" where Supreme Court justices "routinely" exercise jurisdiction over non-indicted misdemeanors.

A unanimous panel, in a second unsigned opinion, People v. Mack, 19145C, also found the Bronx merger unconstitutional based on the majority opinion in Correa.

The First Department decisions will appear in the print edition of tomorrow's Law Journal.

Bronx District Attorney Robert T. Johnson issued a statement yesterday calling the timing of the decision "bizarre and irresponsible" because the issue is already pending before the Court of Appeals in People v. Wilson, 59 AD3d 153 (2009), lv. granted 12 NY3d 790. Mr. Johnson said his office would seek leave to appeal the two rulings handed down yesterday by the First Department.

John W. McConnell, the Office of Court Administration's counsel, said in an interview that OCA will either seek leave to intervene or file an amicus brief.

Because there was overlap in the membership of the two panels, a total of six judges concluded that the merger was unconstitutional and also violates the Judiciary Law.

Justices Richard T. Andrias (See Profile) and Leland G. DeGrasse (See Profile) were in the majority in both cases. The remaining judges joining the majority in Correa were Justices Eugene Nardelli (See Profile) and James M. Catterson (See Profile).

Rounding out the four-judge panel in the unanimous Mack decisionwere Justices John W. Sweeny Jr. (See Profile) and James M. McGuire (See Profile).

Under the merger, the New York City Criminal Court in the Bronx, which had handled only misdemeanors, was combined with the Criminal Term of the Supreme Court, which had handled only felonies, into a newly created Criminal Division of the Supreme Court, Bronx County (NYLJ, Nov. 9, 2004).

The pilot project ran into opposition from the start. The Association of Supreme Court Justices of the State of New York, joined by the Association of Court of Claims Judges, opposed it. Many of the 48 judges assigned to the about-to-be-merged court sharply questioned Office of Court Administration officials in an hour-long session about the legality of the experiment in 2004 (NYLJ, Oct. 29, 2004).

Court administrators said the merged court, with the added firepower of 10 Criminal Court judges who had been promoted to acting Supreme Court justices, was needed to reduce backlogs of both felony and misdemeanor cases.

The combined court succeeded in holding the number of pending misdemeanor cases steady despite a 35 percent rise in misdemeanor filings between 2004 and 2009. But the growth in the number of pending felonies during that period has outpaced new filings, 72 percent to 10 percent.

In a recently released official evaluation of the merger, court officials found that "five years on, the Bronx merger has not yet proved to be a wholly effective solution" (NYLJ, Nov. 6, 2009). In the report, court officials pledged to augment the number of judges assigned to the merged court, which had dipped to 41, and to take other administrative measures to clear the felony backlog.

Majority's Analysis

The majority relies upon a provision of the state Constitution, Article VI, §30 which reserves to the Legislature the power to "delegate" to the courts its authority "to regulate practice and procedure in the courts."

Given that limitation, the majority wrote, court officials lacked that authority to establish a single court in the Bronx to hear all criminal cases, a move that "eviscerates the Bronx Criminal Court by depriving it of its jurisdiction over Class A misdemeanors, and effectively restructures the constitutionally created Unified Court System."

Moreover, the majority wrote, the wholesale transfer of all misdemeanor cases to Supreme Court is at odds with state Constitution Article VI, §15(c) which vests the Criminal Court with jurisdiction over all crimes other than those prosecuted by indictment.

The majority noted that the practice commentary in the Criminal Procedure Law (CPL) states that CPL §210.05, which implements the constitutional provision, "bars prosecution of those offenses in a superior court where they are charged in an accusatory instrument other than an indictment or superior court information."

Dissent Backs Jurisdiction

In dissent, Justice Acosta wrote that the Supreme Court has possessed jurisdiction over misdemeanors since it was created more than 300 years ago.

Nor, he wrote, was that jurisdiction curtailed by CPL §210.05, which is not directed at the court's jurisdiction to hear non-indicted misdemeanors, but instead requires prosecutors to invoke the Supreme Court's criminal jurisdiction through the filing of an indictment. The aim, he noted, was to prevent "prosecutorial excesses," not to limit the Supreme Court's jurisdiction.

Justice Acosta disputed the majority's assertion that creation of the single Bronx court "collapsed" the Criminal Court's jurisdiction.

Arraignments in the Bronx continue to be held Criminal Court, he wrote, citing statistics from the Annual Report of the New York City Criminal Court showing that 57,588 misdemeanor defendants were arraigned in Criminal Court in 2008 and many of them were disposed by a plea taken during the Criminal Court arraignment.

Combined, during 2008, a total of 76,923 misdemeanor and felonies arraignments were held in the Bronx Criminal Court and nearly 50 percent of them were resolved at that initial court appearance. Justice Acosta also noted that the majority decision "by usurping authority given to the Legislature and Chief Judge" will wreak "havoc not only in Bronx County but numerous courtrooms across the state. "

Richard E. Mischel, an appeals specialist at Mischel & Horn who is not involved in the case, cautioned against leaping too quickly to doomsday scenarios.

"Frequently, dire predictions are made about the impact of decisions which bring sea changes to the law," he said. "But history teaches that they rarely come true because the courts find innovative ways to overcome" the most serious consequences.

The defendants in the two appeals decided yesterday were represented by Harold Ferguson, Sheilah Fernandez and Elizabeth B. Emmons, all of the Legal Aid Society.

The question of the validity of the merger was raised sua sponte by the court after the completion of argument, according to the opinions in Correa.

Steven Banks, attorney-in-chief of The Legal Aid Society, which brought the case, said yesterday, "As part of our zealous defense of our individual client, we briefed the question of whether the merged court which convicted him had jurisdiction to do so. The First Department agreed that the court lacked jurisdiction. On behalf of our client, we are gratified that the court reversed his conviction." The appeal was argued by Harold Ferguson of Legal Aid's criminal appeals bureau.

Robin Steinberg, the executive director of the Bronx Defenders was critical of the court's decision.

"The merger was an innovation that provided more access to justice for people in the Bronx by better balancing judicial resources in the courthouse," she said. The decision failed to make a "single mention of how dismantling the Bronx merger will effect thousands of people charged with misdemeanors," she said.

Assistant Bronx District Attorney Justin J. Braun handled the appeal in Correa for the prosecution, and Assistant District Attorney Kayonia L. Whetstone handled Mack.