Giving Everyone Their Day In Court
THURSDAY, APRIL 28, 2011
Andrew Fine

Soon after Chief Judge Jonathan Lippman was confirmed in February, 2009, he stated that the court needed to look at its traditionally low acceptance rate for criminal cases. The recently released annual report of the Court of Appeals shows a dramatic increase in the number of criminal appeals accepted by New York's highest court.

"You can't deny the cause and effect relationship between the chief judge's statements and immediately thereafter the change that resulted after that," Andrew Fine, director of Court of Appeals litigation for the Society's Criminal Appeals Bureau, told The New York Law Journal. "It's clearly having an impact and it's a very nice and very welcome development," he said.

The New York Law Journal
Court of Appeals Reports Higher Caseload, More Criminal Leaves Granted in 2010
By Andrew Kershner
April 25, 2011

There was what Chief Judge Jonathan Lippman characterized as a "very dramatic increase" last year in the number of criminal appeals accepted by New York's top court.

According to the just-released annual report of the Court of Appeals, judges granted 4.9 percent of the leave requests they received in criminal cases in 2010, up from 3.4 percent in 2009 and only 2 percent in 2008.

2010 was Judge Lippman's first full calendar year running the Court. Shortly after he was confirmed in February 2009, he said that the Court needed "to take a step back and look" at its traditionally low acceptance rate for criminal cases (NYLJ, April 22, 2009).

"It's not necessarily about who wins or loses the case, but the perception and the reality that everybody gets their day in court," Judge Lippman said in an interview last week. He called the nearly 5 percent acceptance rate a "very healthy number" that "should dispel any idea that defendants are not having their day in court."

The Court reported that leave applications in criminal cases declined last year to 2,200 from 2,380 the previous year. But the number of cases taken by the court increased to 108 from 81.

In the 1980s and early 1990s, the Court's acceptance rate for criminal leave applications was more than 3 percent. In the mid-1990s, however, the acceptance rate dipped, going no higher than 2.1 percent until the recent rise.

The 2010 annual report of the Court also shows:

  • The Court's overall caseload is rising and more judges are writing dissenting and concurring opinions. The Court decided 236 appeals last year, 137 civil and 99 criminal. Of those, 159 were unanimous rulings, with judges writing a total of 74 dissents and 18 concurrences. In 2009, the Court ruled on 212 appeals, 146 civil and 66 criminal cases. That year there were 161 unanimous decisions, 45 dissenting opinions and 16 concurrences.
  • On the civil side, 63 leaves to appeal were granted in 2010 out of 1,045 motions for leave to appeal. In 2009, the number of civil leaves to appeal granted were 77 out of 1,070. That figure does not include cases that the Court is, by law, obliged to take.
  • The Court's average turnaround time increased last year to 33 days between argument or submission and disposition from 29 in 2009.
  • The judges reversed in 32 percent of the criminal cases they heard in 2010, a five-year high. In prior years, the rate fluctuated, climbing to 30 percent in 2007 and dipping to 7 percent in 2008.

As for whether the rulings display a pro-prosecution or pro-defendant bent, Judge Lippman said, "From our perspective, we can't let ourselves fall into that trap. Each case is unique."

"It's for others to say we're more this, that or the other," he added.

But defense attorneys have welcomed the Court's increasing willingness to hear their arguments.

Alfred O'Connor, an attorney with the New York State Defenders Association, said, "For many years, the perception in the criminal bar was that meritorious leave applications were being denied. It appears now, that, I think there was a recognition that the Court was hearing too few."

While Judge Lippman credits the increase in the Court's criminal caseload to "the good work of our judges," others attribute the change to his influence.

"You can't deny the cause and effect relationship between the chief judge's statements and immediately thereafter the change that resulted after that," said Andrew Fine, director of Court of Appeals litigation for Legal Aid Society's criminal appeals bureau.

"It's clearly having an impact and it's a very nice and very welcome development," he said.

Last year, Judge Eugene F. Pigott Jr. had the highest acceptance rate with 6.8 percent. Judge Susan Phillips Read had the lowest acceptance rate with 3.3 percent. Judge Lippman's 2010 acceptance rate was 5 percent.

Court statistics from 2009 show Judge Lippman had the highest acceptance rate at 7.1 percent while Theodore T. Jones had the lowest, at 2.1 percent.

While Legal Aid is obliged to exhaust state appeals for its clients, Mr. Fine said he sensed attorneys in his agency now are sending more substantive follow-up letters to the judges considering their appeals.

"That kind of supporting letter now might be able to make a difference," he said.

Mr. Fine said the Court was "moderate," in its criminal decisions, generally siding with prosecutors more than with defense. Rather than making new law, he said that it was more interested in "refining" the law. This is was not a Court seeking to upset convictions, he said.

Franklin County District Attorney Derek Champagne, president of the District Attorneys Association of the State of New York, also said he has not seen any shift in the way the Court decides cases.

"I don't think, from what I've seen, there's any particular feeling that the prosecution or defense is being singled out," he said. "We haven't seen great expansion or great change in current case law."

But with more criminal cases being heard, he said district attorneys in some counties were seeing a heavier workload.

Mr. Champagne noted that statewide, with county budgets being stretched, handling more appeals could be a challenge, especially in smaller counties.

Mr. Champagne said he had to set aside one of his five assistant district attorneys to prepare for a 2008 case before the Court. "It pretty much put our office on hold," he said.

Paul Shechtman, of Stillman, Friedman & Shechtman, said every defense attorney welcomed the news of increased review of cases, which could mean another chance for their own cases.

"The harder question is, institutionally and for the development of the law, is expanding the net bringing the Court cases that are truly worth the Court's time? And I think it's too early to make that judgment. And presumably at some point, the Court will make it itself," he said.

"There are some times where less is more and picking few cases and having more time to deal with them may be better for the development of the criminal law. But the Court made the decision now to widen the net and it will decide in due course whether it thinks that's the best course," he said.

Comfortable With Dissents

Judge Lippman noted that there have been more divided courts under his leadership, as compared to that of his predecessor, former Chief Judge Judith S. Kaye. "Sometimes the law is better served by having the disagreements over the law reflected in the decision," he said, noting the openness to dissent was his own personal preference and not better than the aim for unanimity.

"The trend away from unanimous opinions that began in the later years of Chief Judge Kaye's term has continued into Chief Judge Lippman's term. The result is more robust discussion of broader issues, which in my view is beneficial to the lowers courts and the bar," said Mary Elizabeth McGarry of Simpson Thacher & Bartlett.

According to court statistics, the frequency of unanimity was almost 84 percent in 2007. In 2010, that rate dropped to 67 percent.

Dissenting opinions can help attorneys to understand a judge's legal philosophy, which can be helpful when crafting an appeal, said Mr. Fine.