Legal Aid's Chief Attorney Welcomes Initiative to Address Felony Backlog

Last week, Court Administrators announced that they will modify the merged Bronx Criminal Court procedures to separate the handling of pretrial felonies and misdemeanors to address a backlog of felonies in the merged court. In a New York Law Journal article, Steve Banks, Attorney-in-Chief of The Legal Aid Society, indicated that the modification would help persons charged with felonies because such persons are more likely to be incarcerated pending disposition of their cases.

The New York Law Journal
Bronx Merger Modified to Cope With Growing Felony Backlog
By Daniel Wise

Faced with a surge in pending felony cases, court administrators will separate the handling of pretrial felonies and misdemeanors in the merged Bronx criminal court, an experiment that began in late 2004 and withstood a legal challenge only seven months ago.

Judges assigned to trial courts will continue to preside over both felony and misdemeanor cases.

Court administrators won a ruling from the New York Court of Appeals in June confirming their power to combine the handling of misdemeanors, which carry a maximum jail term of one year, with more serious crimes classified as felonies, People v. Correa, 15 NY3d 213, (NYLJ, June 4, 2010).

But Chief Administrative Judge Ann Pfau said the change is being made to address a backlog of felonies in the merged court.

As of Jan. 2, there were 5,296 felonies pending in the Bronx court, an increase of 96 percent from the number pending in November 2004 when the newly created "Criminal Division" of the Supreme Court was put in place.

Nearly 70 percent of the pending felonies have remained unresolved longer than the six months set in the "standards and goals" issued by the Office of Court Administration.

When the operations of the Bronx court were examined by the OCA in 2009, the number of pending felonies was 72 percent above the level at the outset of the merger. The 2009 study concluded that in the face of "mixed results" for misdemeanors and felonies, the Bronx merger "has not yet proved a wholly effective solution" (NYLJ, Nov. 6, 2009).

The number of pending felonies has continued to increase despite the introduction of several measures suggested in the 2009 report: judicial hearing officers have been brought in to hear misdemeanor trials; a single criminal court judge has been added to hear night arraignments, a measure meant to avoid burdening the court's 25 acting Supreme Court justices; and a part to seek plea dispositions in the oldest cases was created. That part is presided over by the court's two top administrative judges, Justice Ephrain Alvarado and Acting Justice Eugene Oliver.

"We are not undoing the merger," Judge Pfau said, but taking "what we have learned in the merged court to make it more efficient." For instance, she said, the court could assign veteran judges skilled at working out pleas to pretrial felony parts to tackle the most difficult cases.

Steven Banks, the attorney in chief of the Legal Aid Society, said he welcomes the initiative to address felony backlogs because felony defendants are more likely to be incarcerated pending disposition of their cases than misdemeanor defendants.

Many Bronx judges were hostile to the merged court from the outset (NYLJ, Oct. 19, 2004) and the Association of Supreme Court Justices of the State of New York opposed its creation (NYLJ, Sept. 27, 2004).

To bring about the merger, 13 Criminal Court judges in the Bronx were elevated to acting Supreme Court justices so they could handle misdemeanors and felonies. Only two remained in Criminal Court where they were assigned to preside over arraignments because, by law, arraignments must be conducted in the Criminal Court.

Elected Supreme Court justices are not permitted to handle arraignments, so the responsibility for night and weekend arraignments fell on the 25 acting justices (12 of them had been appointed prior to the merger).

The 2009 OCA report found that the assignment of acting Supreme Court justices to cover night and weekend arraignments caused an "enormous drain" of trial resources amounting to about a month of trial time per year: two weeks to cover odd-hour arraignments and another two weeks to avoid disrupting trials midstream.

In all there are 41 judges assigned to the merged court. In addition to the 25 Criminal Court judges serving as acting justices, there are 16 elected Supreme Court justices and Court of Claims judges.

Of the 41 judges, 15 are assigned to calendar parts and 26 to trial parts.

Supreme Court justices are paid $136,700 a year. Criminal Court judges receive $125,600 a year.