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A dramatic increase in dissents last year at the New York Court of Appeals reveals that a tribunal long known for unanimity and collegiality is increasingly fractured. The court was split 44 times last year, compared with only 15 dissenting opinions in the prior session, according to a 2004 annual report. And a panel that voted unanimously 87 percent of the time in 2003 — and consistently close to 90 percent over the past decade — was divided in one quarter of the 185 cases it decided last year, the report shows. The three most recent appointees — Judges Robert S. Smith, Susan Phillips Read and Victoria A. Graffeo — were the most persistent dissenters, although Chief Judge Judith S. Kaye found herself in the minority an unusually high seven times. A review of last year’s decisions shows that in his first year on the court, Smith dissented more times — 16 — than the entire court did in the prior year. Read, always a regular dissenter, dissented 14 times in 2004, nearly tripling her rate of dissent in 2003. Graffeo dissented nine times. Judge George Bundy Smith, at one time the judge most likely to dissent, dissented eight times in 2004, the same as the prior session. Judge Carmen Beauchamp Ciparick, like the chief judge, dissented in seven cases. And, as if to confirm his image and reputation as the court’s swing vote, Judge Albert M. Rosenblatt dissented only four times in 2004, the lowest on the court. Additionally, the judges wrote nine concurring opinions last year, more than double the average — less than four — over the previous five years. In general, the annual statistical compilation portrays a court where judges are far more willing to speak out individually or in groups of two or three. Norman A. Olch, a Manhattan appellate attorney and chairman of the New York State Bar Association’s Committee on Courts of Appellate Jurisdiction, said the jump in dissents reflects a court divided largely along intellectual and ideological lines. He noted that the three most proficient dissenters — Judges Robert Smith, Read and Graffeo — are generally viewed as the conservative wing of the court. All three were appointed by Governor George E. Pataki, a Republican, as was Rosenblatt. The three Democrats remaining on the court, Chief Judge Kaye and Judges George Smith and Ciparick, are appointees of former Governor Mario M. Cuomo, a Democrat. “The issues that are coming up are issues important to conservatives, things like the death penalty and eminent domain that are at the cutting edge of conservative legal thinking,” said Olch, a law professor at John Jay College of Criminal Justice. “They are less willing to bury their differences and much more willing to issue a dissent. And because the more conservative wing of the court is more prepared to dissent, or at least express their views forcefully, that pushes the liberal wing to dig in. The middle, which some argue is Judge Rosenblatt, has also been pushed to the left of center.” INTELLECTUAL ACTIVITY Stewart E. Sterk, a former clerk at the court and law professor at the Cardozo School of Law, said the increase in dissension is contrary to the general trend of the tribunal over the past “couple of decades.” “I think that to some extent, it is a sign of intellectual ferment on the court,” Sterk said. “It is nice to have a lot of unanimous opinions, but I think dissents also show that the judges are thinking hard about the cases. There are a number of judges there who are unwilling to sign on to opinions that they find intellectually unsatisfying just to get unanimity. That can be a difficult thing for lawyers in predicting what the law is, but I think it is also a sign of intellectual activity on the court.” Sterk said he is not surprised to see Judges Robert Smith and Read leading the way in dissents. “Judge Robert Smith in particular, and Judge Read as well, are people of very strong views and they are very intellectually able people,” Sterk said. “So, when they see an opinion written by other judges with which they have a serious disagreement, they are less likely to say, ‘Well, let’s just go along for the sense of unanimity,’” Sterk said. All told, however, the annual report issued by Clerk Stuart M. Cohen portrays a court that remains harmonious far more often than not, that is timely and diligent, that is consistently reluctant to grant leave and that is highly receptive to motions for amicus curiae relief. It decided 185 appeals last year, well below the 250 to 300 it was deciding in the mid-1990s but on par with more recent years. Almost always, the court hands down a decision less than six weeks after argument. GRANTING LEAVE The report also shows that: � Getting to the Court of Appeals remains an uphill climb for most litigants, especially criminal defendants. Of the 901 motions for leave in civil cases, the Court denied 71.5 percent of them. In criminal cases, only about 1.7 percent of the defendants seeking leave had their wish granted, although prosecutors fared considerably better. Nine of the 48 leave motions filed by prosecutors, or about 19 percent, were granted in 2004. The judges last year entertained an average of 367 criminal leave applications each, and each granted an average of seven. � The percentage of criminal cases coming to Albany by permission of a Court of Appeals judge is way down, while the percentage of criminal cases coming to Albany by permission of an Appellate Division justice is way up. Last year, only 65 percent of the criminal appeals decided had landed on the Court’s docket by permission of a Court of Appeals judge, down from 90 percent in 2003. Simultaneously, 29 percent of the criminal calendar was attributable to a leave grant from an Appellate Division justice, up from 8 percent in 2003. � Last year, the appellate divisions issued a total of 32 orders granting leave, with the 1st Department responsible for the bulk. 1st Department justices granted leave in 23 cases, 17 civil and six criminal. � In civil cases, the court affirmed 51 percent of the time. � In criminal cases, the court affirmed in 76 percent of the appeals. � The court generally welcomes amicus briefs. Of the 93 motions filed last year for amicus curiae relief, 88 — or 95 percent — were accepted.

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