The 2017-2018 term of the New York Court of Appeals in criminal law was different from others in recent years. First, the court decided only 58 cases, down from an average of 93 in the past five years. Second, 30 decisions—more than half—were decided by memorandum opinion; no judge signed his or her name to the decision. Third, the court was often divided. Judge Jenny Rivera dissented in 12 of the 58 cases, and Judge Rowan Wilson in 11, often together. In each case, they wrote on the side of the defendant. And Judge Michael Garcia dissented eight times on the side of the prosecution. There is much for a reviewer to discuss.

Cross-Racial Identification: ‘Boone’

Perhaps the term’s most significant case was People v. Boone, (30 N.Y.3d 521 [2017]. I co-authored an amicus brief for the defendant in Boone), involving “cross-racial identifications.” There, the court held that “in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during the final instructions, a jury charge…instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness…and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.” The instruction is not necessary where “there is no risk of misidentification”—e.g., where the identification is merely confirmatory. But neither the absence of expert testimony on cross-racial identifications nor a defense counsel’s decision not to cross‑examine the witness about the identification is grounds for failing to instruct.