Queens Criminal Court in Kew Gardens is where Justice Paynter’s chambers are. Photo: Google

Criminal justice observers have expressed concern about the number of reversals in recent years coming out of one Queens courtroom handling many of the evidence suppression hearings for the Supreme Court.

Combined with other issues raised recently about the criminal justice system in Queens, they express worry that the spate of reversed suppression decisions, sometimes for reasons that left appellate judges apparently scratching their heads, showcase an insular system unfairly tilted against defendants who enter it.

The reversal pattern can be traced to 2013, when the New York Supreme Court Appellate Division for the Second Department reversed a trial judge’s refusal to suppress witness testimony identifying a defendant based on an overly suggestive police lineup. The Second Department in that decision overturned the conviction and required a new trial.

Three years later, the Second Department threw out a decision from the same judge that allowed evidence seized from a home without a warrant. That led to a guilty plea being vacated.

More recently, the appellate court set aside a drug conviction because, it said, “incredible” police statements about key evidence “strain[ed] credulity and defie[d] common sense,” yet were not suppressed by the trial court.

The common thread among all of these criminal cases was Queens Supreme Court Justice Steven Paynter. Since 2013, he has been reversed nearly a dozen times by the Second Department over testimony and evidence defendants fought unsuccessfully to keep out of trial.

While reversals among state trial judges are common occurrences, legal observers agreed that the volume of Paynter’s appellate reversals raised questions about the deference being provided law enforcement and prosecutors appearing before Paynter.

“It’s certainly significant,” New York Law School professor Alvin Bragg, a former chief deputy in the state attorney general’s office, told the Law Journal.

A veteran of both the AG’s office and the Manhattan U.S. attorney’s office, Bragg said it was notable that the appellate panel was willing “to step over” the usual benefit of the doubt provided to trial court judges dealing with the mix of police, prosecutors and attorneys in a criminal courtroom.

“Here you have the appellate court coming behind all those actors saying, ‘Mmm, not so much,’” he said.

‘A suppression-denial machine’?

Suppression hearings are a substantial portion of Paynter’s docket. The K-6 Part of the Queens Supreme Court has existed for at least 15 years, according to a court spokesman, preceding Paynter’s time there. It makes sense, then, that the appellate court would so often be asked to address suppression issues on appeal from Paynter’s courtroom.

Bragg said he saw no specific issue that continually popped up on appeal. There was no single legal area of law—for example, handling of firearm evidence during traffic stops—in which Paynter would consistently try to advance his views. Bragg said Paynter’s apparent readiness to allow police and prosecutors to forge ahead with evidence the appellate courts later found inadmissible suggested the possibility of broad acquiescence to law enforcement’s judgment and authority.

This same sentiment was reflected in conversations some attorneys who practice before Paynter in Queens had with the Law Journal. Speaking on the condition of anonymity over fears of reprisals by court officials including Paynter, the litigators said the judge’s reputation of hostility towards defendants was well-known.

“He’s a suppression-denial machine,” one such attorney told the Law Journal. “Appearing before him is not a pleasant experience. You feel like you’ve lost before you entered the courtroom.”

The review of Paynter’s reversals is just the newest set of questions raised about state Supreme Court judges Queens.

From concerns about the appearance of family relationships among other members of the Queens judiciary and prosecutors to appellate cases over inappropriate interjections during trial from the bench, the Supreme Court in Queens continues to draw scrutiny over its practices.

New York Law School professor Rebecca Roiphe said the accumulation of questionable practices in the Queens courts creates a “cascading effect” that corrodes the public’s faith that the justice system is delivering on its promise.

“It’s the rights of the defendants but also the rights of all the rest of us to a functioning criminal justice system and a government that abides by the law,” she told the New York Law Journal.

Looking at the Record

Like about half of his colleagues on the bench in Queens, Paynter served as a prosecutor in one of the city’s district attorney offices. His first stint began in the early 1980s with the Queens DA’s office, before becoming a court attorney for a local judge. He then rejoined the DA’s office at the start of Richard Brown’s tenure in 1991. In 1996 he was elected to the county’s civil court and 12 years later was elected to a seat on the Queens Supreme Court.

A review of appeals coming out of his courtroom, as well as a comparison with the broader trend of reversals before the appellate court that oversees him and his fellow judges, appears to add credibility to observers’ concerns.

The Second Department’s annual reports show that the appellate court reversed only 3.8% of all trial court decisions it reviewed in 2018. And since 2013, the court’s annual reports show that the reversal rate in the appellate division has not been higher than 5.2%, as it was in 2014.

In appeals from suppression decisions, Paynter has found himself reversed on 12 of 37 occasions, for a reversal rate of 32.4%, according to a New York Law Journal review of his record from 2013 to 2019.

All but one of those reversals came in cases where Paynter decided against criminal defendants.

Paynter was appealed on 15 other occasions, dealing with non-suppression issues including sentencing and sex offender status.

The pattern of suppression reversals appear to support concerns that defendants before Paynter were at a disadvantage when it comes to proper scrutiny of evidence presented against them, according to Haub School of Law at Pace University professor Bennett Gershman.

“He was a Queens ADA for 12 years, so it’s clear that he has some, you might say, bias in favor of law enforcement,” Gershman said.

Like Bragg, Gershman has a background in law enforcement, having once served in the Manhattan DA’s office. An original member of the Pace Law faculty, he also did a tour with the special state prosecutor’s office, investigating corruption in the judicial system.

A number of details from the reversals stuck out for him as well. He noted that, with one exception, the decisions to reverse Paynter were all unanimous. He also found it remarkable that in most instances the guilt of the defendant was not in doubt, and some of the cases involved serious crimes. Yet the appellate panels felt compelled to regularly overturn convictions because of Paynter’s handling of suppression issues.

“The judge basically said, ‘The ends justify the means … Since the defendant’s clearly guilty, and the officers found the evidence of guilt, I’ll just take a shortcut, and say, well, they did the right thing,’” Gershman said.

Gershman also pointed to the latest appellate reversal as providing a vivid example of Paynter’s willingness to give law enforcement a pass on evidence.

Cop’s ‘Incredible’ Testimony

The March 6 decision—handed down by Appellate Justices John Leventhal, Colleen Duffy, Francesca Connolly, and Linda Christopher—reversed the 2015 drug-related conviction of Zabi Maiwandi. While the jury trial was handled by Queens Supreme Court Justice Stephen Knopf, the appeal was for the review of Paynter’s suppression motion hearing.

During the hearing, Detective Matthew Borden testified that, as he sat in his unmarked police car, he watched the defendant through his rearview mirror. Maiwandi was allegedly sitting in a vehicle more than a car-length behind him. Borden testified that he saw Maiwandi pass an approximately eight-by-two-inch white package with a blue stripe to a woman seated next to him. He believed the box to be the prescription drug Suboxone.

This testimony was contradicted, however, by the detective called to the scene by Borden and who actually arrested the defendant. He testified at the suppression hearing that the box was actually two inches long and one-inch wide—a quarter the length and half the width of the box Borden claimed established probable cause.

The appellate panel in its decision called Borden’s testimony “incredible and patently tailored to meet constitutional objections.”

“Borden’s claim that he observed the alleged transaction through his rearview mirror with sufficient clarity to see that the object passed between the occupants of the car was Suboxone strains credulity and defies common sense,” the panel found.

Gershman said the appellate panel’s reaction stood out for him as “one of the most extraordinary rulings” reversing Paynter, as it was “so palpably clear to everyone that this cop was lying, and the judge just kind of ho-hummed.”

Roiphe also said she found the appeals court’s reaction to be remarkable.

“That’s the kind of thing that courts usually defer to the trial judge,” she said. “You can certainly read a sense of frustration at the fact that the [trial] court would draw this conclusion that’s just physically impossible.”

Providing a Road Map

Paynter’s suppression decisions haven’t drawn scrutiny only from the appellate division.

Defendant Kenny Rodriguez was arrested in November 2012 on drug-related charges. The suppression hearing before Paynter was closed ahead of a final oral argument by Rodriguez’s attorney scheduled for late February 2014. At that hearing, Paynter surprised both sides by reopening the hearing sua sponte and ordering the DA’s office to produce additional witnesses.

He went further than simply demand more witnesses, according to filings in the Article 78 proceeding brought against Paynter on behalf of Rodriguez. His attorneys, pointing to the record, claimed Paynter proceeded to coach and direct prosecutors on the kinds of witness statements they needed to produce to establish probable cause.

Rodriguez’s attorney at the hearing, solo practitioner Marvyn Kornberg, objected to Paynter’s actions, arguing that they were unfairly benefiting the prosecution, to little avail.

The appellate panel—composed of Justices Mark Dillon, Sandra Sgroi, Joseph Maltese, and Colleen Duffy—dismissed the move to prohibit Paynter from continuing the suppression hearing in the case. Rodriguez “failed to demonstrate a clear legal right to the relief sought,” the panel found.

Reached by phone, Kornberg said he brought the suit because it appeared clear to him that Paynter was providing prosecutors with “a road map” for how to proceed.

“I don’t think anybody should have a road map in a criminal case,” he said.

Kornberg, who indicated he has dealt with Paynter since his days in the DA’s office, said he was surprised at the time by the appellate division’s decision.

“I thought that was done here was basically prejudicial to the defendant,” Kornberg said. “We held a hearing, and the judge said, effectively, ‘Do A, B, C and D.’ So the district attorney’s office did A, B, C, and D and then the judge finds against the defendant. I mean, give me a break.”

But Paynter has also been supported by appellate panels, such as three times in 2012 and 2013 where he rejected evidence proffered by prosecutors.

In several other instances, he got the decision right in the eyes of the appellate department when, on remand, he decided to suppress evidence.

In a statement, a spokesman for the Office of Court Administration reiterated Paynter’s “unique role” in the Queens Supreme Court “almost exclusively” handling suppression hearings. According to court officials, Paynter completed approximately 820 suppression hearings between 2013 and 2018, resulting in about 140 hearings a year on average.

“Like police officers who make numerous arrests, active Judges that hear a lot of cases get appealed,” OCA spokesman Lucian Chalfen said. “And of the 55 appealed cases, it may well be that the defendant’s appellate lawyer did not have an issue related to the suppression hearing, and therefore it does not count as an appeal. That is the nature of the criminal justice system today.”

Gershman questioned any attempt to minimize the significance of Paynter’s reversal rate. The reversals themselves, the law professor noted, “show glaring errors by a judge who’s supposedly an expert” in suppression issues, which he pointed out, again, generally received substantial “indulgence and deference” from the appellate courts.

“That’s not a good answer, I don’t think, to justify a judge’s conduct where he either doesn’t understand whether or not police engaged in misconduct, or whether or not evidence should be suppressed. These are basic things that a suppression judge should know,” Gershman said. “To make a mistake in so many cases is not something you could just sweep under the rug.”

There were also procedural issues to take into account, according to Gershman and others. Most defendants will proceed to a plea agreement that will mean issues raised during their suppression hearings will never be heard. As one attorney noted, Paynter is protected from judicial review in most non-trial cases by the appellate waiver which explicitly requires a waiver of suppression hearing defects.

“[T]hose clients who opt to go to trial (and, unfortunately, lose) do get judicial review of their suppression hearing conducted by Justice Paynter,” the attorney, who was granted anonymity over fear of reprisals by court officials, told the Law Journal.

A Culture of Unfairness?

The issues raised about Poynter were just part of a broader set of concerns criminal justice advocates and legal observers like Roiphe continue to raise. Her “cascading effect” of influence flows from the judges in the courthouse to the prosecutors in the DA’s office, and beyond.

“The judicial office is supposed to be acting as a check on the prosecutors, which in turn ought to redirect the culture in the prosecutor’s offices not to be solely focused on convictions,” she said.

The dynamic in Queens has created the appearance of a system where three institutional cultures—the judiciary, prosecutors and the police—are operating unchecked by the others, Roiphe said.

“What you have is the validating of this corrosive culture within the offices of these different bodies which are supposed to each individually promoting justice,” she said. “It’s extremely problematic.”


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