The Court of Appeals in Albany

The New York State Court of Appeals last year granted the fewest number of criminal appeals in a decade-and-a-half, according to numbers provided by the court. Only 25, or 1.11 percent, of the 2,244 cases decided in 2017 were granted an appeal by the high court. The percentage, likewise, represents a 15-year low for the court.

The numbers represent a significant drop-off during the first two years of the court under Chief Judge Janet DiFiore—something criminal defense attorneys have expressed concern over.

“From what I’m hearing, criminal defense lawyers seem to actually be alarmed at what’s going on at the court,” said Albany Law School professor Vincent Bonventre.

The concerns are born out of the stark change in acceptances the bar enjoyed in the years preceding the DiFiore court, but observers like Bonventre urge patience with a still-learning court full of relative newcomers.

Defense attorneys, though, have concrete reasons for what frustrations or concerns have developed over the past two years. Under DiFiore’s predecessor, Jonathan Lippman, the court took measures to increase its criminal appeal caseload.

Beginning in Lippman’s first year as chief judge, 2009, the court accepted 3.4 percent of criminal cases—a substantial increase from the previous year’s 2 percent during former Chief Judge Judith Kaye’s last year on the court.

During the Lippman years, the Court of Appeals granted no less than 3.85 percent of the criminal appeals presented to it in any given year, with a high in 2010 of 4.86 percent. This meant, in real terms, that 108 appeals were granted out of the 2,220 decided.

Chart: Number of criminal & civil appeals granted by the Court of Appeals over the past 15 years.

In a statement provided to the New York Law Journal, DiFiore responded to questions about the drop in criminal appeals granted, specifically compared to the overt attempts to grant criminal appeals under the Lippman court. DiFiore said the court has made no changes since she assumed the role of chief judge.

“The Court of Appeals has long been committed to giving careful and fair consideration to all motions and applications for leave to appeal and to ensuring that it grants leave to appeal in meritorious cases,” she said. “That was true in the past and it remains so now. The court’s policies and approach have not changed.”

Since her confirmation in January 2016, the court has seen a significant decrease in the rate of granted appeals overall. Only 1.87 percent of civil cases were granted by the court that year, compared to 5.42 percent in 2015. The criminal side saw a comparable drop, from 4.13 percent to 1.32 percent in 2016.

However, last year saw civil cases rebound from those lows, as 4.13 percent of appeals were granted by the court. The criminal side appeal trend, meanwhile, continued downward.

DiFiore noted that the number of leaves granted varies from year to year, “and is likely to do so in the future.” The court’s focus, she said, will remain on carefully choosing appeals “that present issues of statewide importance.”

“The judges are aware that there is little benefit to granting leave in a case where the Appellate Division has correctly applied settled law to the facts, or where issues of jurisdiction or preservation would prevent them from reaching significant questions of New York law,” she said. “Leave grants in such cases are costly to litigants and wasteful of court resources.”

Members of the defense bar, however, registered varying degrees of concern over the recent trend.

“Everyone should feel like they’ve had their day in court, but in light of the precipitous drop in the number of criminal cases the court has agreed to review in recent years, that goal is being jeopardized,” the Legal Aid Society’s David Loftis, attorney-in-charge of the defender organization’s post-conviction and forensic litigation unit, said in a statement. He went on to urge DiFiore to examine the situation and take steps to “address this troubling pattern.”

Buffalo appellate attorney Timothy Murphy, a board member of the New York State Association of Criminal Defense Lawyers, said the criminal appellate defense bar would “love” to see the numbers of appeals granted increase again.

“There are a lot of interesting issues we believe could be considered by the court that aren’t being considered at this point,” he said.

While he was hearing similar concerns from the defense bar, Albany Law School’s Bonventre, a longtime observer of the state’s high court, says there are mitigating factors that can help explain the recent dynamics. Perhaps more importantly, he sees the long-term trajectory of the court moving in favor of criminal defendants.

More than anything, the current court is a very “young” court, Bonventre said. All of the judges have been appointed by the current governor, Andrew Cuomo. Its longest-serving member, Associate Judge Jenny Rivera, has served for just under five years. Four of the seven judges, including DiFiore, have served on the court for two years or less. Judge Paul Feinman, the most recent to join the bench, was confirmed in June 2017, after the tragic and unexpected passing of former Judge Sheila Abdus-Salaam.

During the Lippman years, Bonventre noted, a number of the veteran judges, first among them the chief judge himself, were committed to increasing criminal appeals. These included former Senior Associate Judge Eugene Pigott Jr. and Associate Judge Robert Smith, both of whom were nominated by former Gov. George Pataki, a Republican. Lippman was nominated by former Gov. David Paterson, a Democrat.

“What you have in their stead are brand-new judges,” Bonventre said.

As the judges become more experienced, he believes the court will begin to find a balance that will mean more criminal appeals being granted. As proof, he points to his analysis of early voting patterns by the DiFiore court. While criminal decisions have been overwhelmingly “conservatively” pro-prosecution, his studies show that, on the civil side, the court has ruled in a less stark way, often siding with workers and consumers in a more “liberal” way.

Even more significantly, for Bonventre, is the person leading the court going forward. On paper, DiFiore’s background might seem to indicate a confirmation of the concerns raised over the direction of criminal appeals. A Republican turned Democrat, DiFiore served as Westchester district attorney for a decade before joining the state’s high court.

However, Bonventre says by all indications DiFiore has positioned herself as someone deeply concerned about the rights of defendants in the state’s court system. He noted her early work, as the head of court administration, attempting to tackle the substantial backlog of cases in some areas of the state, as well as recent initiatives aimed at improving discovery access for defense attorneys.

“We’re not talking about a militantly law-and-order chief judge—not at all,” he said. “This is definitely someone who is extremely sympathetic to the rights of the accused, who is extremely concerned about ensuring proper representation for the accused.”

Given more than a few years under her belt as both the state’s chief jurist, as well as the head administrator for the “mammoth” court system, Bonventre believes DiFiore will help lead the court—along with recent arrivals to the bench there that are expected to add to its liberal wing—to a “much more balanced” approach with regard to granting criminal appeals.

“I have every reason to think that’s the case,” he said.

For her part, the chief judge projected consistency and diligence on the issue going forward.

“I am confident that if a case raises an issue within the court’s jurisdiction that needs clarification or is of statewide import, it will not be overlooked,” she said.