Part 5, More on Caseload and on Criminal Appeals--NYCOA: The Wilson Uptick

The Court of Appeals remains the focus for now. Yes, dramatic developments at the Supreme Court should and will be addressed. Meanwhile, remember that for New Yorkers, our lives under the law are much more directly and regularly affected by the rulings of our highest court--just as they are for residents of other states and their high courts.

This post will be a review of sorts. We'll look at some of the same matters we did previously in this series, but with some more complete, supplementary data.

Credit:Tania Savayan.Westchester Journal News

In Part 1 of this series, we saw that the Court's overall caseload was already increasing in the very first few months of Rowan Wilson's tenure as New York's Chief Judge. In Part 2, we saw the same when considering only criminal appeals. In Part 3, we saw that the number of criminal appeals calendared continued to increase over the next few months. In Part 4, we compared the caseloads for the first full year of  Wilson's tenure with those of some previous years.

Let's now look at some similar comparisons, again with some supplemental and somewhat different data.

As noted previously, the State Bar News reported that Wilson made clear, at the 2024 Annual Meeting, that he believed that New York's highest court "must dramatically increase its caseload to regain its stature." [https://nysba.org/state-bar-news-annual-meeting-2024/#dflip-df_163552/23/ at 23.] Indeed, he has made no secret about those sentiments and has repeated them frequently. 

To anyone who has been following the Court and, more specifically, the contrast among the Judges in how frequently they have been granting CLAs (Criminal Leave Applications), Wilson's views on the subject should be no surprise. [Recall, the decision to allow a criminal case to be reviewed by the Court is made by the one Judge to whom the CLA was randomly distributed. No other Judge participates in that decision.] Wilson consistently granted the most CLAs of any Judge on the Court during the years when Janet DiFiore was Chief Judge, and he continues to do so.

Let's take a look:

(click to enlarge for a better view)

Considering the two ends of the Court's CLA-granting spectrum during the DiFiore era makes pretty clear which Judges were deciding to afford review of criminal cases by the Court most frequently, and which Judges the least so. Rowan Wilson and Jenny Rivera were the most generous in granting CLAs, and Janet Difiore and Michael Garcia the least so.

Regarding then-Judge Wilson, he granted CLAs the most frequently of any Judge on the Court and far more frequently than DiFiore and Garcia. The result? If a party seeking to be heard at the Court of Appeals had their CLA distributed to Wilson, there was a far greater chance of having their application granted. If their CLA was distributed to DiFiore or Garcia, the chances of getting a hearing at the Court were minimal. [The manifest unfairness of this state of affairs has been a source of much debate about whether to change the CLA process. See e.g., former Judge Eugene Pigott's Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 (2021-2022).]

The contrast in the CLA-granting figures among the Judges was much the same for the next two calendar years--i.e., for 2022 through 2023, the most recent full calendar years. Let's take a look:

(click to enlarge for a better view)

The composition of the Court had changed by the time of these calendar years. Chief Judge DiFiore left the Court in mid-2022. Judges Madeline Singas and Anthony Cannataro were both appointed in mid-2021 and, so, they were on the Court throughout 2022 and 2023. Judge Shirley Troutman was appointed in early 2022 and participated in CLA decision-making throughout 2023. (The figure for Troutman reflects only 2023.) But notwithstanding the compositional changes at the Court, the CLA-granting spectrum was similar to that of the preceding years. Some Judges were granting significantly more than others.

As in those previous years, Judge Garcia granted the fewest CLAs. Now-Chief Judge Wilson granted the most. To put the contrast in perspective, consider that a party that sought review by the Court of Appeals had a nearly eight times better chance of having their CLA granted if it was distributed to Wilson than if their application were to be decided by Garcia. A party would have a more than three times better chance with Wilson than with Singas or Cannataro.

Has Wilson's obvious preference for the Court to accept more cases to review been reflected in the caseload since he was elevated to be Chief Judge? For now, let's keep our focus on criminal appeals. (For additional perspective, I've included the final Fall to Spring year under Chief Judge Jonathan Lippman.) Take a look:

(click to enlarge for a better view)

As we've seen previously, the number of criminal appeals calendared under Chief Judge Wilson--Fall 2023-Spring 2024--increased significantly from the number calendared in the previous years. This is true for the period while Difiore was Chief Judge and while Cannataro was Acting Chief. Fifty-one calendared criminal appeals to an average of twenty-nine. To be sure, that's still considerably fewer than the eighty-two criminal appeals calendared under Lippman. But it is a substantial 75% increase from the immediately preceding years before Wilson was Chief.

Not surprisingly, an analogous development has been taking place for total appeals calendared--both civil and criminal. Take a look:

(click to enlarge for a better view)

The total appeals calendared at the Court under Chief Judge Wilson has increased similarly. An almost 50% increase from what the numbers had been in the immediately preceding years. Again, the caseload thus far in the Wilson era does not (yet?) approximate that under Chief Judge Lippman. It is still much lower than it was under Lippman--i.e., 180 in Lippman's final Fall to Spring year. But the increase of at least 30 appeals under Wilson, from what it was when DiFiore was Chief Judge and Cannataro was Acting Chief, is hardly insignificant.

Notably, there has been no decrease in civil appeals calendared under Wilson in order to keep the total number of appeals down to where it had been in the immediately previous years. Simple arithmetic--subtracting the number of criminal appeals calendared from the number of total appeals--tells us that.  The number of civil appeals calendared in the years immediately preceding Wilson's elevation to Chief Judge averaged about 40. In the first full year of calendaring under Wilson, there were over 50 calendared civil appeals. The Court's caseload is growing--period.

Where the caseload at New York's highest court goes from here is anyone's guess. But a good guess is that the caseload, both criminal and civil, will continue to be quite higher than it was before Wilson became Chief. He has left no doubt that he believes the Court's stature demands that, and that New Yorkers' worthy cases deserve that.

Next up--yes, finally--who's dissenting now!

Part 4, Update and More on Criminal Appeals--NYCOA: The Wilson Uptick

In Part 1 of this series, we looked at the first 4 months of Rowan Wilson's tenure as New York's Chief Judge and saw a 45% increase in total appeals calendared over the corresponding period the previous year. In Part 2, we saw that the number of criminal appeals calendared had actually doubled. In Part 3, we saw that the number of criminal cases calendared continued to increase dramatically through the next 3 months--nearly double the number for the same 7 months the previous year.

        (click to enlarge for a better view) 

Former Chief Judge Lippman with Chief Judge Wilson
at the 2024 Lawrence Cooke Symposium,
Albany Law School, April 25

(Several graphs in those previous posts depicted the comparisons of the early-Wilson era with that of the pre-Wilson months and with the corresponding months of Chief Judge Jonathan Lippman's final year. In short, criminal appeals rose sharply under Wilson, but not nearly at the level when Lippman was Chief Judge. 

The graphs also depicted Wilson's record of granting CLAs [Criminal Leave Applications] as the highest on the Court, both before and after he became Chief Judge. But, again, Wilson's record is still far below that of several members of the Court when Lippman was Chief Judge--including that of Lippman himself.) 

Let's now look at the caseload for the first full year of calendars with Wilson as Chief Judge. This would include the cases calendared for the Court's sessions from September 2023 until the Court's coming summer break this year.  And let's compare that to the caseloads of the corresponding previous full year of calendars--all set prior to Wilson becoming Chief Judge--and the corresponding full year of calendars during Lippman's final year before mandatory retirement. Here's what that looks like:

(click to enlarge for a better view)

As shown in the graph, total criminal appeals calendared in the first full Wilson year increased significantly over the previous year--76% increase. Despite this increase, however, the number is still far smaller than during the corresponding fall-to-spring term while Lippman was Chief Judge. To be clear, the point is not the more the better or that there is some ideal number. What is clear, however, is that the Court's criminal caseload did drop rather drastically from what it was in the Lippman era, and that the caseload is now increasing--if not as dramatically, certainly significantly.

As for the total number of cases calendared, civil as well as criminal, the roller coaster is similar. Take a look:

(click to enlarge for a better view)

As depicted in the graph, the total number of appeals calendared at the Court had dropped to less than one half--only 39% --of what it was under Lippman. In the first full fall-to-spring year under Wilson, the caseload has increased 47%. Still, it is a long way from the Lippman caseload, but unmistakenly a considerable rise.

This increase under Wilson is not surprising. He has made clear his belief that New York's highest court should be hearing more cases as part of "returning the court to its former glory. 'I would like to get back to that,' he said." [State Bar News/Annual Meeting 2024.]

He expressed similar sentiments at the Chief Judge Lawrence Cooke Symposium at Albany Law School last month. [The Eminence and Experience--and Exhaustion--of Being New York's Chief Judge, April 25, 2024. (See photo above.)]

Beyond that, regarding the criminal cases, Wilson's record for granting CLAs [Criminal Leave Applications] has rather consistently been the highest on the Court. It was so, for example, in the last two years of the Court under his predecessor, Chief Judge Janet DiFiore. Take a look:

(click to enlarge for a better view)

As shown on the graph, Wilson's average of granting 8.5 CLAs each year was the highest in the final years of DiFiore's tenure.

(Notably, among the five Judges who were on the Court for the entirety of those last two years, the contrast was stark: from Wilson's 8.5 to DiFiore's and Garcia's 1.5. Obviously, those parties whose CLAs were assigned to Wilson were far more fortunate than those assigned to DiFiore or Garcia.)

Wilson's record for granting the most CLAs--and the stark contrast among the Judges--continued after DiFiore left the Court. Here is what the first post-DiFiore year looked like:

(click to enlarge for a better view)

Once again, Wilson's record for granting CLAs was the highest among the Judges.

(Notably also, both his record and the Court's average jumped quite a bit in that immediate post-DiFiore year. Judges Rivera's, Cannataro's, and Troutman's records all contributed to the doubling of the Court's average. And as was the case while DiFiore was Chief Judge, the contrast among the Judges' records remained quite extraordinary. From Wilson's high of 17 CLA grants to Garcia's 1. Again, parties whose CLAs were assigned to Wilson--or to Rivera, Cannataro, or Troutman--had a much better chance for the opportunity to have their cases reviewed by the Court than if their CLAs were assigned to Garcia. This imbalance, the result of the single-Judge CLA decision-making process, has been the subject of much criticism. See, e.g., Eugene F. Pigott Jr., Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 [2021-2022])

To continue the aside about the imbalance resulting in CLA-granting records, it should be made clear that this is not a recent phenomenon--not a result of Janet DiFiore being Chief Judge or of her departure. This has been a long-term feature of the single-Judge CLA decision-making process. For example, the contrast was just as great while Judith Kaye was Chief Judge. Take a look:

(click to enlarge for a better view)

As depicted in this graph [from (Part 3) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven.], among the Judges who were on the Court for the entire last two years of Kaye's tenure as Chief Judge, the CLA-granting records ranged from Pigott's annual average of 11 to Read's average of 1.5.  As for the Court as a whole, CLA grants then doubled in the following years under Chief Judge Lippman from what it had been under Kaye. Here's a look at Court averages for total CLA grants over the years:

(click to enlarge for a better view)

As depicted in this graph [from NY Court of Appeals: Steep Cut in Criminal Cases (part 2).],the CLA grants during both the Wachtler and Lippman eras at the Court were double that of the latter 10 years of the Kaye era.

This is a long way of saying that, regarding CLA grants, there has been a contrast among the Chief Judge tenures just as there has been among the individual Judges themselves. With the criminal caseloads now increasing under Wilson, and his consistent record of granting the highest--or one of the highest--numbers of CLAs among the Judges, there is good reason to believe that parties seeking appeals in criminal cases will have an increased opportunity to have their cases heard by New York's highest court with Wilson as Chief Judge.

In the next post, we'll look at a significant change--actually a turnaround--in who's now dissenting at the Court of Appeals.

The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges

I wish Chief Judge Janet DiFiore, of whom I am personally fond, the very best on her announced departure from the Court.

Oral Arguments/Court of Appeals Website

We've previously looked at the Court of Appeals' dramatically reduced caseload over the past few years--both the total appeals and, separately, the criminal cases. Now let's look closer into the latter.

Let's see how many criminal cases the Court itself has been choosing to hear--as opposed to criminal cases reaching the Court as of right or because an Appellate Division Justice granted leave to appeal. Let's compare those recent CLA (Criminal Leave Application) numbers with the numbers in the past. Then let's see how many CLA's each of the individual Judges has been granting.

(For those who may not be familiar, here's a quick outline of the CLA process:

When a party, whether prosecution or defense, loses in the court below, it may choose to apply to the Court of Appeals for review. That "Criminal Leave Application" (CLA) is assigned by the Court to one Judge who alone decides whether or not the Court will hear the appeal. These CLAs are distributed equally and randomly to the individual Judges. As might be expected, some Judges are more generous in granting CLAs, and some Judges are less so. For this reason, the process is viewed by many as inherently unfair, and certainly less fair than the different procedure for civil cases, in which the entire Court decides whether to hear the appeal. The odds of having one's CLA granted and, therefore, of having one's case reviewed by the Court, depend to a large extent on the particular Judge to whom the CLA is assigned.)

Here's a look at the collective number of CLAs granted by the Judges of Court for each year from 1988 through 2021. That span of time covers the last several years of the Court under Chief Judge Sol Wachtler, the entire tenures of Judith Kaye and Jonathan Lippman in the center seat, and continues through the last several years with Janet DiFiore presiding:

(click to enlarge for a better view)

Similar to the figures we've seen previously regarding the Court's caseload (the total appeals and the criminal cases), the Court under Chief Judge DiFiore has been granting far fewer CLAs than the Court had typically done in past years. Indeed, as clearly shown in the graph, the decrease has been drastic. And that decrease began as soon as DiFiore replaced her retired predecessor, Jonathan Lippman.

Let's simplify the graph a bit by looking at 5-year averages--again from the tenure of Chief Judge Sol Wachtler through the recent years under DiFiore. Take a look:

(click to enlarge for a better view)

As the graph makes plain, the Judges of the Court under Chief Judge DiFiore have been granting less than half the number of Criminal Leave Applications that the Judges had been granting under Chief Judges Wachtler and Lippman, as well as during the early years of Chief Judge Kaye's tenure. The only era approaching the decrease that has occurred under DiFiore is that which occurred in the last several years under Kaye. (Notably, that decrease under Kaye followed Republican then-Governor Pataki's harsh criticism of the Court for "coddling" criminals and his appointing a majority of "law and order" Judges to the Court.)

For a seven-Judge court, the annual average of 49 CLA grants under DiFiore equates to an average of  7 CLA grants per Judge. That contrasts with over 14 per Judge under Lippman and during the early years of Kaye's tenure, and with even more than that under Wachtler.

Let's now look more closely at the contrast in CLA grants from the years with Lippman as Chief Judge to those under DiFiore. Specifically, let's take a look at the number of CLAs granted by the individual Judges during those two eras. Here it is:

(click to enlarge for a better view)

[The graph includes the records of all the Judges who were on the Court for at least 3 of the 5 years under either Chief Judge Lippman or DiFiore. All the Judges were on the Court for the full 5 years in the respective eras, except for the Judges who were on for 3 years as indicated by an asterisk.]

As the graph shows, under Chief Judge Lippman, every Judge, except one (Susan Read), was granting more CLAs per year than every Judge has been doing under DiFiore. In fact, Chief Judge Lippman and Judges Victoria Graffeo, Eugene Pigott, and Robert Smith--the latter 3 all appointees of Republican Pataki--were granting more than twice as many CLAs as every Judge has been doing under DiFiore, except for Judge Rowan Wilson.

Notably, Wilson has been granting significantly more CLAs than any other Judge under DiFiore, and he is the only one whose grants approach that of most of the Judges under Lippman. By sharp contrast, three of the Judges under DiFiore--the Chief Judge herself and Judges Leslie Stein and Michael Garcia--granted less than 1/3 of any Judge under Lippman, and far less than that compared to some of the Lippman Judges. In fact, DiFiore, Stein, and Garcia granted less than 1/2 of any other Judge during DiFiore's tenure.

What does all this mean? Well, the most obvious is that parties in criminal cases had a much greater chance of having an appeal heard by New York's highest Court under Chief Judge Lippman than under DiFiore. Beyond that, parties seeking to have their cases reviewed in recent years had better odds of succeeding if their CLAs were assigned to Judge Wilson than to other Judges on the Court. Indeed, if the parties' CLAs were assigned to DiFiore, Stein, or Garcia, their odds of having the Court of Appeals review their cases were greatly diminished than if their CLAs had been assigned to other Judges on the Court--not only Wilson, but also Judges Jenny Rivera or Eugene Fahey.

It is no wonder that the CLA process has come under so much bitter criticism by so many lawyers, judges, and their related organizations. Many agree with Judge Pigott--who happened to serve under Chief Judges Kaye, Lippman, and DiFiore. He has been outspoken about the CLA process in which he had a good deal of experience: "There’s no doubt this has to change. It’s absurd." [As quoted in, Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

Yes, in my view, absurd and terribly unfair. And those characteristics are only intensified when the Court, and specifically some members of the Court, drastically reduce the number of CLAs being granted.

The Incredible Shrinking Docket: The Court of Appeals' CRIMINAL Caseload (with graphs!)

We've previously looked at the reduction in the caseload at New York's highest court. (See The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload [The Graph].) Now we'll focus specifically on criminal appeals.

Credit: Daniel case

The magnificent Court of Appeals courtroom.

This has been a source of considerable consternation for the state's criminal defense bar. The lack of criminal defense experience among the judges, the decidedly pro-prosecution direction of the Court's decisions, and the sharp decrease in criminal appeals being accepted for review and decided--these have all been the subject of much disappointment and criticism.

The recent complaint of one prominent defense attorney is typical: “The Court of Appeals under [Gov. Andrew] Cuomo’s appointments has been moving further and further to the right, which is troubling given that the voting patterns of the state of New York demonstrate that the people of New York don’t view the world that way,”

[Alice Fontier, immediate past president of the New York State Association of Criminal Defense Lawyers, as quoted in Progressives Mobilize to Block Cuomo’s Tough-on-Crime Pick For Highest NY Court, by Sam Mellins, New York Focus, June 4, 2021.]

And another: "The court had done more work in the past. So what’s going on and what’s driving that change?" said Susan Bryant, executive director of the New York State Defenders Association. "I think anytime you see a significant shift in a court hearing cases, it’s concerning."

[See Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

It's not just criminal defense lawyers who have perceived a problem. Indeed, two recently retired Court of Appeals Judges, Eugene Pigott and Robert Smith, have both expressed concern about the process in which criminal cases are granted an appeal. The random assignment of CLA's [Criminal Leave Applications] to a single Judge, who is then the sole decider of whether a criminal appeal is heard by the Court, inevitably introduces a considerable degree of arbitrariness into the system.

Some Judges are much more generous in granting CLA's. Others are much less so. Hence, the odds of an appeal being accepted is necessarily affected by which Judge happens to get the CLA. Moreover, the wisdom and consistency of the process, as well as its fairness, would undoubtedly be enhanced if more than one Judge--let alone the entire Court, as in civil cases--reviewed the applications seeking an appeal.

Many share the view of Judge Pigott who has been quite pointed: "There’s no doubt this has to change. It’s absurd." [As quoted by Yancey Roy, cited above.]

[Disclosure: I do share the concerns of the criminal defense lawyers and I emphatically agree with Judge Pigott.]

But regardless of one's view of the Court's current treatment of criminal cases generally or of the CLA process in particular, there are the facts. Let's get to them.

First, let's take a look at the Court's criminal caseload. Specifically, let's look at the number of criminal appeals decided annually over the years. Previously, when we looked at the total number of appeals decided--civil and criminal--we began with the Court during the tenure of Chief Judge Sol Wachtler and continued through the Court under Judith Kaye, Jonathan Lippman, and currently under Janet DiFiore. We'll do the same with criminal appeals.

Here's the data, from the Court's own Annual Reports, on the number of criminal appeals it decided each year beginning with 1988, while Wachtler was Chief Judge, through 2021, the last period for which data is available. I've already graphed it all for ease of comparison visualization (and because I myself enjoy these):

(click to enlarge for a better view)

As is clear from the graph, the number of criminal appeals decided by New York's highest court has declined dramatically in recent years--drastically if you ask the criminal defense bar. It mirrors the decrease in the total criminal plus civil caseload that we've previously seen.

The criminal caseload remained roughly the same from the latter years of Wachtler's tenure as Chief Judge through the early years under Kaye. It then dropped significantly during the remaining years of Kaye's tenure, rose again significantly while Lippman was Chief Judge, only to drop once more the last several years under DiFiore. In fact, the current criminal caseload at the Court is the lowest it has ever been throughout this entire period--the only equivalent being the very lowest it was during a time of plummeting caseloads under Kaye.

To say the same thing with figures: the Court decided at least 90 criminal appeals annually, and usually more than 100, under Wachtler and through the first several years of Kay's tenure. Thereafter--and following then-Governor Pataki's relentless bashing of the Court for supposedly coddling criminals and disfavoring victims--the Court under Kaye sharply cut its criminal caseload. With some fluctuation, the annual number was roughly half of what it had been--from over 100 to less than 50 in some years.

When Lippman became Chief Judge, he made clear his intent to increase access to the Court and, perhaps most emphatically, to increase the number of criminal appeals the Court would hear.

(See Joel Stashenko, "Chief Judge to Review Why Court Accepts Few Criminal Appeals," NYLJ, April 22, 2009; also NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

Consequently, the Court's criminal caseload under Lippman increased as sharply as it had just previously dropped. Throughout his tenure, the Court would hear at least 90 criminal appeals annually, and in some years more than 100.

During the first year of DiFiore's tenure as Chief Judge, when the Court was hearing criminal cases largely accepted for review the year before under Lippman, the criminal caseload exceeded 100. Ever since, however, there has been a steep decline. In recent years, the Court has decided 40+ criminal appeals, which is half of what the Court's criminal caseload was under Lippman. Indeed, it is less than half of what it was under Wachtler or during the first several years under Kaye. It is even less than it was after the caseload plummeted under Kaye.

Let's conclude with another graph that may help to simplify all these figures. Here are the 5-year averages of the Court's annual criminal caseloads, again from Wachtler to DiFiore:

(click to enlarge for a better view)

As this graph makes crystal clear, across much of the last several decades, the Court of Appeals decided 100 or more criminal cases a year. The Court decided far fewer in two separate periods: the latter part of the Kaye era and the last several years under Chief Judge DiFiore.

Whatever the particular causes or rationale, the Court's caseload in both of these periods dropped to approximately half of what it had been in the immediately preceding years. Such dramatic changes would seem strongly to evince deliberate policy choices. One of the Court's recent retirees, interviewed about the recent drop in the criminal caseload, was reported to have explained that "the chief judge’s approach set a tone. 'I do think it made a difference who the chief was,' [former Judge Robert] Smith said. 'Leadership has an effect.'" [From Yancey Roy, cited above.]

[It should be noted that the Court's total caseloads--civil plus criminal--were much greater prior to the periods discussed and depicted in the two graphs, as well as in the two previous posts. For example, throughout the early 1980's, the Court's total caseload was more than double what it would be in the latter years of the Wachtler era. The Court would regularly decide more than 700 appeals annually. That total caseload dropped significantly in the later 1980's after the Court's jurisdiction was legislatively changed, effective in 1986, to give it much greater control over its docket.]

We'll next look at the number of CLA's [Criminal Leave Applications] granted by the Court annually over the years and, recently, how many CLA's the individual members of the Court have been granting.

NY Court of Appeals: Steep Cut in Criminal Cases (part 2)

(Crazy busy the last several weeks, but now back.)

The last time, we looked at the CLA figures for fall 2016 through summer 2017--i.e., the number of criminal leave applications granted by each Judge during that period. It was the most recent period for which I could confidently corroborate the data. (See last post.) Since that post, I've been able to corroborate the figures for the entire 2017 calendar year.

Here are those 2017 calendar year figures with some perspective:

(click on graph to enlarge)

This graph shows the CLA grants for each Judge in the last year of the Court under Chief Judge Jonathan Lippman contrasted with those for the first full calendar year under Chief Judge Janet DiFiore. I'm not sure anything needs to be added to what the graph itself shows about how striking that contrast is.

(The graph includes only those Judges who were on the Court for all or virtually all of each respective year.)

Chief Judge Lippman himself granted more CLA's than the entire Court n 2017. Judge Pigott himself granted almost as many as the 2017 Court.

The figures do not reveal why the number of CLA grants has dropped so precipitously--yes, other than the simple fact that the Judges are not granting as many. But the data over the years does reveal that this is not the first time such a drop has occurred. Take a look:

(click on graph to enlarge)

As this graph shows, the number of CLA grants plummeted at the Court several years into the tenure of Chief Judge Judith Kaye. The drop contrasted sharply with the number of CLA grants while Sol Wachtler was Chief Judge, as well as early in Kaye's tenure. The number of CLA grants then increased dramatically under Chief Judge Jonathan Lippman.

(This up and down and up again was explored in a series of posts early in Lippman's tenure. See series beginning with, NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

Here are those same figures in a less cluttered graph:

(click on graph to enlarge)

Averaging the years makes the contrast even clearer. In short, the CLA grants during both the Wachtler and Lippman eras at the Court were double that of the latter 10 years of the Kaye era.

Now let's insert the total CLA figures for 2017 to give them added perspective:

(click on graph to enlarge)

Again, the figures do not explain why the number of CLA grants has dropped so drastically, but they do show that the drop has indeed been drastic.

(N.B. the 2017 figures reflected in the graph are total: they do include the CLA grants for all the Judges, whether they were on the Court for all or part of the year.)

While the raw data does not explain the reduction in CLA grants, it does reveal a drop that is so dramatic that it is very hard to believe that it is mere accident and not the result of either a deliberate change in policy or some other significant phenomenon. The figures for 2018--whether they remain similarly low or they increase--may provide some insight, especially when viewed with other profiles and patterns.

NY Court of Appeals: Steep Cut in Criminal Cases (part 1)

New York's highest court, the Court of Appeals, "granted the fewest number of criminal appeals in a decade-and-a-half" last year. According to a report in the New York Law Journal, figures for 2017, which were provided by the Court itself, indicate that number to be 25, or 1.11% of the 2.244 applications. (See Court of Appeals Hears Fewest Criminal Cases in 15 Years, by Colby Hamilton, NYLJ, January 30, 2018.)

The Court's figures, however, don't go much deeper than revealing the overall number of "Criminal Leave Applications" (CLA's) that were granted and denied. The figures do not indicate how many CLA's were granted or denied by each member of the Court. Indeed, the figures published each year in the Court's official Annual Reports do not include any such information.
[For those unfamiliar with Court of Appeals procedures: CLA's are decided by one Judge. The incoming CLA's are distributed randomly among the Judges, and the Judge who receives a CLA is the only one who decides it.]

So let's look behind the CLA numbers. See where the dramatic drop is coming from.

Now, I could not independently confirm the calendar-year 2017 figures provided to the NYLJ by the Court. The raw underlying data is not yet completely available on at least 2 accessible databases that would corroborate each other and would give me confidence. But I could independently determine the figures for a slightly earlier 12 month period--from fall 2016 through summer 2017. The complete raw data for that year-long period is already available on at least 2 separate databases to check against each other. So, at this point, I'm much more confident in those numbers, and those are the ones we'll focus on.
[The data that I do have for calendar-year 2017 are from 2 separate sources that are still a bit dissimilar, likely because at least one of those sources is not yet complete through the year. IAE, it turns out that the unconfirmed figures for calendar year 2017 and the figures I have been able to confirm for the slightly earlier 12-month period are very similar, and they similarly reveal the same dramatic drop in CLA grants.]

Okay, what are the figures for fall 2016 thru summer 2017? Specifically, what are the number of  CLA's granted by each Judge during that 12 month period, shortly into the tenure of Chief Judge Janet DiFiore--which began on January 21, 2016? Here they are graphically:

(click on graph to enlarge)

Five of the Judges were on the Court during that entire 12-month period. So their receptive grant numbers reflect the entire year. Judge Eugene Pigott was forced off the Court by mandatory retirement age at the end of 2016. So the grant number for him reflects that calendar year--which includes the entire year of DiFiore's appointment in January, as well as the 3 weeks immediately prior. As for Judges Rowan Wilson and Paul Feinman, they were each appointed during 2017 and, thus, their grant numbers reflect less than a year on the Court.

With that in mind, the graph reflects that Judge Pigott granted the most CLA's. After him, in descending order, was Judge Eugene Fahey, Chief Judge DiFiore, and then Judges Leslie Stein, Michael Garcia, and Jenny River:

• Pigott,  11
• Fahey,  7
• DiFiore,  5
• Stein,  4
• Garcia,  3
• Rivera,  2

In a vacuum, those numbers don't necessarily tell us much. So let's put them in perspective. Let's compare them to the number of CLA grants for the very same Judges during a similar period under Chief Judge Jonathan Lippman--as well as for the Chief Judges themselves. Here is a graphic look at the figures for fall 2016 thru summer 2017 alongside those for fall 2014 thru summer 2015--the last such 12-month period under Lippman:

(click on graph to enlarge)

As shown in the graph, here are the contrasting numbers, DiFiore Court versus Lippman Court:

• Pigott,  11 versus  17
• Fahey,  7  versus  8
• Stein,  4  versus  6
• Rivera,  2 versus  6
• DiFiore, 5  versus  Lippman, 26

Let's look at these numbers somewhat differently. In this next graph, the respective numbers for each Judge, and for the Chief Judges, are juxtaposed:

(click on graph to enlarge)

The contrast could hardly be clearer. Obviously, the starkest contrast is between the number of CLA's granted by Chief Judge Lippman (26) and those by his successor (5). The drop for Pigott from the Lippman to the DiFiore courts is also quite stark (17 to 11). And although not as dramatic, the number of CLA grants by each of the other Judges has also dropped.

Well that's the underlying data on CLA grants for each of the Judges who have served with both Chief Judges Jonathan Lippman and Janet DiFiore--and for Lippman and DiFiore as well.

There's little question about it. As the NYLJ reported, significantly fewer applications for the Court of Appeals to review criminal cases are being granted by the Judges. And clearly significantly fewer than when Jonathan Lippman was Chief Judge.
[Here's the link to the Jan. 30, 2018 NYLJ article by Colby Hamilton.]

In the next post, we'll put this current drop in CLA grants in the context of modern Court of Appeals history in which a similar sharp drop previously occurred.

Part 9 - Observations: Polarized? Decisions Unsigned? (Early DiFiore Court Patterns)

Well, we elected a new president yesterday. God bless our country through the next four years. Among many other things, whatever may become of the Supreme Court, we are fortunate in New York to have the Court of Appeals, which historically has provided some immunity from regrettable directions taken by the highest federal court.

We've already offered several observations about New York's highest court with Janet DiFiore as Chief Judge, a position she assumed this past February. (See Part 6, Part 7, Part 8.) In this post, we address two additional questions that arise from reviewing the voting and decisional output of the early DiFiore Court:
Is the Court polarized?
Has the Court resorted to unsigned decisions in significant cases?

The short answers: no, and sometimes yes.

No, New York's highest court is not polarized. Certainly not along the rigid ideological lines that have divided the Justices on the U.S. Supreme Court for the last few decades.
But yes, the Court of Appeals has occasionally been rendering decisions unsigned by the authoring Judge, even when the issue has been close, the law or its application has been unclear, and the Judges have been divided--sometimes deeply.

Let's take a look at the record.
Regarding the presence or absence of polarization, let's look at the 11 decisions rendered by a  4-3 majority. [Included are all 4-3 decisions through October.] That is, those rulings of the DiFiore Court--the disposition of the case and the rule of law announced--that were decided by a single vote.
Consider whether the 4-3 lineups, which evince the sharpest divisions among the Judges, show the kind of predictable patterns that that we've come to expect from the Supreme Court. Here are those cases:

People v. Johnson (3/29/16): co-defendant's out-of court statement [4-3].

People v. Badalamenti (4/5/16): "vicarious consent" to record child's conversation [4-3].

People v. Nelson (4/5/16): spectator conduct in the courtroom [4-3-0].

People v. John (4/28/16): right to cross-examine DNA analyst [4-3].

Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3].

Wally G. v. NYC Health & Hosps. Corp. (6/9/16): late notice of claim [4-3].

People v. Frankline (6/9/16): evidence of past crimes [4-3-0].

People v. Berry (6/14/16): sufficiency of child endangerment evidence [4-3].

People v. McCullough (6/28/16): reliability of eyewitness identification [4-3].

Pasternak v. Laboratory Corp. of Amer. (6/30/16): c/a in fraud and negligence [4-3].

M/O Jamal S. (10/27/16): search & seizure [4-3].

It should be clear from a survey of these lineups that the majorities have been constituted by different combinations of Judges. What has been most consistent, in these 11 most sharply divided decisions, is that different Judges have been voting with each other.

Having said that, a few other consistencies--or at least repetitions--have emerged:
    1) The most frequent majority in these 4-3 decisions--"frequent" as in only 3 of these cases--has been Chief Judge DiFiore and Judges Pigott, Stein, and Garcia. [Sherman, Wally G., and McCullough.]
    2) As a corollary to that, Judges Rivera, Abdus-Salaam, and Fahey were together in dissent in those same 3 cases; additionally, they were together with DiFiore in 1 of the cases to form a majority. [John.]
    3) There are pairs of Judges who voted together frequently in these 4-3 cases: Pigott & Garcia (10 times); Rivera & Abdus-Salaam and Rivera & Fahey (7 times each).
    4) On the other side of the coin, 2 of the Judges almost always voted in opposition: Rivera & Garcia (10 times).
    5) As has been clear in what we've seen in previous posts in this series, and has been underscored here, there are ideological bookends on this Court. Judges Rivera and Garcia have compiled the most liberal and conservative voting records, respectively. It is thus not surprising that they voted on opposite sides virtually every time in these most sharply divided decisions.

Finally, in 3 of these cases, the Court rendered its decision in an unsigned memorandum opinion. Consider: in each of these cases, 3 Judges disagreed with the Court's ruling, they did so in a separate opinion, and the bare majority rendered its decision in an opinion unsigned by the authoring Judge:
Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent];
People v. Frankline (6/9/16): past crimes evidence [4-3-0, Unsigned Memorandum vs Stein, Fahey, and Garcia in a separate concurring opinion]; and
People v. McCullough (6/28/16): reliability of eyewitness identification [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent].

The Court did the same in other decisions in which at least one of its members authored a separate opinion taking issue with the unsigned majority:
People v. Davidson (6/7/16): power of special prosecutor [4-2, Unsigned Memorandum vs. Rivera & Abdus-Salaam in dissent];
People v. Reynolds (6/7/16): illegal plea condition [6-1, Unsigned Memorandum vs. Rivera in dissent];
People v. Joseph (10/25/16): burglary of a dwelling [6-1, Unsigned Memorandum vs. Stein in dissent]; and
M/O Yoga Vida (10/25/16): employer-employee relationship [4-2, Unsigned Memorandum vs. Rivera and Fahey in dissent].

Several years ago I noted the same thing about the Court at that time. (See Court of Appeals, 1990, 12 Pace L. Rev. 1, 53 [1992].) As I wrote at the time, addressing the somewhat curious incidence of unsigned majority opinions in significant divided cases: "It is not difficult to understand why opinions whose authors remain unnamed might tend to be less carefully considered and crafted than those that are signed...Most of those writings, to be kind, were unworthy of a distinguished tribunal."

A member of that Court publicly rebuked me for that observation, insisting that the Court issued unsigned memorandum opinions only when the law was well settled, when the resolution of the issue was clear, and when nothing significant was at stake. Of course, that explanation cum defense could hardly be taken seriously when the decisions I had referred to involved substantial constitutional questions on which members of the Court were deeply divided, as evidenced by strong, thoughtful, lengthy dissenting opinions.

Moreover, despite that one negative reaction to my observation, other members of the Court volunteered their agreement (as did other Court watchers) and noted that it was no mystery who was responsible for that development. Additionally, one Judge advised me that he/she would henceforth sign all opinions.

I hope that these several recent incidents of unsigned majority opinions, in cases involving close issues that generate divided decisions, does not portend a development in the DiFiore Court that had marred the Court's reputation in the past.

Part 8 - Observations: Generally Conservative (Early DiFiore Court Patterns)

We saw in the last post that the early DiFiore Court has compiled a record in criminal cases that is somewhat pro-prosecution. More specifically, in the first half-year of criminal appeals since Janet DiFiore has presided over New York's highest court as Chief Judge, the Court rendered decisions more favorable to the prosecution in 65% of those close, divided cases. Stated otherwise, the majority of the Judges voted for the more pro-prosecution position in nearly twice as many of those cases as it supported the position more favorable to the accused.

We also saw that in those divided criminal cases in which only one Judge dissented, most of the time it was Judge Jenny Rivera who had authored the lone dissenting opinion. Moreover, she sided with the accused in each of her sole dissents.

Let's now take another look at how frequently Rivera and her colleagues have been dissenting, whether in criminal or civil appeals. We did that earlier in this series. (See Part 1.) Here's that same data, just a bit reorganized and highlighted in the following graph:

(click on any graph to enlarge)

As reflected again in this graph, Judge Rivera--the sole pro-accused dissenter in most of the single dissent cases--has been the Court's most frequent dissenter. And again, by a wide margin.

Not surprisingly then, her record has been the most pro-accused of the Judges--once again, by a wide margin. Here's a reorganization of some data we've seen before to help with our present focus:

No other Judge on the Court comes close to judge Rivera in siding with the accused. Indeed, she compiled a record nearly 3 times as pro-accused as that of the Court as a whole. But more relevant to the observation being offered here, the record of the Court as a whole as seen in this graph, 35% pro-accused, is that the majority only adopted the more pro-accused position approximately one third of the time.

Of course, it might be argued that Judge Rivera's record is extreme, that her tendencies lean so far in favor of the rights of the accused, that her votes skew the data. (To be sure, Judge Rivera's record evinces unmistakable leanings toward vigorous protection of the rights of the accused. But a fair reading of her opinions hardly suggests extreme positions.) However, her pro-accused record is more than counterbalanced by that of two of her colleagues, Judges Michael Garcia and Eugene Pigott, at the other end of the Court's spectrum--i.e., 0% and 18% pro-accused, respectively.

Moreover, take a look at the total votes cast in divided criminal cases. That is, the cumulative number of votes cast by the Judges for the more pro-accused position and the more pro-prosecution position. This takes into account the votes within the most pro-accused and the most pro-prosecution records among the Judges, as well as the votes cast by every other member of the Court.

As the graph shows, the data is pretty clear. The total votes cast by the Judges in these divided criminal cases add up to a more conservative, pro-prosecution record--just what we've been seeing with other data. Whether looking at the data for Court decisions, for individual Judge's voting, or for cumulative votes, it's hard to escape the fact that the Court as a whole has been at least somewhat conservative in deciding criminal cases.

What about the non-criminal cases?

Let's start just as we did with the criminal decisions. Look again at the data on dissents. During this period, Judge Rivera was followed by Judge Eugene Fahey as the Court's most frequent dissenter. In criminal appeals, his record was half as pro-accused as Judge Rivera's, but it was still on the more pro-accused side of the Court. As for the civil cases, take a look:

As the graph shows, Judges Fahey and Rivera--the Court's two most frequent dissenters--have the Court's most liberal records in the civil cases. More than that, their records are several times more pro-worker, consumer, tenant, etc. than 3 members of the Court (Chief Judge DiFiore and Judges Pigott and Garcia), and at least 3 times that of the Court as a whole.

As we did with the records in criminal cases, let's look at the cumulative number of votes cast by the Judges in the divided civil cases:

As in the criminal cases, the cumulative votes in the civil cases confirm the Court's overall conservative bent. (The Court's mere 25% liberal decisional record reflected in the previous graph might seem at odds with this closer 22 versus 30 cumulative vote total. But much of the seeming discrepancy is attributable to the bare 1 vote conservative majorities in the several 4-3 civil decisions. See Part 3.)

So, whether we look at the data from the criminal cases where the Court's record leans pro-prosecution, or from the civil cases where it leans somewhat more strongly pro-employer, business, tenant, etc., the early DiFiore Court's overall record is generally conservative. Not lopsidedly so. Indeed, it would be absurd to label this a right-wing Court. But if one had to choose between its being more liberal or more conservative, the latter would seem more accurate.

To conclude, let's add the cumulative criminal case and civil case votes. Here it is:

This graph reflects all the votes by all the Judges in the divided criminal and civil cases combined. It reflects the total votes of the Judges with the most liberal records (i.e., pro-accused, and pro-worker, consumer, tenant, etc.), those Judges with the most conservative (i.e., pro-prosecution, and pro-employer, business, landlord, etc.), and those Judges with records in between. To be brief: half again as conservative as liberal.

Sooooo, this is the record of the early DiFiore Court. The votes and the resulting decisions have generally been conservative.
[To those who are wondering: yes, in future posts I will be updating all that we've been discussing to include what the Court does in the remaining months of the first year of the DiFiore Court.)

One final point. Lest any of the foregoing be misconstrued, the observations here are not about the Court's being right or wrong, wise or foolish, or the same or different than I would have preferred. The observations are simply what the data can reveal, which is that the Court's record has been more conservative than liberal.
[Disclosure: I would have been somewhat more liberal, especially in the civil cases.]

One last observation in the next post.