If you’re looking to appeal your criminal case to New York’s top court, your chances come down to a roll of the dice.
Each request for the Court of Appeals to reconsider a lower court decision is randomly assigned to one of the court’s seven judges, who then unilaterally decides whether to hear the case. Some are much more likely to say yes than others.
Led by a new chief judge, the court appears to have shifted left on criminal issues, with several closely divided recent cases breaking in favor of defendants. Now, defense lawyers are watching to see whether the court will also hear more of their clients’ appeals, after former Chief Judge Janet DiFiore oversaw a dramatic shrinkage of the court’s criminal caseload. Occasionally, lower court judges send cases to the Court of Appeals, but DiFiore sought to curtail this practice, too.
WIDE IMPLICATIONS
Only a tiny fraction of the more than 100,000 yearly convictions in New York end up at the Court of Appeals. But the ones that do can set binding precedents for every other state court, meaning that even a small jump in caseload could have outsized implications.
In November, for example, one ruling expanded cyclists’ legal protections against police stops. The case only came before the full court because former Judge Eugene Fahey decided it should. Fahey, who left the court in 2021, was more generous with appeals than some of his colleagues, approving one out of every 11 requests. The case would have had slimmer odds if it had gone to Judge Michael Garcia, the court’s sole Republican: He approves fewer than one in 50 applications.
Some former judges have critiqued the practice of individual discretion, a model that other large states’ top courts do not use.
“To me, one person making these decisions is just crazy,” said Eugene Pigott Jr., who was appointed to the Court of Appeals by former Governor George Pataki and retired in 2016. When a judge grants or rejects appeals, they often don’t know which appeals other judges have granted, he noted.
NO ‘JUDGE SHOPPING’
Others think the docket shouldn’t grow too big.
“You don’t get the same quality of decision-making if you have too high of a caseload,” said Leslie Stein, who was appointed to the top court by former Governor Andrew Cuomo and left in 2021.
Because it’s hard to predict which judge will review a request, litigants cannot direct their appeal to the judge they think will be most favorable. “I like the fact that you can’t go judge shopping,” she said.
Though individual judges decide whether to hear each criminal case, the chief judge has historically been able to shape their colleagues’ perspectives — making Rowan Wilson’s ascension to that position last April a potential game changer.
Chief judges have historically taken different approaches. Jonathan Lippman encouraged judges to grant more appeals, while Judith Kaye urged doing so primarily in cases that could decide critical legal issues, according to former Judge Robert Smith, who served under both.
DiFiore, the last chief judge, oversaw a sharp decline in the court’s criminal docket. Her first year in the role, the court granted 48 criminal cases in 2016 — down from 86 the previous year under Lippman. That was the court’s peak during her tenure, according to a New York Focus analysis of court data.
That trend reversed after she resigned in 2022 amid an ethics investigation. Over the following 12 months, the court granted more appeals, even though it shrank to only six judges for most of the year.
‘WE WILL SEE A CHANGE’
If the increase becomes a trend, defense lawyers could become more aggressive in their appeals.
“If we see a trend where the court is receptive to more applications, then I do think that it’ll encourage more applications,” said Philip Desgranges, a criminal defense attorney at the Legal Aid Society.
The overwhelming majority of Court of Appeals applications come from defense lawyers, not prosecutors. In recent years, many have figured it’s not worth trying: The volume of applications has dropped by more than half since 2019.
Attorneys were disappointed with how few appeals were granted under DiFiore, said Susan Bryant, executive director of the New York State Defenders Association. “The hope is that under the new chief judge, we will see a change.”
The court’s caseload still isn’t back to pre-DiFiore levels, even with the recent bump. Under Lippman, who served as chief from 2009 to 2015, the court averaged over 80 criminal cases a year.
APPLICATION ANALYSIS
A return to that level may not be possible with the court’s current makeup. Several judges have been reluctant to grant more than a few appeals each year.
New York Focus analyzed the proportion of applications granted and rejected by the 22 judges who have served on the Court of Appeals since 2005. Garcia, Anthony Cannataro, and Madeline Singas, the court’s three most conservative judges, all rank in the bottom third. Since joining the court in 2021, Singas and Cannataro have granted five and six appeals, respectively. Of all judges in the last two decades, Garcia has rejected appeals most often — granting only 12 since he joined in 2016.
Judge Caitlin Halligan hasn’t granted any appeals so far, but she’s been on the court for less than a year, including its much less active summer months.
Even Wilson, who grants considerably more appeals than any other sitting judge, only ranks sixth among judges from the past two decades.
In fact, even if every judge began granting as many applications as Wilson has averaged — an unlikely scenario — the court’s annual criminal caseload would still be fewer than 60, well below Lippman-era levels.
— This story first appeared in New York Focus, a non-profit news publication investigating New York state politics. Sign up for their stories at nysfocus.com/newsletter.