An exterior view of the New York Court of Appeals...

An exterior view of the New York Court of Appeals building on June 1, 2016, in Albany. Credit: AP/Hans Pennink

ALBANY — If you’re a criminal defendant, it’s getting harder and harder to get New York’s top court to hear your case.

Further, your chances depend on which of the seven Court of Appeals judges is randomly assigned to review your case and determine if it should go forward — a system even some of the court’s retired judges are criticizing.

"There’s no doubt this has to change. It’s absurd," said Eugene F. Pigott Jr., who served as judge on the court from 2006-16, about the process for determining what cases get heard.

At issue is the steep decline in the number of criminal cases the Court of Appeals — which, despite its name, is New York’s highest court — is hearing under Chief Judge Janet DiFiore.

Court of Appeals judges have agreed to hear an average of 32 criminal per year over the last three years. Under DiFiore’s predecessor, Jonathan Lippman, the court typically greenlighted 75 or more cases annually, once hitting 93.

"That’s obviously not an accident when it’s that severe a plummet," said Vincent Bonventre, a professor at Albany Law School of Union University who studies the court. "Lawyers are fuming and it’s not just criminal lawyers.

The number of civil cases has plummeted, too. From averaging nearly 150 civil cases a year a decade ago, the average dropped to 61 over the last two years.

There's a different process for determining what civil cases get to the court. More judges in the review and it hasn't come under the same criticism as the process for criminal cases.

Gary Spencer, spokesman for the Court of Appeals, said it would not comment.

Several lawyers contacted for this story declined comment, citing potential cases before the court. The state District Attorneys Association declined as well.

The head of a criminal defense lawyers’ group said the shift was "certainly a concern."

"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."

The decrease also has put a spotlight on how the court decides to hear criminal cases.

The midlevel Appellate Division — four regional courts spread across the state — can refer cases. DiFiore, soon after taking over, pressed appellate judges to send fewer cases to the high court, according to the New York Law Journal.

But the overwhelming majority of the criminal cases come from decisions made by the Court of Appeals itself.

Under the system, defendants ask the court to hear their case. Prosecutors, who have lost a decision at a lower court, can make requests too, but they are far fewer. Typically, more than 2,500 requests are made annually.

The requests are randomly assigned among the seven judges and it’s up to that one person to say yes or no.

It’s a method that exposes stark differences among the active judges.

Over the last three years, Judge Rowan Wilson has greenlighted the most criminal cases, 30, according to Bonventre.

Judges Eugene Fahey and Jenny Rivera each approved 21 cases. Wilson and Rivera are considered the current court’s most liberal jurists.

Judge Michael Garcia, a former federal prosecutor and considered the most conservative on the bench, granted five; Recently retired Judge Leslie Stein, 6. DiFiore herself granted 10.

"If you want your case reviewed at the Court of Appeals and you happen to get Rowan Wilson to review your application, your chances are much, much better than if you get Michael Garcia," Bonventre said. "It’s terribly unfair."

Former judges say much the same.

"It’s fair to say it’s not a perfect system and if you were starting from scratch, you wouldn’t design it that way," said Robert S. Smith, who served on the court from 2004 through 2014. "I agree it’s not ideal because of the randomness of it."

Smith didn’t suggest a way to change it. He said judges are always going to have varying attitudes about appeals and added that most criminal appeals are denied because they simply lack merit.

Smith was considered a conservative but he routinely led the court annually in number of cases he approved to be brought before the full bench.

"I tended to say, ‘This is an interesting case, maybe we can clarify the law here," Smith said. "Even if I thought the guy was guilty, if I thought the evidence should be heard, I would" grant the appeal.

He said judges were always aware of how many grants their colleagues were giving and it was no coincidence that the chief judge’s approach set a tone.

"I do think it made a difference who the chief was," Smith said. "Leadership has an effect."

Some experts point out the decline under DiFiore mirrors a dip in the number of cases the court heard in the first decade of century when it averaged 40 cases annually under Chief Judge Judith Kaye.

But they also say that dip occurred after then-Gov. George Pataki, a Republican, criticized the court as too liberal and it began reviewing fewer cases in 2000. Prior to this period, the court annually heard many more criminal cases, sometimes around 100. When Lippman replaced Kaye as chief judge in 2009, the case volume increased dramatically, returning to what some call historical norms.

For example, the court heard 259 cases in 2013 under Lippman, combining civil and criminal cases. In 2020 under DiFiore, the court heard a total of 96. The difference can't be all attributed to the COVID-19 pandemic either — in 2019, the court heard 116 cases.

"The volume of cases under Lippman was much more in the mainstream of Court of Appeals history than under DiFiore," Bonventre said.

Pigott also was considered a conservative based on his decisions on cases but he was often near the top in allowing cases to be heard.

"If I had any doubt, I would grant leave," Pigott said, using the term for someone to bring their case to the full court.

Two years ago, Pigott gave a talk at Albany Law School advocating the system be changed. He said criminal cases should be treated the way civil cases are — where the methodology is different.

For civil cases, one judge is assigned the review and together, with his/her staff, makes a recommendation to the other judges to either grant or deny leave. If at least two judges vote to grant, the case will be heard by the full court.

"The benefit is the experience of seven judges as opposed to one," Pigott said. He said the rationale for the current difference in approach is the volume of criminal requests and the fact that a substantial portion of them are "pro forma" with little or no merit.

One case that exemplifies the arbitrariness of the system to scholars was that of Anthony Oddone, a Farmingville man initially convicted of manslaughter in the choking death of a bouncer at a Southampton bar.

Oddone asked the Court of Appeals to hear his case. The judge who was randomly assigned denied it. Then, his lawyer made a motion for reargument — which, this time, went to Pigott, who granted leave because, he said, it was clear there were legal problems with the case.

When the case was argued before the full court, seven judges unanimously ruled that errors by the trial court judge prevented Oddone from receiving a fair trial. The Court of Appeals vacated the conviction and ordered a new trial.

Instead, and at the urging of the family of the victim, Suffolk County prosecutors reached a deal in which Oddone pleaded guilty and was sentenced to time served.

So instead of serving 22 years as originally sentenced, Oddone served just over five — in part because Pigott was the judge randomly assigned to the review.

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