How to Take an Appeal as of Right to the Court of Appeals: The 2017-2018 Normal Course Appeals as of Right

It’s not often that you find a case that has the direct right to go to the Court of Appeals. Unlike the Appellate Division to which almost everyone has the right to appeal without permission, the Court of Appeals is a court of extremely limited jurisdiction. Precious few instances exist that give a party the right to go directly to the Court of Appeals without first seeking leave to appeal, either from the Appellate Division or the Court itself.  But, each term, a few cases find the rare jurisdictional hook to take an appeal as of right to the Court of Appeals.  Here’s how they do it.

Combing through the Court of Appeals’ new filings list shows that many, many appeals as of right are taken to the Court, but most are dismissed on the Court’s own motion. That is, once a notice of appeal is filed with the County Clerk where there case originated and a preliminary appeal statement is filed with the Court of Appeals, the Court Clerk’s office begins a jurisdictional inquiry to determine if the Court has jurisdiction to hear the appeal.

The first thing the Clerk’s Office looks for is whether the appeal was timely taken. Was the notice of appeal served within 30 days of service of the Appellate Division order with notice of its entry? (Ok, ok, so it’s really between 30 to 35 days depending on how the order was served). The notice of appeal was timely?  Great, let’s move on to the next step.

Second, the Clerk’s Office has to decide whether the Appellate Division order from which the appeal is taken finally determines the entire proceeding. Unless the case is truly over—meaning that there is no claim, counterclaim, cross claim, or anything else other than ministerial entry of judgment left for the courts below to do—the Court can’t hear the case. Say, for example, the plaintiff won on summary judgment at the Appellate Division, but no final award of damages has been entered.  That’s nonfinal, and the Court of Appeals can’t hear an appeal from a nonfinal order.  But, assume your case passes that hurdle to, and the Appellate Division order finally resolves the entire case.

Third, the Clerk’s Office dives into the Court’s jurisdiction. CPLR 5601 provides two main jurisdictional grounds for an appeal as of right to the Court of Appeals: (1) a double dissent at the Appellate Division on a question of law, and (2) the Appellate Division order decided a substantial constitutional question that was directly involved.

Often when the Clerk’s office gets this far, it will send out a letter inquiry to the parties, inviting them to explain the jurisdictional basis for the appeal as of right. This gives the parties a chance to weigh in and argue why the Court has jurisdiction to keep the appeal, rather than dismiss it for lack of jurisdiction. But, believe me, the response to the Court is not an easy one to write.  The Court’s jurisdiction is complex, and you need to know what resources can help you get the right answer. That’s when you turn to the person who knew the Court’s jurisdiction most intimately, Arthur Karger, and his treatise, The Powers of the New York Court of Appeals.

Let’s start with the double dissent at the Appellate Division under CPLR 5601(a). There are two requirements: (1) the double dissent has to be on a question of law, and (2) it has to be in the appellant’s favor. The second requirement usually isn’t that hard to satisfy. Dissenting justices usually would find in favor of the losing side who want to appeal. But, the first requirement is, at times, more elusive. For example, say you have two dissenters at the Appellate Division who disagree with how the majority weighed the evidence after trial. You have two dissenters, but no question of law because the weight of the evidence is an issue of discretion, not law. Same for if the dissent is based on an unpreserved issue. While the Appellate Division has interests of justice jurisdiction, the Court of Appeals does not. And if the majority and dissent agree on the applicable legal standard, but differ on the facts, that’s not a question of law either. So while many attorneys may jump at the sight of a dual dissent at the Appellate Division, it’s always important to take a closer look to make sure that its on a question of law before filing a notice of appeal as of right.

Next, if the Appellate Division order decides a directly involved, substantial constitutional question, CPLR 5601(b)(1) will also provide a jurisdictional basis to appeal as of right to the Court of Appeals. Although the requirements are easy to state (the constitutional question must be (1) directly involved and (2) substantial) , their application is much more difficult. For a constitutional question to be directly involved, it first must have been preserved both at the trial court and at the Appellate Division. A constitutional issue raised only at the Appellate Division, and reached as a matter of the Appellate Division’s interests of justice jurisdiction, is not enough. The constitutional question must also have been necessarily decided by the Appellate Division .  So, if the Appellate Division decided the case on a number of independent grounds, including nonconstitutional ones, the constitutional question is not directly involved for purposes of an appeal as of right.

Finally, what does it mean that the constitutional question is substantial?  Well, that’s a case-by-case decision by the Court. The question doesn’t need to be a winner, but it also can’t already have been decided against the appellant’s position. Otherwise, the Court generally looks at a number of things to determine substantiality, including “the nature of the constitutional interest at stake, the novelty of the constitutional claim, whether the argument raised may have merit, and whether a basis has been established for distinguishing a state constitutional claim (if asserted) from a federal constitutional claim” (The New York Court of Appeals Civil Jurisdiction and Practice Outline, at 4). Sounds easy, right? I didn’t think so.

Those are the two main bases for filing an appeal as of right to the Court of Appeals.  Others do exist, but are much too complicated for a quick discussion here. Now let’s take a look at the appeals as of right taken to the Court of Appeals during the 2017-2018 term that will be heard after full briefing an oral argument.

Normal Course Appeals as of Right

Matter of James Q.154 AD3d 58 (3d Dept 2017)

Question presented: Whether the Appellate Division erred in determining that the confidentiality provisions of the Mental Hygiene Law do not require the sealing of documents filed in a CPL 330.20 (9) civil commitment retention program, but that redaction of the records is required.

Supreme Court, Franklin County denied respondent James Q.’s motion to seal the record of the civil commitment retention proceeding.  The Appellate Division, Third Department modified by requiring the records to be redacted, but affirmed the Supreme Court order insofar as it denied the sealing request, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Save America’s Clocks, Inc. v City of New York157 AD3d 133 (1st Dept 2017)

Question presented: Whether the determination of New York City Landmarks Preservation Committee approving a Certificate of Appropriateness allowing owner of property to convert a landmark-designated clock tower into a private residence, and to convert the clock from a mechanical to an electrical system of operation, was arbitrary and capricious, and whether New York City’s Landmarks Preservation and Historic Districts Law (Administrative Code of City of NY § 25-301 et seq.) permits the LPC to require the property owner to allow continuing public access to interior landmark and if that constitutes an unconstitutional taking.

Supreme Court, New York County, granted the CPLR article 78 petition to annul the Certificate of Appropriateness issued by the LPC, which had authorized work on certain features of the designated interior landmark. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Mental Hygiene Legal Serv. v Daniels158 AD3d 82 (1st Dept 2017)

Question presented: Whether petitioner Mental Hygiene Legal Services has standing to bring article 78 proceeding seeking a writ of mandamus to compel respondent, acting director of Bronx Psychiatric Center, to provide copies of a patient’s complete clinical record in advance of a retention hearing pursuant to Mental Hygiene Law § 9.31(a), and whether the agency, in failing to provide Mental Hygiene Legal Service with a copy of the patient’s complete clinical record, violated its statutory obligation under Mental Hygiene Law § 9.31(b).

Supreme Court, Bronx County, denied the agency’s cross motion to dismiss the proceeding, and granted the petition to the extent of declaring that the agency’s failure to provide Mental Hygiene Legal Services with a complete copy of the patient’s so-called medical chart in any proceeding pursuant to Mental Hygiene Law § 9.31(a) violates its statutory obligations, and ordered the agency, in any action brought pursuant to Mental Hygiene Law § 9.31(a), to provide Mental Hygiene Legal Services with a complete copy of such medical chart prior to any hearing. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Williams v Beemiller, Inc.159 AD3d 148 (4th Dept 2018)

Question presented: Whether the exercise of personal jurisdiction over the defendant, an out-of-state dealer of firearms who sold a gun in Ohio that was transported to New York and used in a shooting that injured the plaintiff, under New York’s long-arm statute (see CPLR 302[a][3]) comports with federal due process, and whether jurisdiction over the defendant can be obtained under an agency or alter ego theory.

Supreme Court, Erie County, denied the motion of defendant Brown, the out-of-state firearms dealer, for summary judgment dismissing the first amended complaint against him. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the first amended complaint against Brown.

Jurisdictional predicate: Substantial constitutional question directly involved.

Vanyo v Buffalo Police Benevolent Assn., Inc., 159 AD3d 1448 (4th Dept 2018)

Question presented: In an action by a former police officer alleging improper termination following an arbitration that was conducted pursuant to collective bargaining agreement, whether Supreme Court properly dismissed the first and second causes of action alleged in the amended complaint as time-barred, whether relation-back doctrine of CPL 203(f) applies to the first and second causes of action, whether Supreme Court exceeded its authority in sua sponte dismissing original complaint with prejudice pursuant to CPLR 306-b, and whether defendants waived any objection based upon lack of service of the original complaint.

Supreme Court, Erie County, granted the motions of defendants to dismiss the complaint and amended complaint against them. The Appellate Division, Fourth Department affirmed, with two Justices dissenting in part.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Kosmider v Whitney160 AD3d 1151 (3d Dept 2018)

Question presented: Whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law (Public Officers Law art 6 [FOIL]), or whether they are exempt from disclosure.

Supreme Court, Erie County, among other things, granted the petitioner’s CPLR article 78 application to annul a determination of respondent Chairperson of the Essex County Board of Supervisors denying petitioner’s FOIL request for the electronic images of ballots. The Appellate Division, Fourth Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency161 AD3d 169 (3d Dept 2018)

Question presented: In a CPLR article 78 proceeding challenging the Department of Environmental Conservation’s approval of Essex Chain Lakes Complex Unit Management Plan, whether certain causes of action were ripe for judicial review, whether a rational basis exists for the determination of the DEC that the Wild, Scenic and Recreational Rivers System Act permits establishment of snowmobile trail on a road that is located in a wild river area, and whether Supreme Court properly dismissed the fourth cause of action on the basis that respondents are not bound by guidance document for the siting, construction, and maintenance of snowmobile trails that was adopted by the DEC in 2009.

Supreme Court, Albany County, dismissed the petitioners’ application, in a CPLR article 78 proceeding, to review a determination of the approving a plan permitting the construction of a new snowmobile corridor. The Appellate Division, Third Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Those are the appeals as of right taken to the Court of Appeals that will be heard next term in the normal course, with full briefing and argument. Next up in my summer series: the appeals as of right that the Court has decided to hear and decide on the sua sponte merits track. Stay tuned!

The Appellate Division Adopts New Uniform Rules of Practice Effective September 17, 2018

Under New York’s unique court structure, the Appellate Division is supposed to be a single statewide intermediate appellate court, broken into four different departments, where most appeals from the decisions of the trial court are finally resolved. But up until now, the four departments have functioned largely independently with rules of practice and customs unique to each.

Come September 17, 2018, however, all of the Departments of the Appellate Division will adopt a new set of uniform rules that will govern appellate practice in New York’s intermediate appellate courts throughout the State. Whether you’re before the First Department in Manhattan, the Second Department in Brooklyn, the Third Department in Albany, or the Fourth Department in Rochester, the rules will finally all be the same (for the most part).  That uniformity will make appellate practice so much better.

Here’s a quick look at some of the rules that are changing.

Perfecting Appeals

Before the new uniform rules were adopted, the Appellate Division departments had different time limits before an appeal would be dismissed as abandoned. In the First, Third, and Fourth Departments, the rule was if you don’t perfect your appeal within 9 months after serving the notice of appeal, the appeal would be dismissed as abandoned. In the Second Department, however, it was only 6 months.  The new uniform rules now provide that 6 months is the general rule.  The parties can, however, stipulate to extend the perfection date up to 60 days, and the appellant can thereafter apply by letter to extend the date another 30 days.  So, if the courts grant the extension requests, the date to perfect an appeal would be back to 9 months.


Under the new uniform rules, all of the Appellate Division departments have adopted maximum word counts for briefs (14,000 for appellant’s and respondent’s briefs, and 7,000 for reply briefs). Before, the Third and Fourth Departments had maintained page limits, while the First and Second Department had moved to word counts. The uniform rules also now require briefs to be set in 14-point font (12-point for footnotes), which is new for many of the Departments.  And with the new word limits and font requirements, the last page of each brief must contain a certification telling the Court the name of the typeface, point size, line spacing, and word count to ensure compliance with the new rules.

Best of all, by adopting the uniform rules, the Fourth Department has done away with its (annoying) “no footnotes of any kind in briefs” rule! It was about time.

Challenging Constitutionality of State Statute

A new provision in the uniform rules gives the Attorney General the right to intervene in any case challenging the constitutionality of a state statute to which the State is not already a party. To allow the Attorney General the opportunity to make the decision whether to intervene, the party raising the constitutionality issue in such a case will be required to serve its brief on the Attorney General. That’s a logical extension of CPLR 1012, which gives the Attorney General the same right in proceedings before the trial courts.

Oral Argument

If your brief doesn’t specifically state that you are requesting oral argument of the appeal, and request a specific time allotment, you will be deemed to have waived oral argument and to have submitted the appeal on the briefs. This isn’t really a new requirement, it’s just more clearly stated in the new uniform rules.  The uniform rules also preserve the rules in the First and Third Departments that rebuttal time will be permitted if requested by the appellant’s counsel at the beginning of argument.  No such luck in the Second and Fourth Departments. Both have kept their previous rules prohibiting rebuttal time. Too bad.

Local Rules Preserved

Ok, ok. So, some of the unique local practices of the Appellate Division departments have been preserved in the local rules of each department.  Like the First Department’s rule that an appeal has to be placed on the calendar by the appellate at least 57 days before the first day of the term for which the appeal has been set.  And the Second Department’s rule that rebuttal isn’t available during oral argument, as I mentioned. The Third Department’s local rules deal mostly with the unemployment insurance, workers’ compensation, and Sex Offender Registration Act appeals that are a unique part of the Court’s docket. The Fourth Department did its best to keep its brief cover color requirements (blue for the appellant, red for the respondent, and gray for the reply brief) through the change to e-filing.

All in all, adoption of a new set of uniform rules for the Appellate Division is yet another step in the right direction, after the courts earlier this year adopted mandatory e-filing for many appeals and then recently expanded the e-filing program.  The new uniform rules will make it easier to practice in New York’s appellate courts for attorneys and clients alike.  Anything that makes practice better is a good thing in my book.

The Appellate Division Expands E-Filing to New Categories of Appeals

The Appellate Division announced that it is expanding its e-filing system to include appeals in more cases.  As I discussed when the new Appellate Division e-filing system came online in March, it was a limited roll out, with the kinds of cases that are subject to mandatory e-filing limited in each of the Departments.  Here’s where the system started on March 1st:

The roll out has gone so well that the Second, Third, and Fourth Departments have recently decided to include more types of appeals that have to be e-filed.

Second Department

On July 2, 2018, the Second Department expanded its mandatory appellate e-filing to include all matters originating and electronically filed in Supreme and Surrogate’s Courts in Suffolk County.  To be subject to the mandatory e-filing, the notice of appeal has to be either dated on or after July 2nd, or if it’s dated before July 2nd, the appeal has to be perfected after August 15th. For appeals perfected before July 2nd, e-filing is not available.

So now, the Second Department’s e-filing system includes most appeals coming out of Westchester and Suffolk Counties.

Third Department

The Third Department has had the greatest expansion of the three. The Court decided that as of April 1st, appeals in civil actions commenced by summons and complaint in Supreme Court for the Fourth and Sixth Judicial Districts would be subject to e-filing.  The Court also included all matters that were e-filed in the trial court where the notice of appeal is filed after April 1st, and allowed all parties to consent to the appeal being e-filed as well, even if it wasn’t e-filed below.

On July 1st, the Court expanded the e-filing program to include all appeals in civil proceedings commenced by petition in Supreme Court, and transferred proceedings, where the notice of appeal is filed after July 1st.  That includes a huge swath of CPLR Article 78 proceedings against municipalities and state agencies, as well as many other special proceedings that weren’t previously included. The Court also included cases from  County Court, the Court of Claims, and Surrogate’s Court where the notice of appeal is filed after July 1st.

In all practical effect, the Third Department now requires appellate e-filing in pretty much every case.

Fourth Department

The Fourth Department expanded its mandatory e-filing program to include all appeals filed on or after July 1st in Surrogate’s Court cases.  It’s also launching voluntary e-filing for all cases that were e-filed at Supreme Court. That’s also a big expansion from the previous program that only allowed e-filing in Commercial Division appeals.

It’s a great sign to see the Appellate Division expand the categories of e-filed cases so soon after first rolling out the system in March.  The e-filing process remains the same, but now attorneys get a choice to e-file in most appeals.  Given the convenience that option offers, I would hope to see many attorneys take advantage.

Court of Appeals June Session: Arguments of Interest for June 7, 2018

The Court of Appeals finishes up the 2017-18 argument term with 4 arguments on the last day of the June Session. The cases vary wildly, from a Medicaid recoupment proceeding to a Justice Center finding of negligence against an intermediate care facility (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) does a statutory notice of Medicaid overpayment recoupment limit OMIG’s recoupment to the amount provided in the notice, or may OMIG continue to withhold funds until the upper limit of the unchallenged audit report is released; (2) did a municipality comply with a procedures necessary to dissolve a fire protection district pursuant to a resident-initiated referendum; (3) did the city civil court deprive a criminal defendant of his constitutional right to assistance of counsel by denying him the opportunity to provide closing arguments at the end of a bench trial; and (4) whether the Justice Center may substantiate a finding of negligence against an intermediate care facility without a corresponding finding that one of its supervisors or employees was negligent in the underlying incident.

No. 77    Matter of Anonymous v Molik

When one of your loved ones has to live in an assisted care facility because of a physical or mental disability, you want to know that the facility and its staff isn’t neglecting your loved one’s care. That what the State Justice Center for the Protection of People with Special Needs was created to oversee.  Created under the Social Services Law, the Justice Center investigates and responds to allegations of abuse and neglect of persons with special needs in facilities throughout the State.

In Matter of Anonymous, an allegation of neglect was made against an employee, a supervisor, and an intermediate care facility in St. Lawrence County arising from the sexual assault of a resident by another resident. Allegedly, the employee left the living room of the facility to attend to some laundry in the next room, and returned to find the assault in progress. After the Justice Center’s investigation, the Center found the allegations against the employee and the supervisor unsubstantiated because the facility did not have a policy that the employee could not leave residents alone in a common area, but found the facility negligent because this was the third incident of sexual assault by the same male resident and the facility failed to increase the level of his supervision.

After the finding of neglect against the facility was confirmed by an ALJ, and the Center’s director of administrative hearings, the facility brought suit, alleging that because the relevant Social Services Law provision only provides that the Justice Center may substantiate a “concurrent finding” of neglect against a facility only if the people responsible can’t be identified and it was a systematic issue that contributed to the neglect. Because the Justice Center identified the alleged responsible individuals here and didn’t find the allegations of neglect substantiated against the employee or the supervisor, the facility argued, the Justice Center lacked statutory authority to issue a finding of neglect against the facility.

The Appellate Division, Third Department agreed, and annulled the Justice Center’s finding of neglect. The Court held that, under Social Services Law § 493(3)(a), the only circumstance under which the Justice Center can substantiate a report of neglect against a facility or provider agency is where an incident of neglect has occurred but the subject can’t be identified. That wasn’t the case here, so the Justice Center lacked authority to substantiate the finding of neglect against the facility.

The Court of Appeals will now decide the scope of the Justice Center’s power to make findings of neglect against a facility.

The Appellate Division, Third Department’s order can be found here.

Court of Appeals June Session: Arguments of Interest for June 6, 2018

It’s the second to last day of arguments at the Court of Appeals before the two month summer recess, and the Court has four cases on the docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a criminal defendant’s guilty plea should be thrown out because the trial court never explained to him the  consequences of waiving indictment by grand jury; (2) whether the New York City Board of Health’s regulations requiring all kids in certain child care, pre-K, and kindergarten programs to get the flu vaccine exceeded the scope of the Board’s authority; (3) in fraud claims relating to failed residential mortgage backed securities, whether an insurer of the securities was required to show justifiable reliance and losses directly attributable to the fraudulent representations; and (4) whether statements made to FDA investigators during an investigation are protected by an absolute privilege from liability for defamation.

No. 64     Garcia v New York City Department of Health and Mental Hygiene

When you send your kids to day care, pre-K, or kindergarten, you know that they will get sick and bring home plenty of germs. You just hope those germs aren’t the flu. That would be a win.

To try to ensure that all kids in those programs won’t send home the flu, the New York City Board of Heath issued amendments to the New York City Health Code  to require that all children from 6 months to 5 years who attend child care and school-based programs under the jurisdiction of the City Department of Health and Mental Hygiene (DHMH) be vaccinated against the flu each year. Although there are exemptions for when a vaccine would be harmful to the child’s health and for parents’ religious convictions, and the programs can accept unvaccinated kids, the amendments require the programs to pay a stiff penalty per child for doing so.

Upon adoption of the amendments, a group of parents challenged the Board’s authority to adopt them and sought a permanent injunction against their enforcement. Supreme Court held that the Board had acted outside the lawful bounds of its power because the amendments were preempted by the Public Health Law, and enjoined application of the flu vaccine regulations.

The Appellate Division, First Department affirmed, albeit on different grounds.  The Court held that the amendments weren’t preempted because local governments may adopt stricter health standards than the state baseline. But, the Court held, under the factors set forth in the Court of Appeals’ decision in Boreali v Axelrod (71 NY2d 1 [1987]), the amendments exceeded the scope of the Board’s regulatory authority. The Court held that the amendments represent value judgments and exceptions not grounded in public health concerns because the rule doesn’t preclude unvaccinated children from attending the school programs. Instead, those children can still attend the programs if the schools simply pay a monetary fine. This doesn’t protect the public health, the Court held, and it was further evidence that the amendments went beyond the lawful bounds of the Board’s regulatory authority.

The Board and DHMH now ask the Court of Appeals to reverse the First Department’s order, and reinstate the amendments. They argue that the First Department impermissibly intruded on their discretionary authority to promulgate vaccine regulations. Now, the Court of Appeals will decide.

The Appellate Division, First Department’s order can be found here.

Court of Appeals June Session: Arguments of Interest for June 5, 2018

The Court of Appeals returns for its last argument session before the summer break on Tuesday, June 5, 2018. On the first day of the June Session, the Court has three criminal cases on the docket (the Court’s case summaries can be found here), involving the following issues: (1) whether the denial of a motion to quash in a criminal trial is appealable, and whether the Appellate Division properly granted the motion to quash based on the qualified protection for a journalist’s nonconfidential material; (2) whether the trial court’s failure to provide notice of the contents of two jury notes to the defense before a verdict was rendered constituted a mode of proceedings error; and (3) whether a jury note qualified as a substantive inquiry, which should have required application of the procedure required under People v O’Rama (78 NY2d 270 [1991]).

No. 58      Matter of People v Conrado Juarez; Frances Robles

In a brutal case of the sexual abuse and murder of a 4 year old, the Court of Appeals will hear arguments on whether the denial of a motion to quash a subpoena in a criminal case is appealable. Should the Court decide that it is, a really interesting question of journalistic privilege lies beneath.

For 22 years, the police were unable to identify the 4-year-old murder victim who was found in a picnic cooler in Manhattan in 1991. When she was eventually identified in 2013, the police questioned her cousin, Conrado Juarez, as the suspect. He confessed after hours of interrogation, and was charged with murder. Two days later, Frances Robles, a reporter with the New York Times, interviewed him at Rikers Island, but Juarez changed his story. Instead of participating in the murder, this time he said he only helped his sister dispose of the victim’s body after she fell down the stairs.

Juarez moved to suppress his confession as involuntary, and in response the police subpoenaed Robles to testify at the suppression hearing and for her notes. Robles moved to quash the subpoena based on New York’s Shield Law, Civil Rights Law § 79-h(c), which generally protects from disclosure the information reporters gather while investigating stories.

Supreme Court denied the motions to quash the subpoenas, balancing the interests in favor of the People’s access to all evidence that could go to show that Juarez’s statements were voluntary.  The Appellate Division, First Department reversed, and granted Robles’s motions to quash, holding

the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with ‘the consistent tradition in this State of providing the broadest possible protection to “the sensitive role of gathering and disseminating news of public events”‘…, we find that the People have not made a ‘clear and specific showing’ that the disclosure sought from Robles (her testimony and interview notes) is ‘critical or necessary’ to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]).

On appeal, however, the People now argued that the Court lacks jurisdiction to hear the case because a trial court order denying a nonparty’s motion to quash a subpoena in a criminal case isn’t appealable. The People’s argument is based on the Court of Appeals’ decision about one year ago in the Facebook search warrants case, where the Court held that denial of a motion to quash in a criminal case isn’t appealable, and the Court lacks jurisdiction to consider the underlying merits question.

Unless the Court decides to reconsider its prior precedent from only a year ago, which is highly doubtful, or decides that search warrants are somehow different from subpoenas in criminal cases, this case is going to end up just like the Facebook case, dismissed for lack of jurisdiction and remanded for the Appellate Division to do the same. That’s really unfortunate, but it seems to me unavoidable.

The Appellate Division, First Department’s order can be found here.


Bring Your Lunch to the Court of Appeals: A Conversation with Judge Leslie Stein

It’s not often that you get the chance to have lunch with a sitting judge of your state’s high court, much less in a group of just four other people. Lucky for me, that’s the kind of quality programming that the Albany County Bar Association provides. Last time, it was lunch with Justice Michael Lynch of the Appellate Division, Third Department. This time, the ACBA’s Brown Bag Lunch program brought me to the Court of Appeals for lunch with Associate Judge Leslie Stein. As always, it was a fantastic program. Here are just a few highlights of what we talked about.

Differences Between the Trial Bench, the Appellate Division, and the Court of Appeals

Judge Stein’s career on the bench has run the gamut. She began in the Civil Part of City Court, was then elected to Supreme Court, elevated to the Appellate Division shortly after that, and was appointed to the Court of Appeals three years ago. So what’s the biggest differences between her stops?

Besides the general complexity of the cases before her, which of course increased as she rose to the Appellate Division and now on the Court of Appeals, Judge Stein explained that the biggest difference between sitting in City Court and the Appellate Division and the Court of Appeals is learning how to make a collaborative decision on the cases you hear. While at City Court or Supreme Court, Judge Stein was the sole person responsible for the decisions in the cases she heard. She got to review the law, the facts, and decide the outcome that she thought was right every time.

Once she was elevated to the Appellate Division and especially now on the Court of Appeals, the decision-making process became much more collaborative. After oral argument, Judge Stein explained that all the judges on the case sit down at conference to discuss the issues and a possible result. In that discussion, the Judges have to convince each other of the right outcome, and no one Judge’s perspective can control.  You need at least 3 votes at the Appellate Division and 4 at the Court of Appeals to issue a decision, after all. There is much more give and take, and compromise about what the Judges are willing to agree to. That process, Judge Stein said, often leads to much narrower opinions on the relevant issues to get the agreement that the Court needs to decide a case.

The Use of Oral Argument Questions and Separate Opinions to Develop the Law

But when the Judges can’t all agree on a particular issue, Judge Stein said that questions at oral argument and writing separate opinions are often useful to help push the Court to reach agreement. In fact, oftentimes, the Judges go into oral argument with a few questions that are designed more to persuade their colleagues on an issue than they are to elicit a response from the advocates. And the Judges each have a good sense of which questions are which. The Judges have their own unique styles of questioning, Judge Stein told us, and when the questions are being used to persuade their colleagues on the Court, it’s pretty easy to see.

Judge Stein offered some important advice for advocates who argue before the Court. The Judges all know that you’re wrapped up in the particular facts and issues in your client’s case, but you have to be ready to answer the bigger question: “What rule would you have this Court adopt?” The Court wants to know where the line should be drawn not only for the particular case in front of it, but for all cases throughout the State. It’s sometimes surprising, she said, that attorneys come to argument unready to answer that question. Don’t let that be you (especially because if you’ve watched the Court’s arguments, the question about what the rule is comes up in almost every single one).

Judge Stein also told us that separate opinions can have the same persuasive purpose. About one week before the start of the argument session, each Judge is assigned to write an opinion on a case that will be argued at that term (this is a change from the Court’s prior practice where the Judges randomly were assigned writings at the conference immediately after oral argument concluded).  Thus, Judge Stein explained, when the Judges leave the bench after oral argument at the Court of Appeals, they know which cases they’ll be writing an opinion in, but not necessary whether that opinion will be for the majority or the dissent. After argument, the Judges head to conference, discuss the issues in each case, with the least senior Judge (now, Judge Feinman) beginning, and hold an initial vote on the case. If the Judge that has been assigned the writing has the majority, then he or she will write the majority opinion, and the dissent is assigned to the next least senior Judge who disagrees.

Many times, however, Judge Stein explained, the Judges who are writing the dissent write opinions that never leave the internal chambers of the Court. They are offered to persuade the majority to narrow its opinion as a part of the give and take process. The draft dissenting opinions are used for points of discussion among the Judges to see if they can reach a compromise on the issues. Many times, it works, the Judges agree to sign on to the majority, and the draft dissent is scrapped, having served its purpose.

But when it doesn’t, the dissent becomes part of the Court’s opinion, offering the bench and bar a different critique of the issues in the case. Judge Stein told us that dissents can also be valuable to signal when a Judge feels that the law should be changed, as Judge Rivera recently did in calling for a reexamination of the excited utterance exception to the hearsay rule in People v Cummings or Judge Wilson did in calling for the Court to interpret its jurisdiction to include the ability to dismiss an appeal as improvidently granted.

Concurring opinions can be used the same way, Judge Stein noted. When a Judge agrees in principle with the Court’s proposed result, but would use different reasoning to get there, he or she will use a concurrence to explain the difference. Or, as Judge Fahey did recently, to explain that the issues in the case are important and should be decided, but that this particular case is not the right one in which to reach them, and to signal to the bar to bring these issues to the Court in another case.  Much of what the Court does, Judge Stein said, is about the development of the law, and not necessarily just for the case in front of it.

The Process of Hiring Clerks

No discussion of the inner workings of the Court of Appeals would be complete without touching on the subject of those attorneys who help the Judges do their jobs. All of the Judges on the Court have different policies on who they will hire for clerks, what kinds of experience they’re looking for, whether they want permanent or rotating clerks, and whether they’re willing to hire clerks straight out of law school.

Although some Judges on the Court have exclusively rotating clerks for 2-year terms in order to get a fresh perspective in chambers, Judge Stein has traditionally had permanent law clerks, people she has grown to know well and who know her intellectual tendencies. That, she thinks, has worked very well for her over the years. But, just recently, Judge Stein hired a new clerk on a 2-year term commitment. So, she’s willing to reevaluate her stance and her new clerk, she said, is working out very well.

When we asked what she looks for in a potential clerk, she said that it’s important for the applicant to have at least 2-3 years of experience representing clients of some sort. That perspective is important to sort through the arguments that the attorneys in each case bring to the Court. The practical experience helps Judge Stein sort through the practical impact of the cases that the Court is deciding, which is always a consideration when the Court decides cases that affect the law statewide.

Judge Stein also looks for strong writers, of course, but importantly also someone who is willing to stand up to her and tell her when the clerk thinks she is wrong on the law. It’s ultimately the Judge’s call where her opinion comes out in a case, but the process of reaching that decision is strengthened when the clerks provide a strong point of view and don’t just agree with Judge Stein’s initial reaction.

Best of all, as we finished up lunch with Judge Stein, she offered to take us on a private tour of the Court, to see the detailed hand-carved woodworking throughout the courtroom, sit in the Judges’ chairs and look at the still existing spittoon underneath the bench, tour the robing room where the Judges get ready for argument before they enter the courtroom, see the two-story conference room and the “Cardozo” room where the decisions get made, and last but certainly not least, the Judges’ chambers on the second floor.

Not bad for a brown bag lunch. Not bad at all.  It was, in fact, as fantastic program, and many thanks are owed to the Albany County Bar Association for continuing to put this great programming on for its members and to Judge Stein for taking the time out of her busy schedule between sessions to host us.




For the First Time, Court of Appeals Issues a Separate Opinion While Denying Leave to Appeal

When the Court of Appeals grants or denies a motion for leave to appeal, it generally does so in a one sentence order that says “motion for leave to appeal denied” or “motion for leave to appeal granted.”

At most, the Court will issue paragraph explanations sometimes when it has to dismiss a motion for leave to appeal on a complex jurisdictional ground. And it does that only so the parties understand what is preventing the Court from deciding the motion for leave on the merits.

Yesterday, however, for what I believe to be the first time, the Court of Appeals published a separate opinion in denying a motion for leave to appeal (at least that’s what my brief Westlaw research seems to suggest). You’ll see that at the United States Supreme Court sometimes when a Justice disagrees with the denial of certiorari and writes separately to explain why. But I’ve never seen it at the Court of Appeals.

In this case, Judge Eugene Fahey wrote separately to concur in the denial of leave to appeal in the so-called chimpanzee habeas corpus case. In that case, an animal rights group sought a writ of habeas corpus to free two captive chimps, Tommy and Kiko, from private owners who are keeping them in small cages within the State. Judge Fahey explains that if the Court were to grant leave, he would vote to affirm because the habeas had already been sought and denied on the chimps behalf, and two successive writs can’t be sought under the CPLR. So, he concurs in the denial of leave to appeal.

But, that’s not the end of his thoughts. Instead, Judge Fahey explains, the question of whether habeas corpus can be available for the release of a non-human animal will have to be addressed at some point.  And he offers an approach for how that question should be answered:

The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species. I agree with the principle that all human beings possess intrinsic dignity and value, and have, in the United States (and territory completely controlled thereby), the constitutional privilege of habeas corpus, regardless of whether they are United States citizens, but, in elevating our species, we should not lower the status of other highly intelligent species.

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by self-initiating intentional, adequately informed actions, free of controlling influences.

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (Fahey, J., concurring, at 4-5).

Whatever Judge Fahey’s thoughts are on the availability of habeas corpus for chimps and other animals, it is significant that the Court of Appeals seems to moving in the direction of explaining its work. A separate opinion on a motion for leave to appeal can signal to the bench and bar that a case may present important issues, but that it’s not the right vehicle for deciding those issues. It’s a welcome addition to the work of the Court.

The Court of Appeals’ motion decision can be found here.

Court of Appeals Gets “Cleaned Up,” and Also Decides an Identity Theft Case

When a thief, or these days a hacker, steals your credit card and uses it, most people call that identity theft.  The New York criminal statutes, however, haven’t been so clear about whether the use another’s personal identifying information, such as their name, bank account, or credit card number, is enough to show that the criminal has assumed the person’s identity. The Appellate Division, First Department has said that merely using another’s personal information, without more conduct actually assuming the person’s identity, isn’t enough for an identity theft conviction. The Fourth Department, on the other hand, disagreed and said that it was.

The Court of Appeals, resolving this conflict, held in People v Roberts (No. 42) and People v Rush (No. 43) that the statutory language of the identity theft statute is clear: use of another’s personal identifying information alone is sufficient for a conviction.  The statute, Penal Law §§ 190.79 and 190.80, is pretty clear. It provides that a person is guilty of identity theft:

“when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby . . . commits or attempts to commit [a felony]” (Penal Law §§ 190.79 [3]; 190.80 [3]).

Using the personal identifying information of another person is enough for a conviction. As Judge Rivera writing for the majority put it:

To establish identity theft in the first or second degree, the People must establish as the mens reathat the defendant knowingly and actually intended to defraud by the actus reusof assuming the identity of another. The statute expressly limits the manner by which a defendant assumes the identity of another to three types of conduct: by presenting oneself as that other person, acting as that other person, or using that other person’s personal identifying information.3Contrary to defendants’ argument, the requirement that a defendant assumes the identity of another is not a separate element of the crime. Rather, it simply summarizes and introduces the three categories of conduct through which an identity may be assumed. In other words, the “assumes the identity of another” language is the operational text that sets forth the actus reusof identity theft, while the three types of acts listed are the legislatively-recognized methods by which a defendant satisfies that element (Opn, at 12).

But what’s really the most important part of this opinion is not what’s in the majority, but what’s in Judge Wilson’s separate opinion concurring in part and dissenting in part. On page 6 of Judge Wilson’s writing, he does something that has never before been seen in a Court of Appeals opinion. He uses the citation signal “cleaned up”:

What’s (cleaned up), you ask? Created by Jack Metzler (@SCOTUSPlaces on Twitter), it’s a now relatively established way for attorneys to indicate in their writing that they’ve altered the form of a quote without changing its substance, and without the overly cumbersome parenthetical that you used to have to include, like (citations, quotations marks, and alteration omitted). It can also be used to eliminate unnecessary string cites to citing or quoting authority in the case you’re citing or quoting. Jack’s piece explaining the need for and use of (cleaned up) can be found here.

With Judge Wilson’s use of “cleaned up,” the Court of Appeals joins a long list of other Courts across the country, including the Fifth Circuit and others, adopting this new approach to clarifying legal writing. Now, it’s time for New York to formally adopt it in the Tan Book to make this exciting event a staple in appellate work and opinions across the entire state.

The Court of Appeals’ opinion can be found here.

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