We begin by extending our congratulations to Judge Rowan Wilson on his confirmation as Chief Judge of the Court of Appeals and to Caitlin Halligan on her confirmation as Associate Judge to fill the vacancy left by Judge Wilson’s accession to Chief Judge. The 2022 annual report has a foreword by Judge Anthony Cannataro, who temporarily led the court since Sept. 1, 2022, when former Chief Judge Janet DiFiore resigned. Judge Cannataro’s foreword notes the retirement last April of John P. Asiello, Chief Clerk and Legal Counsel, after 40 years of “quiet brilliance” during his service at the court, and the succession of Lisa A. LeCours, who assumes the position after “more than 22 years of invaluable experience in Chambers and in the Consultation Clerk’s Office.”
Like those of her predecessors, LeCour’s report is full of information that will be of interest not only to appellate practitioners and dedicated court watchers, but to anyone seeking to learn about the role and operation of our state’s highest tribunal at a time when the governor’s appointment of a new Chief Judge and an Associate Judge has been a much-publicized matter of public interest and debate. The report, written in an easy-to-read narrative style, describes the work of the court and includes a summary of significant 2022 decisions, reflecting the range of constitutional, statutory, regulatory and common law issues decided by the court each year, and a wealth of statistical information presented in appendices that present a detailed analysis of all aspects of the court’s work during 2022 and the prior four years.
In 2022, the court decided 91 appeals (60 civil and 31 criminal), a modest but welcome increase from the low of 81 decided in 2021; it is reassuring to note that during his confirmation hearing Judge Wilson agreed that the court’s docket is too low. During the 22-year tenure of Chief Judges Kaye and Lippman, average total dispositions were virtually the same, 220 under Kaye and 233 under Lippman. See Newman & Pelzer, “Declining Dispositions of the Court of Appeals,” 85.4 Albany L. Rev. [2022]. The sharp decline occurred under Chief Judge DiFiore’s watch (Jan. 1, 2016-Aug. 31, 2022); she had requested the justices of the Appellate Division to allow the court to select for itself those appeals it wants to hear. Judges Wilson and Halligan favor the grant of leave by the Appellate Divisions and disagree with Judge DiFiore’s statements discouraging grants of leave by the Appellate Division.
Of the 60 civil appeals decided by the court in 2022, the jurisdictional predicate for 31 was permission of the Court of Appeals, 13 permission of the Appellate Division, nine, two dissents at the Appellate Division, four, a constitutional question was involved, and three others. Of the 31 decided criminal appeals, 20 were by permission of a judge of the Court of Appeals, 10 by permission of a justice of the Appellate Division and one on remand from the U.S. Supreme Court. Of the 60 decided civil appeals, 33 resulted in an affirmance, 19 reversal, three modification andfive dismissal and “other.”
Of 1,474 criminal leave applications made to individual judges of the court, only 33 were granted (2.24%); 79 were dismissed for lack of jurisdiction (5.36%) and nine withdrawn (0.06%). While only a few criminal leave applications were granted in 2022, the majority of defendants whose appeals were heard and decided fared well. Of 31 criminal appeals decided in 2022, 17 were affirmed (54.8%), 13 reversed (41.9%) and 1 modified (3.2%). Criminal defendants have done much better since last September under Acting Chief Judge Cannataro with 11 reversals (64.7%) and six affirmances (35.3%), and are likely to continue to do so under Chief Judge Wilson’s leadership. The People fared much better than criminal defendants when seeking leave to appeal. In 2022, five of 45 applications made by the People were granted (11.11%). Such applications were disposed of relatively quickly, taking an average of 65 days from assignment to a judge to disposition.
In 2022, 67 appeals (73.6%) were decided in normal course, after full briefing and oral argument, 24 (26.4%) were decided after sua sponte merits review (SSM) on the record and briefs in the court below, written submissions and without oral argument; of the SSM cases, 13 were civil and 11 criminal.
The court continues to be very prompt in its disposition of appeals; for normal course appeals, the average time is 34 days, for all appeals the average is only 26 days. The time from notice of appeal to decision for normal course appeals is 16.5 months, while for all appeals, including those decided pursuant to the Rule 500.11 SSM procedure, those dismissed pursuant to Rule 500.10 SSD inquiries, and those dismissed pursuant to Rule 500.16 (a) for failure to perfect, the average was 5 months, the same as in 2021.
As for writings during 2022, 50 of the appeals decided had a signed majority opinion, 32 a memorandum and nine only a decision list entry; there were 40 dissents and two concurring opinions. By way of contrast, while Judge Cannataro was Acting Chief Judge, the court’s decisions showed a welcome trend toward more unanimity with fewer dissenting opinions.
During that time, the court decided a total of 41 appeals, 24 civil and 17 criminal. Those appeals generated 27 signed majority opinion and only 8 dissenting opinions (four by Judge Wilson). Nine appeals were decided with only a brief memorandum, four of which had been selected for the court’s alternative Rule 500.11 SSM procedure where “such appeals shall be determined on the intermediate appellate court record or appendix and briefs, the writings in the courts below and additional letter submissions on the merits.”
Of the 765 motions for leave to appeal in civil cases made in 2022, only 27 were granted (3.5%), 518 denied (67.8%), 214 dismissed (27.5%) and 6 withdrawn (0.08%). The average time from return date of the motion for leave to disposition was 95 days; the average time for disposition of all motions was 83 days. Although a movant for leave to appeal in a civil case has only a slight chance of having the motion granted, if leave is granted by the Court of Appeals, the chance of appellant obtaining a reversal or modification rises to 38.7% (12 of 31), and if permission was granted by the Appellate Division, to 38.4% (five of 13). Where the jurisdictional predicate was two dissents on a question of law at the Appellate Division, only 22.2% resulted in a reversal (two of seven). Four appeals taken as of right on the basis of a constitutional question (CPLR 5601[b]) resulted in one affirmance, two reversals and one modification. No appeals were decided where the jurisdictional predicate was a stipulation for judgment absolute (CPLR 5601[c]), the appellate version of Russian roulette, with probably even a lower chance of survival.
As in past years, motions for reargument continue to be made and are denied. In 2022, 17 were made and all denied, During the last five years, 110 such motions were made and none was granted. To make such a motion is an exercise in futility.
Deciding appeals is not the court’s only work. The court has exclusive jurisdiction to review determinations of the State Commission on Judicial Conduct and to suspend a judge when the Commission has determined that removal is the appropriate sanction or the judge has been charged with a felony. Two judges were suspended by the court in 2022. The court dismissed one request for review and one request remained pending at the end of 2022.
The court also passes on certifications under Rule 500.27 from the U.S. Supreme Court and any U.S. Courts of Appeal, or a court of last resort of any other state, that determinative questions of New York law are involved in a case pending before that court for which there is no controlling precedent. The court decides whether to accept the case, in which case it will be treated as any other appeal. The court accepted three certified questions in 2022 and answered two. At the end of 2022, three certified questions remained pending.
Last year, the court also decided 582 petitions seeking waiver of the Court’s Rules for Admission of Attorneys and Counselors at Law.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
