An Opening for Defendants’ Rights on New York’s Highest Court

The court’s last term included a slew of cases rolling back defendants’ rights. Progressives hope to reset that trajectory.

Chris Gelardi   ·   July 14, 2022
The Court of Appeals and then-Governor Andrew Cuomo in 2016 | Governor's Press Office

The New York Court of Appeals, the state’s highest court, ruled this year that a cop can continue interrogating a suspect alone even after the person asks for a lawyer, so long as they don’t ask forcefully enough.

It decided that prison authorities can keep someone behind bars past their maximum sentence if the person can’t find an appropriate place to stay after they’re released.

It limited defendants’ right to ask experts to testify on false confessions at trial.

And it concluded that an unhoused person soliciting money — without directly approaching anyone — with a misleading sign is guilty of fraudulent “accosting.”

These are just a few of the decisions handed down this past year by a new majority bloc of conservative judges on New York state’s top court. As New York Focus reported last week, the four-member conservative faction on the seven-judge court formed last year, when former Governor Andrew Cuomo, shortly before resigning in scandal, appointed two of its members to the bench. And it was slated to steer the Court of Appeals in a rightward direction for at least another three years.

But the bloc will only last — at least in its current iteration — for a few more weeks. In a surprise announcement Monday, Janet DiFiore, chief judge of the Court of Appeals since 2016 and the leader of the conservative faction, declared that she will be stepping down from her post at the end of August. (She has said little about her reasons for stepping down, but shortly after her retirement announcement, Law360 reported that DiFiore is facing an ethics probe for interfering in the disciplinary process of a court officer rival.)

During the last judicial session, DiFiore and fellow Cuomo appointees Michael Garcia, Anthony Cannataro, and Madeline Singas voted in tandem in — and thereby controlled the outcome of — all but two of the 98 cases. That level of ideological cohesion is unmatched by even the conservative supermajority US Supreme Court, whose recent decisions on abortion rights, election law, and gun control have thrown national politics further into disarray. In New York, the bloc recently handed down a slew of civil orders favoring corporations and landlords over employees, consumers, and tenants, and, in a 4–3 decision, issued one of the most controversial rulings in recent years when it decided that Democrat-drawn congressional and state legislative maps were unconstitutionally partisan.

The court’s right-leaning orientation has been put on especially stark display in its criminal docket, where, echoing recent Supreme Court decisions, it has issued several rulings that could severely limit the rights of those caught up in the criminal-legal system and give its various arms — from prosecutors to judges to jails and prisons — a pass when they violate defendants’ rights.

Now, with DiFiore’s resignation and the state’s and nation’s eyes on judges, progressives see an opportunity to balance the court and set it on a trajectory more friendly to defendants.

Fewer Cases, More Rulings Against Defendants

A notable feature of the Court of Appeals under DiFiore has been the decreasing number of cases it has taken on. In a sharp departure from her predecessor, DiFiore began her tenure as chief judge by repeatedly discouraging lower appellate courts from sending cases up to the Court of Appeals, preferring to control what went on her court’s docket, according to testimony from appellate judges at the time.

Criminal cases were no exception. From 2017 through 2021, the DiFiore court averaged 49 criminal decisions a year, the fewest of any five-year average in at least 35 years, according to data compiled by Albany Law School professor Vincent Martin Bonventre. In 2020, the court issued 42 criminal decisions, tied for the fewest among any year in Bonventre’s data.

According to Sam Feldman, an appellate public defender, that makes it harder for the judiciary to function well across the state. “The court has a very important function, both in verifying the law statewide, but also in correcting a lot of errors from lower courts,” he said.

“The lower courts often resolve an issue in one sentence,” Feldman said. “Cases get a lot more attention at the Court of Appeals. There’s a lot more focus on complicated legal issues.”

But in the past year, the court has also taken to handing down criminal decisions with only cursory explanation, including in cases with high stakes for defendants’ constitutional rights.

In one case decided in June, the conservative bloc plus Judge Shirley Troutman, the lone appointee of Governor Kathy Hochul and the closest thing to a swing vote on the court, offered a two-sentence justification for ruling that the state’s prison and parole agency was justified in holding a man in prison for nine months after his maximum sentence.

As part of a plea deal, Amin Laboriel, who was convicted of a sex offense, was sentenced to three years in prison and then five years of supervision, similar to parole. Under state law, people convicted of sex offenses under post-release supervision are required to find housing compliant with New York’s Sexual Assault Reform Act, which, among other provisions, forbids them from living within 1,000 feet of a school. But the housing Laboriel had lined up, which he submitted to the department while he was incarcerated, didn’t comply. So instead of releasing him when his three years was up, officials sent him to another prison.

Laboriel argued that his continued incarceration violated his due process rights, and that his overall sentence should have been reduced since he was incarcerated for longer than his plea agreement stipulated. He also argued that the state should have either helped him in his effort to find compliant housing in his hometown of New York City — a task other judges have described as “virtually impossible,” given the city’s density — or released him to a homeless shelter. But without explanation, the conservative bloc disagreed.

In refusing to elaborate on its reasons for ruling against Laboriel, the conservative bloc turned down an opportunity to address an issue that has long plagued incarcerated people in New York. And without acknowleding it, its decision seemingly overturned a recent lower court decision: In 2017, a New York appellate court ruled that the state must help people incarcerated for sex offenses find complaint housing.

The Laboriel verdict isn’t the only time the new majority has contradicted previous decisions with little explanation. In a case decided in May, the court ruled against Cesar Garcia, who had requested a jury trial for three class B misdemeanor charges. Such misdemeanors aren’t normally given a jury trial, but defendants can request one if they can convincingly argue that a conviction would result in serious consequences for them.

In 2018, the Court of Appeals itself granted a man’s request for a jury trial because he wasn’t a US citizen and a conviction would put him at risk of deportation. Garcia was in a similar position: He asked for a jury trial because his misdemeanors would likely fall under an ill-defined aspect of immigration law that renders non-citizens deportable if they’re convicted of “crimes of moral turpitude.” But unlike the 2018 case, the majority bloc — plus Troutman, and with Singas temporarily replaced by a lower court judge — ruled against Garcia, asserting in a three-paragraph decision that his explanation that he could be deported wasn’t convincing enough.

Before the Court of Appeals published its decision, Garcia was convicted of one of the misdemeanors and subsequently deported,  Judge Jenny Rivera noted in her dissent.

Narrowing Defendants’ Rights

The Garcia case illustrates another theme of the majority bloc’s decisions in criminal cases: The judges have repeatedly used narrow readings of defendants’ statements to uphold their convictions, in what critics say can amount to penalizing them for not being articulate enough.

In February, the court ruled against Vladimir Duarte, who wanted to represent himself in a criminal case — known as going “pro se,” a move defendants are entitled to make as long as they are deemed competent to do so.

During a hearing, Duarte asserted that his court-appointed defense attorney was ineffective. The judge disagreed, and denied his request for a new lawyer, at which point Duarte stated, “I would love to go pro se.” The judge went on with the scheduled hearing without entertaining Duarte’s request to represent himself.

Duarte argued to appellate courts that the judge improperly ignored his request to go it alone, and liberal judges Rivera and Rowan Wilson agreed, with Rivera describing his assertion as a “clear and unequivocal statement.” But the conservative bloc disagreed. In a one-paragraph decision, it concurred with a lower court that his statement did “not reflect a definitive commitment to self-representation.”

A few months later, as New York Focus reported in May, the conservative bloc plus Troutman ruled against 19-year-old Malik Dawson, who argued that an apology note he wrote to an alleged sexual assault victim was inadmissible in court because a cop had him write it without his lawyer present, even though Dawson had effectively asked for his lawyer.

“I just wish that I’d memorized my lawyer’s number. He’s in my phone. Is it possible for me to, like, call him or something?” Dawson told the cop in an interrogation room after being arrested, according to a dissent from Wilson.

“From the sound of it, it sounds like you understand your [right to a lawyer] and you want your attorney,” the officer said. He told Dawson that he would go get his phone. But instead, he left the room, came back without the phone, and gave Dawson two options: He could call his lawyer, or they could “just figure this out.” The officer then told Dawson that it would help his case if he wrote the apology letter.

Given the facts of the encounter, the majority ruled that Dawson did not evoke his right to a lawyer “unequivocally” enough, and thus the cop was free to continue interrogation.

According to Feldman, rulings like Duarte and Dawson illustrate the indirect power state courts have to define defendants’ rights, and the extent to which a conservative court can roll them back.

“It’s not up to the Court of Appeals whether people have [the right to have an attorney present during interrogation] or the right to represent themselves pro se. That kind of thing is still up to the Supreme Court,” Feldman said. “But they can, through these procedural decisions, effectively narrow these rights.”

A Defender on the Court?

Some of the recent Court of Appeals rulings against defendants mirror recent US Supreme Court criminal rulings.

In one parallel to Laboriel, the Supreme Court restricted the avenues for relief available to incarcerated people whose constitutional rights were violated, while in another, it narrowed prisons’ responsibility to assist incarcerated people in gathering evidence to challenge their convictions.

Similar to Garcia, in immigration law cases, the Supreme Court issued two hugely consequential decisions for people languishing in indefinite immigration detention, finding that they aren’t entitled to bond hearings and that lower courts can’t grant mass relief to immigrants challenging their confinement.

And in a direct parallel to the Dawson decision, the Supreme Court ruled in June that police’s violation of one’s right to have an attorney present during questioning “does not necessarily constitute a violation of the Constitution,” and thus people are not permitted to sue the government if that right is violated. In The Nation, judicial columnist Elie Mystal described the decision as “functionally overturning Miranda,” the 1966 Supreme Court ruling that codified the “right to remain silent.”

“I couldn’t invent a better example of the difference between a Supreme Court controlled by conservatives versus one controlled by liberals,” Mystal wrote.

The Supreme Court (and federal courts in general) has taken an increasingly conservative approach to criminal justice issues — as recognized by President Joe Biden, who recently appointed Ketanji Brown Jackson, the first former public defender to sit on the Supreme Court in a generation. As of 2020, only about 1 percent of all federal appellate judges spent the majority of their careers as public defenders or legal aid lawyers, according to a report from the Center for American Progress.

That trend extends to state courts, including the New York Court of Appeals. Four of the top court’s current members are former prosecutors, while none have significant experience as defense lawyers.

It’s unclear whether Governor Hochul – who will nominate a replacement for DiFiore from a shortlist compiled by a special state body — will try to change that. Hochul’s only current Court of Appeals appointee, Troutman, is one of the former prosecutors, and the governor nominated her despite calls from legislators to choose someone with defense experience.

Left-leaning legislators and activists are already mounting a campaign to pressure Hochul to nominate a progressive this time around. Senator Alessandra Biaggi, a member of the Judiciary Committee, said that “there has never been a more urgent time” for Hochul to nominate a progressive and public defender.

Right-leaning voices are pushing back: Yesterday, the New York Post Editorial Board accused the left of orchestrating a “smear campaign” against DiFiore, as part of “a clear progressive drive to bully Gov. Kathy Hochul into choosing a far-left successor.”

Peter F. Martin, judicial accountability project director at the Center for Community Alternatives, argued that the politics of the moment are ripe for a push to rebalance the court. In addition to the recent decisions by the Supreme Court — which he describes as “eager to destroy decades of legal precedent and eager to destroy countless individual rights” — Martin argued that the last year has made it clearer to both progressive and centrist Democrats that the Court of Appeals has been headed in a direction at odds with their priorities.

One indication that Martin might be right: After DiFiore’s resignation, Deputy Senate Majority Leader Mike Gianaris, who had urged his colleagues to vote for Singas’s appointment last year, called for a “recalibration” of the court. Speaking to New York Focus, he called his support for Singas a “mistake” that moved the court “in the wrong direction.”

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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