Court of Appeals update, 2000 & 2001: conservative voting, narrow rulings.

• Author: Bonventre, Vincent Martin
• Position: New York

1. INTRODUCTION

   The necessity of expressing a view contrary to that of the majority of one's colleagues must be kept in check and reserved for limited applications. [But,] differences of opinion are common in the conference room. They are the stuff of which a majority is made.... Of course, there will be times when matters of high principle are at stake and deeply held differences need to be aired--to fail to do so diminishes the competing views.

   --Court of Appeals Judge Richard C. Wesley, on dissents. (1)

   Judge Wesley's point is precisely why divided decisions are so revealing. It is why judicial scholars look to decisions with dissenting and concurring opinions to gain clues about a court's individual members and, ultimately, about a court as a collective whole. Divided decisions reveal the dissenters' and separate concurrers' "high principle[s]" and "deeply held differences," as Judge Wesley put it. Likewise, those decisions reveal what the majority of a court necessarily rejected or subordinated to other considerations.

   At least since Herman Pritchett's seminal writings sixty years ago, (2) scholars have recognized that divided decisions provide a window into a court's "inner sanctum." (3) Unanimous decisions are "more compromise than conviction." (4) A court's unanimous opinion is more likely to be a "negotiated document[]." (5) Even where signed by one member of the court, it is more likely "the product of many minds." (6) Hence, unanimous opinions do not necessarily shed light on the signed author's own views of the law, the case, or its policy implications; and whatever light might be shed, cannot be relied upon with much confidence as reflective of that judge's own judicial philosophy, jurisprudence, or actual position taken behind the closed conference doors.

   Moreover, as Judge Wesley noted--and as previously told by Judge Hugh Jones in whose memorial lecture Wesley was speaking--many internal dissents and disagreements, expressed in conference and deliberation among the members of a court, never see the light of day. Many internal dissents are withdrawn, many conference disagreements are withheld, and the result is an opinion for the court which conceals actual differences among its members. (7)

   For this reason, the emphasis here is on divided decisions. The purpose is to discern patterns, differences, and emerging trends among the Judges of the New York Court of Appeals and, by cumulation and extrapolation, of the court itself. In that sense, this article represents a continuation of an ongoing examination of New York's highest tribunal--an examination that relies on the voting records of its individual members, as well as their written expressions. (8) It focuses on issues that divided the court publicly and which, consequently, required each judge to choose between opposing positions openly stated.

   Specifically, this article examines public law developments at the Court of Appeals in the years 2000 and 2001. It is an update to the aforementioned previous studies and, most immediately, to the Bonventre-Hiller article published in the Albany Law Review State Constitutional Commentary last year. (9) Every case that divided the court on a question of criminal justice or civil rights, civil liberties, and equivalent public protections is considered. (10) Part II of this article examines decisional highlights of the court to ascertain developments, patterns, and trends, in both criminal and civil cases, involving individual rights and liberties and analogous claims against government or for government protection. Part III examines the voting records of the judges to discern ideological or jurisprudential patterns and to determine the judges' respective positions within the court's philosophical spectrum and the contrasts among them. Part IV concludes the article with a summary of the voting patterns and decisional trends of the court as a whole.

2. CASE HIGHLIGHTS FOR 2000 & 2001

   During the two-year period 2000-2001, the Court of Appeals decided twenty-three appeals in which its members were divided--in published opinions, not only internally--on an issue of public law. In more than half of these cases, only one judge expressed disagreement with the court's opinion. In four cases, the court was split 4-3. (11) But regardless of the number on each side, the respective authors of the dissents and separate concurrences were typically forceful, even passionate, about disagreement with the majority.

   Of the fourteen criminal justice issues that divided the judges, a majority of the court adopted the more pro-prosecution position eleven times, or on 79% of the issues. (12) The court's record in civil cases was somewhat less lopsided. Regarding the nine such issues that divided the court, a majority rejected the claim of individual right or liberty or other public protection six times, or on 67% of the issues. (13) In both the criminal and civil realms during the period studied, the court's record, in common parlance, continued to be quite conservative. (14)

   1. Criminal Cases

      In People v. Santorelli, Chief Judge Kaye, writing for the majority, rejected the defendant's claims that the alleged Brady, Rosario, and Antommarchi violations constituted reversible error. (15) In lone dissent, Smith disagreed with the majority's ruling on the Antommarchi issue. (16)

      Under Antommarchi, a defendant's right to be present at all critical criminal proceedings includes being present at sidebar discussions during jury selection. (17) In Santorelli, the prosecution contended that the defendant waived his Antommarchi right by making a gesture toward the judge, the defense counsel, and the prosecutor indicating that he did not wish to be present. (18) The trial record did not reflect any such gesture, but the trial judge corroborated the prosecutor's contention that it had occurred. (19)

      Additionally, both the defendant and his counsel swore under oath that the defendant had never been advised of his right to be at the sidebar. (20) Counsel also swore that he had waived the defendant's right without consulting him--a violation of Antommarchi. (21) In light of the apparently conflicting recollections, as well as a trial record blank on this point, Judge Smith argued in his dissenting opinion that the case should be remanded for a hearing to determine what had actually happened, and, thus, to determine whether the defendant had actually waived his Antommarchi right. (22)

      In People v. Rojas, Judge Smith was again in lone dissent, disagreeing with the majority's dismissal of the defendant's claim of evidentiary prejudice. (23) In Rojas, the trial court allowed the prosecution to present testimony of an alleged prior crime. (24) The majority, speaking through Judge Rosenblatt, agreed with the prosecution that the defense had "opened the door to this proof based on a combination of [counsel's] opening statement and cross-examination of a prosecution witness." (25)

      In opening, counsel had argued that the defendant should be acquitted of assaulting a prison guard, because the defendant had "done nothing wrong, [and yet] ... was abused and mistreated, culminating in a scuffle with guards who surrounded him in his cell." (26) Judge Rosenblatt construed this as a defense "strategy," bolstered by "cross-examinations to further the impression that the guards were not performing a lawful duty in supervising the [defendant's] exchange of his clothing." (27) Viewing the defense counsel's opening statement and cross-examinations as misleading, and viewing the defense argument on appeal as attempting to "convert[] the shield of the preclusion order into a sword," the majority held that it was permissible for the prosecution to introduce evidence about the defendant's alleged act of stabbing an inmate, in order to refute the defendant's claim that he "had done nothing wrong." (28)

      Judge Smith disagreed that the defense counsel had misled the jury or otherwise opened the door to testimony about the defendant's alleged prior violence. (29) Moreover, Judge Smith was concerned with the serious risk of prejudice to the defendant from evidence of uncharged violence against another inmate.

      Smith found support in the court's 1987 decision in People v. Betts. (30) There, the court held it was error for the prosecution to question a defendant who takes the stand about pending criminal charges. (31) In Rojas, as in Betts, the effect of raising the question of a pending charge was to force the defendant to explain a crime for which he was not on trial, and of which he had not been convicted. (32) For Judge Smith, the majority was permitting the prosecution "to do indirectly [by questioning its witness about an alleged crime] what this Court has held [in Betts] cannot be done directly" by questioning the defendant himself, while on the stand. In either case, the prejudice to the defendant was real. (33)

      In People v. Diaz, the court held that the prosecution had failed to meet its "due diligence" obligation, required to justify the admission of the prior testimony of a witness who is unavailable for trial. (34) In Diaz, the prosecution's key witness--the victim--moved to Mexico after three mistrials against the defendant. Although the victim had resided in the United States for seven years and had some knowledge of English, Spanish was his native language. In preparation for the fourth trial, the prosecution telephoned him twice, both times asking the witness in English to return to the United States to testify. He never did. (35)

      Judge Rosenblatt, writing for the majority, found that the prosecution's failure to arrange for some communication with the witness in Spanish was dispositive. Rosenblatt explained that "[d]ue diligence requires that when the People try to secure a witness's presence at trial, they communicate in language the witness can understand. And there should be no question about the witness's understanding." (36) Hence, it was...