JUDGE ROWAN D. WILSON: AN ADVOCATE ON THE COURT OF APPEALS.

• Author: Besson, Sarah A.
• Position: New York Court of Appeals

1. INTRODUCTION

   To most, very little was known about the Long Island resident appointed to New York's highest court last February. Most outsiders likely would have expected to see a Judge heavily influenced by his work in commercial litigation. Few, perhaps apart from those who know him well, would have predicted that Judge Rowan Wilson's strongest opinions would be in criminal cases.

2. BACKGROUND

   In terms of prior experience, Judge Rowan D. Wilson is in many ways an anomaly on the current New York State Court of Appeals. Unlike his six colleagues, Judge Wilson has never been a judge or worked in government (apart from a two-year clerkship at the Ninth Circuit after graduating from Harvard Law School in 1984). (1) Instead, he brings to the Court thirty years of complex commercial litigation experience from the powerhouse law firm Cravath, Swaine & Moore LLP. (2) During his long tenure at Cravath, where he became the firm's first African American partner, (3) Judge Wilson demonstrated a commitment to serving the public as leader of Cravath's pro bono program and as Chair of the Neighborhood Defender Service of Harlem. (4)

   Judge Wilson was no stranger to the Court of Appeals selection process; he had been on the short list five times since 2013 before finally being chosen by Governor Andrew Cuomo to replace Judge Eugene Pigott. (5) On February 6, 2017, Wilson was confirmed as an Associate Judge on the Court of Appeals. (6) It was expected that he would be the last appointment to the Court until 2021 (7)--a prediction that was vitiated by the unexpected death of Judge Sheila Abdus-Salaam a mere two months after Wilson joined the Court. (8) Prior to her untimely death, the presence of both Abdus-Salaam and Wilson on the Court represented the first time in history that two African Americans served concurrently on the New York State Court of Appeals. (9)

3. WILSON ON THE COURT OF APPEALS

   Observers of the Court of Appeals have been eager to see what Judge Wilson will do in action, considering that his lack of judicial experience has given no insight into any judicial philosophy he may have. Every vote that he casts is contributing to his previously nonexistent record, and his written decisions give snapshot views of how he perceives his role as a judge on the state's highest court. In researching Judge Wilson's decisions from 2017, one aspect stood out clearer than any other: Judge Wilson--while he may be the "rookie" on the Court--is not afraid to dissent from his colleagues. In fact, in the time from February 16, 2017, to December 19, 2017, Judge Wilson dissented fourteen times; ten of those were dissents that he wrote

   Table 1: Dissents Written or Joined from February 6, 2017 December 16, 2017 (14)

   Interestingly, Judge Wilson has only ever joined dissents of his colleagues written by Judge Rivera or Judge Stein. (15) In some regards, this is unsurprising because they are among two of the most frequent dissenters on the Court. (16) However, as of January 1, 2018, Judge Wilson had never joined in a dissent of Judge Michael Garcia, despite many opportunities to do so considering that Judge Garcia is the second most frequent dissenter after Judge Wilson. (17) This can perhaps be accounted for by the differing political ideologies of the two judges: Judge Garcia is currently the only Republican on the seven-member court. (18)

   Judge Wilson's dissents during his first year of judging indicate that he is a fierce defender of the rights of criminal defendants and that he has come to the bench prepared to challenge the status quo when he feels an error has been made in the Court's interpretation of a New York statute.

   1. People v. Smith

      The very first opinion written by Judge Wilson was a dissent in People v. Charles Smith. Charles Smith had been charged with attempted robbery in the first degree after walking into a check cashing store, "demand[ing] money, [telling] her repeatedly that he had a gun, verbally threaten[ing] to shoot her, and 'show[ing]' her, by means of a hand placed under his sweatshirt, that a gun was concealed there." (19) When Smith was arrested, there was no firearm found on his person. (20) In order for Smith to be found guilty of attempted robbery, it must have been proven that he "display[ed] what appear[ed] to be a pistol, revolver, rifle, shotgun, machine gun or other firearm[.]" (21) Judge Fahey, writing for the Court, affirmed Smith's conviction based on the Court's 1989 decision in People v. Lopez, (22) where the Court had stated that "[a] towel wrapped around a black object, a toothbrush held in a pocket, or even a hand consciously concealed in clothing may suffice [in constituting display of a firearm within the meaning of Penal Law [section] 160.15(4)], if under all the circumstances the defendant's conduct could reasonably lead the victim to believe that a gun is being used during the robbery." (23) Judge Fahey also noted that Smith could have requested an affirmative defense to reduce the offense to robbery in the second degree but that he failed to do so. (24)

      Judge Wilson's sharply worded dissent began: "A homeless man walks into a check-cashing store. This sounds like the start of a bad joke, but instead is filled with pathos." (25) Judge Wilson argued that the legislative intent and plain meaning of the statute was at odds with the Court's interpretation of section 160.15. (26) In regards to the plain meaning of the statute, section 160.15 requires that the defendant "[d]isplay[] what appears to be a... firearm[.]" (27) After going through definitions of "display", Judge Wilson stated that,

      In Mr. Smith's case, even if he had possessed a firearm hidden under his hoodie, we would have referred to it as "concealed", not "displayed." To reach the conclusion that the legislature meant what, in common parlance, would be the opposite of what it wrote (i.e., "displayed" included "concealed"), we would need legislative history powerfully demonstrating that intent. (28) Judge Wilson then went on to discuss the legislative intent behind Penal Law [section] 160.15 and noted that it was intended to make the job of the prosecution easier, since the prior statute required that the prosecution meet its burden in proving that "a gun openly displayed during the crime was loaded and operable." (29) By amending the statute, essentially a presumption was created that the gun was loaded and operable and the burden shifted to...