If the system is not working let's fix it: why seven judges are better than one for deciding criminal leave applications at the Court of Appeals.

• Author: Pierce, Alan J.
• Position: New York

1. INTRODUCTION II. CURRENT CIVIL AND CRIMINAL LEAVE MOTION PRACTICE IN THE COURT OF APPEALS III. THE CRIMINAL LEAVE APPLICATION PROCESS IN OTHER JURISDICTIONS IV. THE 1982 MACCRATE COMMISSION REPORT'S RECOMMENDATION TO STANDARDIZE THE CIVIL AND CRIMINAL LEAVE PROCEDURES IN THE NEW YORK COURT OF APPEALS V. ANALYSIS OF CRIMINAL LEAVE GRANTS BY INDIVIDUAL JUDGES OF THE COURT OF APPEALS VI. THE CASELOAD AND MOTION BURDENS ON THE COURT OF APPEALS: A COMPARISON OF CIVIL AND CRIMINAL LEAVE APPLICATION STATISTICS VII. CRIMINAL LEAVE APPLICATIONS IN THE APPELLATE DIVISION VIII. CHIEF JUDGE LIPPMAN'S INITIATIVES AND CHANGES IN THE PERCENTAGE OF CRIMINAL LEAVE GRANTS IN 2009 IX. CURRENT RECOMMENDATIONS FOR CHANGING CRIMINAL LEAVE APPLICATIONS AT THE COURT OF APPEALS A. The NYSBA Appellate Courts Committee's Recommendations 1. Criminal Leave Applications Should Be Decided by the Full Court of Appeals, but the Single Justice Rule in the Appellate Division Should Be Retained 2. Uncertainty Over the "One Bite" Rule B. The NYSBA Criminal Justice Section's Recommendations C. The NYSBA's Adopted Recommendation D. The NYC Bar Report X. CONCLUSION: WHY THE NYSBA's RECOMMENDATION SHOULD BE ADOPTED NOW AND THE FULL COURT OF APPEALS SHOULD REVIEW AND DECIDE ALL CRIMINAL LEAVE APPLICATIONS A. Fallacy No. 1: Full Court Review of Criminal Leave Applications Will Overwhelm the Court Administratively B. Fallacy No. 2: With the Increase in Criminal Leave Grants in 2009, Legislative Changes and the Increased Administrative Burden on the Court Are Unnecessary C. Fallacy No. 3: There Are No Meritorious Cases Where the Current One-Judge Rule Has Resulted in the Denial of Leave to Appeal I. INTRODUCTION

   One of the hottest issues in criminal appellate practice in New York in 2009 was the process by which the New York Court of Appeals decides which criminal cases to grant leave in and resolve. The reason for this is two-fold: (1) the percentage of criminal leave applications granted by the Court became so noticeably small (two percent or less) in recent years that many judges, commentators, and interested parties began to publically debate whether something has to be done to change the process; and (2) the process is very different for criminal leave applications, which are decided by a single member of the Court, versus civil motions for leave to appeal, which are acted upon and decided by the full seven members of the Court.

   Thus, in the past year, Chief Judge Jonathan Lippman, two committees/sections of the New York State Bar Association ("NYSBA"), the NYSBA itself, and the New York City Bar Association's ("City Bar") Criminal Justice Operations Committee have all weighed in on the issue of the small percentage of criminal leave applications granted and the need for changes in the process at the Court of Appeals.

   This article is based on work this author contributed as one of three members of a subcommittee of the NYSBA's committee on Courts of Appellate Jurisdiction ("Appellate Courts") that was asked in late 2007 to assemble information concerning New York's application procedures for leave to appeal to the Court of Appeals in criminal cases, and to make recommendations regarding possible changes to conform the criminal leave application procedures to the civil leave application procedures. (1) The subcommittee produced a final report after it (1) reviewed New York's criminal leave procedures and compared them to civil leave procedures; (2) examined criminal leave procedures in other jurisdictions; (3) examined the prior recommendations of the 1982 MacCrate Commission Report; (4) analyzed criminal leave grants by individual judges of the Court of Appeals over a ten-year period; (5) studied the recent historic caseload and motion burdens on the Court of Appeals; (6) reviewed available data on the number of criminal leave applications granted and likely made in the appellate division; (7) spoke with a number of members of the criminal bar; and (8) considered Chief Judge Lippman's recently reported concerns about perceived fairness in the criminal leave application process. (2)

   This article follows the Appellate Courts Subcommittee's process and work and discusses in detail the final recommendations of the Appellate Courts Committee, the report and recommendations of the NYSBA Criminal Justice Section, the position adopted by the NYSBA Executive Committee and submitted to Chief Judge Lippman, the report of the City Bar Committee, and the initiatives of Chief Judge Lippman in 2009.

   This article concludes by discussing why the Recommendation of the Appellate Courts Committee, as adopted by the NYSBA, should be adopted as the law of New York, with immediate passage of the necessary minor amendments to the Criminal Procedure Law ("CPL"). Thus, the procedures for criminal leave applications in the Court of Appeals should be brought into harmony with the Court's civil leave application process, such that criminal leave applications are decided by the full seven members of the Court rather than by one judge as is the current statutory practice.

2. CURRENT CIVIL AND CRIMINAL LEAVE MOTION PRACTICE IN THE COURT OF APPEALS

   In most civil cases, assuming that the jurisdictional prerequisite of "finality" is satisfied, a party who does not have an appeal to the Court of Appeals as of right under CPLR 5601 (3) may seek leave to appeal to the Court of Appeals from either the appellate division or the Court of Appeals. (4) A motion for leave to appeal in the Court of Appeals is addressed to and decided by the entire Court. (5) The motion for leave is assigned to a reporting judge on a routine rotation basis, and a report, which is generally prepared by central staff under the supervision of the reporting judge, is circulated to all the judges of the Court. Leave is granted if any two judges vote in favor of granting leave. (6) Similarly, civil leave applications made to the appellate division are addressed to a full panel--either four or five justices--of the court, usually the same panel that decided the appeal from which leave is sought. Generally, a majority of the justices comprising the motion panel must vote in favor of the motion in order for it to be granted. (7) In a civil case, a party may first seek leave from the appellate division and, if denied, then move for leave in the Court of Appeals. (8)

   The procedure for making and deciding criminal leave applications is significantly different, and is largely governed by CPL 460.20. (9) In stark contrast to the "two bites" at a civil motion for leave to appeal first in the appellate division and, if unsuccessful, then in the Court of Appeals, only one leave application may be made in criminal cases under CPL 460.20. In most criminal cases, that one application can be made in either the appellate division or the Court of Appeals. (10) This makes the criminal leave process and the method of decision by the applicable court more critical in a criminal case. A party filing a criminal leave application in the Court of Appeals addresses it to the chief judge, who together with the clerk of the court designates a single judge to review and decide the application, apparently on a regular rotation. (11) Similarly, a criminal leave application to the appellate division is reviewed by a single justice, but the party seeking leave chooses the individual justice (including any dissenting justice) to whom the application is made. (12) The application should be made to a justice who was on the panel that heard the appeal, (13) and the Fourth Department makes this mandatory by rule. (14)

3. THE CRIMINAL LEAVE APPLICATION PROCESS IN OTHER JURISDICTIONS

   The United States Supreme Court determines the vast majority of its cases by the grant of a writ of certiorari in both civil and criminal cases, and the full Court hears and determines each application in both types of cases. (15) Thus, there is no distinction made in the Supreme Court between civil and criminal cases in the process and number of justices who decide whether to accept a civil versus a criminal appeal, (16) Under the "Rule of Four," the consent of four justices is required for the grant of a petition for certiorari. (17)

   Among the fifty state jurisdictions, New York is one of only four states (with New Hampshire, Rhode Island, and Virginia) that allow a single judge to decide whether to grant or deny leave to appeal in a criminal case. (18) It appears that all other states require that the highest court in the state review criminal leave applications as a full bench. (19) Of the full bench of the state's highest court, the number of judges necessary to grant leave to appeal in criminal cases varies widely, as follows:

   * four states require two judges' consent to grant leave in a criminal case;

   * twenty-two states require three judges' consent to grant leave in a criminal case;

   * twelve states require four judges' consent to grant leave in a criminal case;

   * three states require five judges' consent to grant leave in a criminal case; and

   * three states have no discretionary review in criminal cases. (20)

   Of the seven largest states by population, only New York gives a single judge the discretion to grant or deny leave to appeal in a criminal case. The other six largest states require the following number of judges to consent from the highest court's full bench to grant a criminal leave application: California four of seven; Texas--four of nine; (21) Florida--four of seven; Illinois--four of seven; Pennsylvania--three of seven; and Michigan--four of seven. (22)

4. THE 1982 MACCRATE COMMISSION REPORT'S RECOMMENDATION TO STANDARDIZE THE CIVIL AND CRIMINAL LEAVE PROCEDURES IN THE NEW YORK COURT OF APPEALS

   The Court of Appeals asked the American Judicature Society to undertake a study to assess the need for change in the appellate jurisdictions of the New York courts. (23) The study, known as the MacCrate Commission Report, was instrumental in...