Richard C. Wesley: voting and opinion patterns on the New York Court.

• Author: Bonventre, Vincent Martin
• Position: New York State Court of Appeals - Center for Judicial Process

1. INTRODUCTION

   Judge Richard C. Wesley's record in criminal cases is strongly pro-prosecution. (1) As a member of the New York State Court of Appeals, (2) the state's highest tribunal, he has been a consistent vote for the prosecution in appeals that divided his colleagues. (3) In common parlance, he has been a very conservative (4) judge in criminal cases, almost invariably siding with the interests of law enforcement against those of the accused. Moreover, his record is quite conservative whether viewed alone or in comparison with those of the other members of the New York court.

   Judge Wesley's record in civil cases is considerably less amenable to such labeling. (5) Indeed, his voting has been more than three times as supportive of individual claims of right or entitlement in divided civil decisions as in criminal ones. (6) Some of the difference between his civil and criminal records is attributable to his strong support in civil appeals for private property rights against local government restrictions. (7) But closer examination of his record also reveals votes--and even voting patterns--that are typically associated with liberal jurists.

   Even in appeals presenting strong competing arguments, he sided with workers over their government employers, tenants over landlords, discrimination claimants over defenders of an institutional system, and tort plaintiffs over civil defendants or insurance companies. (8) While his overall voting record in civil cases can hardly be classified as liberal, neither can it fairly be characterized as strongly conservative, pro-government, or unsympathetic to individual rights, liberties, analogous public protections, or tort claims.

   An examination of the specifics that add up to these general observations about Judge Wesley's record is instructive. The context provided by the positions Wesley took in particular cases, as well as by overall voting statistics for him and his colleagues on the New York court, helps illuminate the foregoing broad outlines.

2. CRIMINAL APPEALS (9)

   Since Judge Wesley took his seat on the New York Court of Appeals, he has compiled an overwhelmingly pro-prosecution voting record. He sided with the position more favorable to law enforcement, and thus less favorable to the accused, in 88% of the divided decisions. Stated otherwise, in only 12% of the divided appeals raising a criminal issue or in only five out of the forty-three such appeals--did Wesley take the position adopted by at least one of his colleagues that was more favorable to the defendant. (10)

   Moreover, his record places him at the pro-prosecution end of the Court of Appeals' spectrum for the six-plus year period from the time of his appointment. (11) In fact, most members of the court with whom he served, both current and retired, compiled voting records that are at least twice as supportive of the rights of the accused. (12) No colleague of his, retired or current, voted more consistently to reject the claims of criminal defendants. (13)

   None of the foregoing necessarily suggests anything about the substantive merits of Judge Wesley's record or of his votes in particular cases. Rather, the point is simply that his record is decidedly pro-prosecution, both absolutely and relatively. Moreover, an examination of individual appeals substantiates precisely what the numbers strongly suggest. As is evident from a review of Wesley's opinions and votes in several illustrative cases, the judgment he has exercised in criminal appeals--his weighing of competing interests--has almost invariably been inclined in favor of law enforcement.

   In his first year on the court, Judge Wesley penned a lone dissent in People v. Burdo, (14) arguing against the application of New York's state constitutional right to counsel rule, which in many respects is more protective of the accused than corresponding federal case law. (15) Court of Appeals precedent prohibits police questioning on any charge when the accused is in custody on a charge for which he has an attorney. (16) Wesley took issue with the majority's suppression of statements made in response to custodial questioning conducted in the absence of the accused's attorney. He urged adoption of the narrower federal constitutional right to counsel which, as construed by the Supreme Court, would have been offense-specific under the circumstances of the case. (17) In short, the federal rule would have prohibited questioning only about the offense for which the defendant was specifically represented by counsel; questioning on any unrelated charge would have been permissible.

   Similarly, in the 2001 case of People v. Diaz, (18) Judge Wesley again authored a dissent taking his court to task for restricting law enforcement. A bare four-to-three majority ruled that a defendant's right to confront adverse witnesses should have precluded the prosecution's use of the prior testimony of a witness who was absent from the trial; the efforts to obtain his presence, in the majority's view, were inadequate. (19) Wesley argued that there was some evidence in the record that the efforts were reasonably diligent. Consequently, in his view, the Court of Appeals had no business overruling such a fact-based conclusion reached by the court below. (20))

   In the year 2000 case of People v. Johnson, (21) Wesley joined a dissent objecting to the five-to-two majority ruling that the judges in the trials below each committed reversible error by failing to excuse jurors who had equivocated about their ability to be impartial. (22) The dissenting opinion conceded that the trial records indicated some uncertainty on the part of the jurors and that the uncertainty could have been handled more prudently. (23) Nevertheless, the dissenters argued against overturning the convictions on the ground that the Court of Appeals should defer to the discretion exercised by trial judges. (24)

   Notably, throughout his tenure on New York's high tribunal, Judge Wesley never dissented--or joined a dissent--in order to take a position more favorable to the accused than that taken by a majority of the court. Rather, he was always with the majority, whether as the author of its opinion or as a concurring member, when the court took a position more favorable to law enforcement. Several of those cases, where his vote was part of a bare four-to-three majority and, thus, was decisive in determining the outcome, are particularly telling. In those cases, the court was deeply divided, with forceful positions being taken by both sides, each reflecting emotional commitment to philosophical views about criminal justice rather than mere legal disagreement.

   In the 2001 case of People v. Robinson, (25) Judge Wesley joined the majority to permit pretextual stops of automobiles whenever the police can identify some traffic infraction that would otherwise justify a stop. (26) With Wesley's vote, a bare majority of the court adopted Supreme Court case law allowing such stops regardless of the actual underlying motivations. (27) The dissenters, on the other hand, argued that a more protective state constitutional standard was necessary to prevent arbitrary stops, such as those involving racial profiling. (28)

   In Johnson v. Pataki, (29) an appeal decided in 1997, Wesley's first year on the New York Court of Appeals, he was part of another four-to-three majority, this one permitting the pro-death penalty Governor to remove a locally elected anti-death penalty District Attorney from the prosecution of a capital murder case. (30) Wesley joined in the argument that the Governor's action was appropriate to ensure that the death penalty--an authorized punishment under state statute was given serious consideration by the prosecution. (31) The competing argument made by the dissenters, and necessarily rejected by Wesley, was that the Governor had acted arbitrarily and contrary to the state's death penalty law by removing a District Attorney who was unconditionally free under the statute to choose not to seek a capital sentence. (32)

   In the 2002 case of People v. Sanchez, (33) the Wesley-included bare majority rejected the contention of the defendant, the three dissenters, and a recent federal decision (34) that New York's depraved indifference murder statute--as construed in Court of Appeals precedent--was unconstitutional. (35) According to that contention, New York's high court had hopelessly blurred the distinction between depraved indifference murder and the lesser offense of reckless manslaughter. (36) As a result, prosecutors could obtain convictions for depraved indifference, a crime as serious as intentional murder, by simply proving the lesser reckless offense. By contrast, the four-to-three majority, including Wesley, concluded that a magnified degree of recklessness was required by the statute and had been proven in this case. (37)

   In other appeals, whether or not the division on the New York court was close, Wesley virtually always sided with law enforcement and against the accused. Indeed, he did so in every case in which the majority issued a pro-prosecution, pro-law enforcement opinion. In some of these opinions, though the vote was not close, the issue was, and the majority's position drew a forceful dissent.

   For example, in the 1999 case of People v. Tortorici, (38) the Court of Appeals majority, which included Wesley, held that it was within the trial judge's discretion to decide against conducting a competency hearing to determine whether the defendant was fit to stand trial. (39) The Court of Appeals dissenter argued that a hearing was mandated because of the defendant's long history of mental illness, especially considering the prosecution's own forensic psychiatrist's report that the defendant was "'incapable of rational participation in court proceedings.'" (40)

   Likewise, in the 2001 appeal in People v. Vernace, (41) Wesley joined the majority's holding that the Court of Appeals should not disturb the...