While NY lawmakers move left, top court moves more to the right

ALBANY — Not all branches of New York State government are moving in a progressive direction.

While lawmakers at the Capitol are shifting the state to the left, down the hill the state’s top court is swinging right, analysts say.

Under Chief Judge Janet DiFiore, the Court of Appeals has moved in a more conservative direction than her recent predecessors, especially as measured by outcomes in criminal cases. And it’s happening even though all seven judges on the court are appointees of Democratic Gov. Andrew M. Cuomo.

Defendants are winning cases at a lower rate than under DiFiore’s recent predecessors, records show. Prosecutors are winning about 75 percent of the cases over the last three years, according to court records and tallies by independent analysts — compared with 2012, when prosecutors won less than half of the time. The entire court has turned over since 2013 and DiFiore has been just one of what has been a five-member majority on some high-profile criminal decisions.

“This is definitely a pro-prosecution court,” Vincent Bonventre, an Albany Law School professor who has studied the court extensively, said. That’s not to say it’s good or bad, but it is clear.

“I don’t think there’s any question about it,” he said.

Some say it’s still a New York court, so a conservative shift merely means the bench is moving to a more centrist viewpoint. Some suspect the pro-prosecution trend has more to do with the types of and reduction in cases the court is agreeing to hear rather than a strategy. In any case, many are taking notice.

“New York has been moving in a really progressive direction yet we have the most conservative bench for at least 25 years,” said one defense attorney, who like others interviewed, asked not to be named because of the prospect of arguing future cases before the seven-judge panel. “It’s just really difficult to win in that court. We’re losing everything.”

“It’s an all-Cuomo court. And it’s a surprisingly more pro-government court than the Lippman court,” said Paul Shechtman, criminal justice director under former Gov. George Pataki, a Republican, and now a white-collar criminal attorney. He writes an annual summary of criminal cases heard by the Court of Appeals for the New York Bar Association and his findings echo Bonventre’s.

In the court’s 2016-17 term (September to June), prosecutors won 80 percent of the criminal cases, according to Shechtman. That also was DiFiore’s first full term as chief judge.

The next year, prosecutors won 71 percent of the time, according to Bonventre.

By comparison, prosecutors won 36 percent of the cases in 2007-08, Judith Kaye’s last full term as chief judge. They won 49 percent in 2011-12, when Lippman was chief judge. Though prosecutors won more than half the time overall under Lippman, who led the court from 2009-16, the percentage was much lower than under DiFiore so far.

People v. Tiger is one case that stood out for Shechtman. Natascha Tiger was a nurse accused of scalding her disabled, 10-year-old patient. Faced with up to seven years in prison, she agreed to plea bargain and serve four months. Later, she sought to reopen the case when new evidence emerged that a medication might have caused the child’s skin condition, not scalding. But in a 5-2 decision written by DiFiore, the court said, under current state law, pleading guilty earlier meant Tiger couldn’t challenge her conviction on an actual claim of innocence.

“Janet may be right on that one, but it’s certainly not a liberal opinion,” Schechtman said. In his Bar Association column, he wrote: “One hopes that Governor Cuomo will consider Tiger’s case.”

When it comes to deciding civil cases, the court has sided with tenants, consumers and employees about 25 percent of the time, according to one analyst’s calculations and with the government, business owners and employers 75 percent of the time.

Cuomo, a Democrat first elected governor in 2010, has promoted a “progressive” legislative agenda, featuring the legalization of same-sex marriage, a minimum wage hike and a stronger state law on abortion rights. At times, he’s been in competition with the Democrat-controlled legislature to claim credit for just who is leading the way left.

He has been in office long enough to make eight appointments to the Court of Appeals and has demonstrated political, geographic and demographic diversity, selecting the first openly gay court member, the first Long Islander in a generation, two African-Americans, two Hispanics and a Republican, a district attorney and a former U.S. attorney (some of these categories overlap). What the Democrat hasn’t done is shifted the court in a leftward direction.

“He has not necessarily picked very liberal judges,” said N. Scott Banks, the attorney-in-chief at the Nassau County office of the Legal Aid Society, which represents poor defendants.

Not everyone dislikes the Court of Appeals trend and some say it is a welcome contrast to the action up the street.

“The Democratic-controlled Legislature is using its policymaking authority to advance a misguided political agenda which caters to criminals and convicts. But the Court of Appeals has a job to do that goes beyond soundbites and headlines that too often dictate liberal action in Albany,” said Assembly Minority Leader Brian Kolb (R-Canandaigua).

DiFiore became chief judge in February 2016, tapped by Cuomo after Lippman reached the mandatory retirement age for Court of Appeals judges. DiFiore was a Republican when she first won election as Westchester County District attorney in 2005, but switched to Democrat during her 2007 re-election campaign. From 2011-13, she served as Cuomo’s appointee to chair the state’s ethics commission.

DiFiore declined comment through a spokesman.

A related trend is that it has become much harder for the accused — or the tenant, consumer or employee pursuing a civil lawsuit — to get his or her day in court. The Court of Appeals heard an average of 85 criminal appeals per year from 2011-15, under Lippman. Under DiFiore, it’s 30 per year — a 65 percent drop.

Civil cases also have declined 65 percent on an annual basis, according to the court’s annual reports. The New York Law Journal reported in November that DiFiore had told judges in the Appellate Division, the state’s midlevel court, to reduce the number of cases sent to Albany.

But the DiFiore court’s rate of accepting criminal cases isn’t lower than just Lippman’s. It’s also lower than under Judith Kaye (chief judge from 1993-2008) and Sol Wachtler (1985-92).

The decrease in cases might slant the outcomes more in the prosecution’s direction, one analyst said, in part because most of the appeals come from defendants.

“I don’t get the sense there is any real deliberate strategy to change the law, but really it’s more the randomness of appeals,” said Larry Cunningham, a professor at St. John’s Law School and a former Bronx prosecutor. In the Tiger case, he said, the court was “bound to do what the Legislature said” in statute.

For some, the trend isn’t a bad thing. They say Lippman, DiFiore’s immediate predecessor, may have gone overboard in getting the court to hear too many cases, clogging up the calendar and forcing a shorter time table for rendering decisions.

But William Hellerstein, a retired attorney and law school professor who argued some 60 cases before the Court of Appeals during his career, contended the decrease was “troublesome.”

“It reflects a changing philosophy,” Hellerstein said. “A lot of mistakes are made by the courts below and if the Court of Appeals isn’t going to correct it, who is?”