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

I. 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 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. …