In 1977, New York voters approved a constitutional amendment that replaced elections to the Court of Appeals (the state’s highest court) with a Commission on Judicial Nomination that gave the governor power to nominate judges to the court subject to Senate confirmation. To date, no nominee has ever been rejected by the Senate. It is time for that streak to end.
While few New Yorkers can name a single judge on the seven-member Court of Appeals, the court’s rulings have profound impact in myriad ways—especially when it comes to the criminal legal system, where the court has become increasingly pro-prosecution. During the uprisings following the police murder of George Floyd, New York Gov. Andrew Cuomo spoke of “righting the many injustices minority communities have faced because of a broken and unfair system.” The courts, too, are instruments of injustice.
Cuomo, a Democrat, had an opportunity to address part of the “broken and unfair system” that he helped to create. The governor appointed every current member of the court, establishing a conservative majority that has obliterated the rights of criminal defendants. With the need to fill three more seats on the court by year’s end, Cuomo could have assembled a new majority dominated by people who have demonstrated commitments to protecting people’s rights to be free from overbearing, arbitrary, and racist policing, and to rectifying a criminal legal system that regularly turns a blind eye to injustice. However, his recent nominations of Madeline Singas and Anthony Cannataro reflect an opportunity squandered.
The current court’s antipathy toward people charged with crime is manifested in the increasingly minuscule number of cases the court agrees to review, and the decidedly pro-prosecution decisions the court renders. While people convicted of crime can request that the court consider the legality of their conviction, the present court routinely declines to hear those appeals. The number of criminal appeals accepted by the court is at its lowest point in years. In 2013, the court heard 259 criminal appeals. Last year, that number dropped to 96.
Those fortunate few who manage to have their cases reviewed by the court face yet another barrier: a court with a distinctly pro-prosecution bent. In 2017, the court sided with the prosecution in 82 percent of the cases it heard. One judge, Michael Garcia, ruled in favor of the prosecution in 100 percent of the court’s non-unanimous cases. Only two of the court’s judges, Jenny Rivera and Rowan Wilson, do not regularly vote in lockstep with the prosecution.
Omar Alvarez’s case is a prime example of the court’s contempt for people convicted of crime. When Alvarez was 19 years old, he was charged and convicted of several violent crimes, including murder, and sentenced to 66 2/3 years to life. His appointed appellate lawyer filed a brief full of typos and grammatical errors and bereft of citations to support legal claims. The lawyer’s statement of the facts contained a mere six lines of text; the entire brief was only 20 double-spaced pages, including separate cover pages and table of contents. The prosecutor’s statement of the facts, by contrast, ran 60 pages, and their entire brief was 175 pages. Further, and most crucial, the lawyer inexplicably failed to seek review of the most glaring issue in the case—a de facto sentence of life without parole imposed on a teenager.
Alvarez filed a motion alleging that his appellate lawyer provided ineffective assistance of counsel. The Court of Appeals, with apparent ease, affirmed the conviction in a brief decision.
In her lengthy dissent, Rivera wrote that the brief “violates every rule about effective advocacy taught to law students across the country.” She even took the unusual step of attaching a link to the brief for all to see. In his similarly lengthy dissent, Wilson referred to the “atrocious quality of appellate counsel’s brief” and urged that the failure to ask the appellate court to reduce the sentence, by itself, was ineffective assistance of counsel that demanded a remedy.
Wilson also noted a significant fact that the court’s majority ignored: Omar Alvarez was gravely ill. His cancer had metastasized and compressed around his spinal cord. He was a paraplegic, confined to a wheelchair and unable to control his bladder and bowels. Directly calling out the other judges who found no fault in the attorney’s failure to seek resentencing, Wilson asked, “Were Mr. Alvarez your son, would you have instructed his lawyer not to ask the Appellate Division to exercise its interest of justice jurisdiction to give him the chance to prove he had earned parole?”
The other five members of the court referred to the “minuscule” issues raised by Alvarez’s appeal and, without any apparent sense of shame, wrote that “the brief filed by appellate counsel was somewhat terse, could have been better drafted, and is not a model to be emulated.” In so easily dispatching the appeal, the court revealed its attitude toward the pleas of thousands of people whose cases are either never reviewed or whose convictions are upheld without serious scrutiny and sense of humanity.
There are numerous other examples of the court’s scorn for people who have the temerity to challenge their convictions. Recently, in dissenting from a majority opinion that upheld the denial of a convicted individual’s time-honored right to make a statement at sentencing (as the person simply asked, “Am I going to get a chance to talk?”), Wilson noted that the court seemed to have no qualms about treating a convicted person as “an object.”
The urgent need for judges with professional and personal diversity has been raised at the federal level as advocates, and even Supreme Court justices and senators, have called on President Joe Biden to look beyond the usual crop of prosecutors and members of big law firms and appoint those who have spent their careers defending people from oppressive governmental power. Biden appears to be listening. His initial list of nominees for the federal bench includes several public defenders and civil rights attorneys.
In contrast, Cuomo’s most recent nominees to the Court of Appeals have no experience challenging the carceral state. The first, Madeline Singas, is a career prosecutor who cut her teeth in the Queens district attorney’s office, which dodged constitutional and ethical rules by withholding exculpatory evidence and attempting to circumvent an accused’s right to remain silent during interrogation. Singas also co-authored op-eds that expressed misgivings about profound legislative changes to bail, discovery, and speedy trial that provide a window into how she would likely rule on those issues as a judge. Cuomo’s second nominee, Anthony Cannataro, is a civil trial court and administrative law judge with no record of support for the rights of defendants. Neither Singas nor Cannataro has ever represented someone facing criminal charges.
The need for a progressive New York court is imperative as the United States Supreme Court is dominated by judges with prosecutorial beliefs. In April, the high court rolled back the already limited protections for young people facing the prospect of life without parole. Rulings like that cry out for a New York court willing—as it once was—to find greater protections for individuals in the state’s own constitution against practices that have decimated individuals and communities of color.
While the past year’s protests shined a spotlight on hyper-aggressive and racist policing, the criminal legal system extends beyond the police. Courts are arbiters that sanction and thereby encourage police and prosecutorial behavior. New York’s highest court has turned a blind eye toward the rights of people charged with crime. It is Cuomo’s court, and if he will not fix it, then the new majority-Democratic Senate must flex its power to deny confirmation to his nominees until he does.