Registrar of the Court of Appeal John Asello’s 2021 Annual Report to the Justices of the Court summarizing the work and achievements of the Court during the 2021 calendar year has recently been released. It is his last, since he has announced his retirement. As with his previous reports and those of his predecessors, this is an information-packed document that will be of interest not only to appeal practitioners and dedicated court watchers, but also to anyone seeking to understand the role and the operation of our state’s highest court. .
The report, written in an easy-to-read narrative style, includes highlights of select decisions and a number of statistical annexes that provide detailed analysis of various aspects of the Court‘s work in 2021 and the previous four years.
In 2021, for appeals in the normal course of cases with full argument and argument, the average time between the filing of a notice of appeal or an order granting leave to appeal and the publication of a decision was 18 months. For all appeals, of which 25 were decided under sua sponte merit (SSM) proceedings (rule 500.11) and 52 were dismissed under sua sponte rejection (SSD) inquiries (rule 500.10), the average time between filing notice of appeal or order granting leave to appeal the publication of a decision was only five months. The tribunal continues to uphold its remarkable “tradition of expeditiously resolving appeals after a pleading or submission” that has endured for decades.
In 2021, the average time from argument to disposition of an appeal in the normal course was 31 days; for all appeals, the average time from argument or submission to decision was 22 days. Decisions usually appear during the next term, usually about four weeks after the argument or appeal is submitted.
The SSM procedure selects certain appeals as being able to be dealt with quickly without the need for a full briefing and argument, which saves the parties money and often leads to a quick decision. Appeals presenting simpler issues are decided on the basis of letters from the parties supplementing the factums, the record and the writings of the intermediate court of appeal. They are randomly assigned to a single judge for reporting purposes and then conferred and determined by the full court. Remaining appeals are determined in the “ordinary course” after perfection, full briefing, argument or submission during a regular session schedule and conference by the full court.
The report states that “parties may request an MSS review.” However, making a request for complete information and argument does not guarantee that this request will be granted. An unopposed request was rejected without explanation in Alvarez v. Annucci__N.Y.3d __, 2022 Slip Op 01957 (March 22, 2022), where Judge Rowan Wilson, in his dissenting opinion, noted: “This case, which presents a fully preserved first impression issue with implications for all persons convicted of eligible sexual offenses do not meet any of the [the selection criteria for SSM treatment contained in Rule 500.11(b)(1)]. Mr. Alvarez naturally objected to the referral of his case to the alternative examination procedure; the Attorney General did not disagree” (dissent, footnote 3).
The speed of decisions is welcome, but it can come at a high price – with the court deciding fewer and fewer appeals, and only 55% of those (45 out of 81) with signed opinions. We believe this is an unfortunate trend. There has been a steady decline in the number of appeals the court is willing to accept and decide since the 1985 amendment to CPLR §5501(a) sharply reduced the “as of right appeal” jurisdiction of the courtyard. Over the next three decades, the annual number of appeals decided fell from 568 in 1985 to an average in the 200s.
Since 2016, the number of appeals decided each year has further decreased until in 2021 it reaches the lowest number of appeals decided by the tribunal on the merits, after argument or submission, in its entire history – only 81, compared to 96 in 2020 And, of the 81 appeals decided, 25 (31%) were decided during the review of the SSM and only 45 were decided with signed opinions, 25 by notes, 2 by opinions by curiam and 9 by decision list entries.
In 2021, the court ruled on 801 civil applications for leave to appeal (870 in 2020) and 1,658 applications for criminal leave (1,824 in 2020) were decided by individual judges without information; on average, each judge was awarded 237 (247 in 2020). The court also ruled on 197 other motions, for example, for the appointment of a lawyer and the status of impoverished person, the amicus curiae remedy, the application for a stay or the vacatur of a stay.
Of the 801 applications for civil leave to appeal filed in 2021, only 33 (4.1%) were granted; over the past five years (2017-2021), the granting of these requests has fluctuated between 2.13%. (2018) and 4.1% (2021). Although an application for leave to appeal in a civil matter has a slim chance of being granted, in 2021 when leave has been granted by the Court of Appeal, the chances of appellant to obtain a rescission or variation was 56.2% (9 out of 16), and if leave was granted by the Appeal Division, 100% (5 out of 5).
When the jurisdictional predicate was two dissents on a question of law at the Appellate Division, only 28.5% resulted in an overturn (2 out of 7). Three appeals brought as of right on the basis of a constitutional question (CPLR 5601[b]) resulted in one affirmation and two cancellations.
No appeal was decided when the jurisdictional predicate was a stipulation for absolute judgment (CPLR 5601[c]), the call version of Russian roulette, with probably even less chance of survival. These appeals may be brought against an order of the Appellate Division granting or confirming the grant of a new trial when only a question of law can be considered by the court. Because the court cannot consider questions of fact or discretion – for example, whether a verdict is against the weight of the evidence – the presence of either of these will result in an affirmation and the entry of a judgment against the appellant, who thereby loses the right to a new trial.
The jurisdictional predicate for all criminal appeals heard by the Court of Appeal is the granting of leave by a single judge of the Court of Appeal or a judge of the Appeal Division, without notice (Procedural Law criminal §460.20). Court of Appeal judges are very selective about the type of criminal appeals they allow to be heard. In 2021, 1,658 requests for criminal authorization were decided by individual judges (on average, each judge was awarded 237) and only 27 were granted (0.016%).
Of the 44 criminal appeals decided in 2021, 30 were from leave granted by a Court of Appeals judge and 14 by an Appellate Division judge; 56.8% of all criminal appeals resulted in an affirmation, 38.6% in a quash and 4.5% in an amendment. Criminal callers fared much worse in 2021 than in 2020, when 62% of their calls resulted in a cancellation. When leave was granted by a judge of the Court of Appeal, 40% of appeals resulted in a reversal or modification (12 out of 30); when leave was granted by an Appeal Division judge, 50% resulted in a reversal or variation (7 out of 14).
Seventy years ago, Cohen & Karger, Powers of the New York Court of Appeals, p. 694 (1952), made the following incisive observation about the possibility of having a motion to re-argue an appeal granted by the Court of Appeal: “A motion to re-argue is generally an act of desperation: it is a psychological device to instill hope that are almost invariably doomed. Yet hope is eternal – in the face of undeniable reality – and requests to re-argue appeals continue to be made and dismissed with predictable regularity. During the period 2014-2021, not one of the 207 such requests was granted; 19 futile requests of this type were filed in 2021.
The judges are assisted in their work not only by their own clerks (usually 3 each), but by the Central Legal Research Staff consisting of 17 lawyers in 2021 whose work is supervised by the clerk and the deputy clerk of the court. They are “usually, but not always,” recent law school graduates who prepare reports on selected civil claims and appeals for the judges’ review and deliberations. In 2021, they completed 697 motion reports and 12 SSM reports.
Thomas R. Newman is the attorney for Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.