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Courts & Practice

A Fairer Process for Criminal Leave Applications

February 2010

In contrast to how civil leave applications are granted in New York—with the votes of two out of seven Court of Appeals judges required to grant appeal—as well as in contrast to the criminal leave application procedures of the vast majority of states, leave in New York criminal cases is at the discretion of a single Court of Appeals judge.

A new report from the City Bar’s Criminal Justice Operations Committee recommends that the system be changed to allow leave applications to be heard by three judges instead of one. Their report finds that since the rate at which individual judges grant leave varies widely, there is a widespread perception that receiving criminal leave to appeal amounts to the ‘luck of the draw.’ This is especially troubling, according to the report, because “leave in criminal cases is most often sought by the defendant and criminal defendants in New York are overwhelmingly indigent and disproportionately non-Caucasian.”

The report, which comes in response to Chief Judge Lippman’s appointment of Judge Robert S. Smith to review the criminal leave process, states a further concern: In recent years, the rate at which leave is granted in criminal cases has declined sharply, even in cases, according to practitioners, that are particularly leave-worthy, such as those that demonstrate a split among different Departments of the Appellate Division.

“Chief Judge Lippmann, to his credit, recognized the need to examine the system and see if there was a problem,” said James Branden, Chair of the Criminal Justice Operations Committee. “Criminal leave grants have gone down over the past 20 years....Whether the system is actually unfair, we don't know, but we think the one-judge selection process results in a definite perception that luck plays too important a role.” 

New York is one of only four states – including New Hampshire, Rhode Island, and Virginia – where only one judge decides criminal leave applications to the highest court, and one of only a few states with separate processes for criminal and civil cases seeking appeals in the highest court. In most states, as well as in the U.S. Supreme Court, the full court decides which criminal cases it will hear.

There is a notable discrepancy among individual New York Court of Appeals judges in terms of leave applications granted every year. Some grant seven or more, others as few as three. The Court receives nearly 2,500 criminal leave applications a year, but the Committee’s report notes a steady decline over the past quarter century in total number of  cases heard by the Court, as well as the percentage of those cases that were criminal. In the mid-nineties, 40% of appeals heard were criminal, but by the mid-2000s, only 30% were criminal. Between 2000 and 2008, the criminal leave grant rate hovered between 1.5% and 2.1%.

Finding that adoption of the civil leave process would create a burden on the Court – there are double the amount of criminal cases than civil cases seeking appeal each year – the Committee recommends four modifications to improve the process.  First, assignment of each leave application to a panel of three Court of Appeals judges, with leave to be granted if any of the three judges decides it should; dissemination of the issues on which leave is currently being sought to all the judges, allowing opportunity for input; provision of the automatic right to file a reply leave letter; and clarifying to Appellate Division justices that they should grant leave applications they believe have merit.

“We truly hope that the Court of Appeals will adopt our recommendations,” said Branden.  “We’ve struck a balance between two sides – the Court and the practitioners – that addresses the perception of unfairness in the system while not unduly burdening the court.”

New York Law Journal, “City Bar Suggests Revision to Court of Appeals Criminal Leave Process” (12/21/09)

City Bar Committee on Criminal Justice Operations, “Criminal Leave Application Procedures in the Court of Appeals” (12/09)

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