Thanksgiving Revelations From the New York Court of Appeals
In the quiet of the Thanksgiving week, the New York Court of Appeals delivered a blockbuster batch of decisions that herald a new day for constitutional claims presented by criminal defendants in New York. The 12 decisions released on Nov. 21 are the first significant group of rulings in criminal cases from the newly constituted Court of Appeals and signal a dramatic realignment of the court’s seven judges.
The dozen cases from the Tuesday before Thanksgiving were headlined by six that presented Second Amendment challenges to gun-possession convictions in the aftermath of last year’s Supreme Court decision invalidating portions of New York’s gun-licensing regime. Other constitutional issues raised in these cases and in the remaining six involved police stops of bicyclists, police searches of vehicles and apartments, police handcuffing, prosecutorial use of prior convictions and the actions of defense counsel.
In the Second Amendment cases, the court declined to reach that constitutional issue on procedural grounds. But on other significant constitutional claims presented in the 12 overall cases, the court rule for the defendant in five. That marks a dramatic shift in the willingness of the court to vindicate constitutional claims of criminal defendants.
Just as newsworthy is the shift in the alignment of the court’s seven judges. Prior to the abrupt August 2022 resignation of former Chief Judge Janet DiFiore, a bloc of four conservative judges controlled the court’s criminal docket and routinely rejected constitutional claims in criminal cases. Unsurprisingly, each of the three remaining members of that bloc—Judges Michael Garcia, Anthony Cannataro and Madeline Singas—rejected every significant constitutional claim in the Nov. 21 cases, and as a group they voted together in every single case.
On the other side, Judge Rivera ruled for the defendant in 11 of the 12 cases (five times in dissent). In the center are Chief Judge Rowan Wilson, who has reenergized and reoriented the Court of Appeals and the state’s judicial system, Judge Shirley Troutman, and Judge Caitlin Halligan, who is the new member of the court following the Senate’s rejection of Hector LaSalle to replace Judge DiFiore.
Chief Judge Wilson ruled for the defendant in seven of the cases, (twice in dissent) and against the defendant in the other five. Judge Troutman ruled for the defendant in five cases and was the only judge in the majority of every case. Judge Halligan, who because of a recusal participated in only eleven cases, ruled for the defendant in five cases (once in dissent).
Of the nine authored opinions (three of the 12 were unsigned memorandum ones), Judge Halligan wrote four, Chief Judge Wilson two, Judge Rivera two, and Judge Troutman one. In five of those nine, the court split 4-3, with Judges Garcia, Cannataro and Singas dissenting in all five. In only two cases was the court unanimous, both in unsigned memorandum decisions presenting narrow issues.
Guns, Preservation and the Second Amendment
Presented in six cases, the headline constitutional issue before the Court of Appeals was whether the Supreme Court’s June 2022 decision in New York Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022), required invalidation of a wide swath of New York criminal convictions for unlawful possession of a firearm. With only Judge Rivera dissenting, the court declined to decide the issue, concluding the defendants in all six cases had failed to preserve the issue for appellate review. But it dropped a very big hint about its view of the scope of Bruen.
The key case was People v. Cabrera, authored by Judge Halligan. On preservation the court’s analysis was straightforward: The defendants had failed to present their claims at trial, and those claims did not fit within the very narrow exceptions to the court’s preservation jurisprudence. In dissent Judge Rivera argued the exceptions encompassed major changes to the legal landscape caused by intervening Supreme Court decisions and argued Bruen represented a “sea change in the law.”
Whether Bruen marks a “sea change” is the subject of enormous debate, with some contending it affords individuals a sweeping right to carry weapons outside the home free from licensing requirements and perhaps even requires invalidating thousands of gun-possession convictions. The big news out of Cabrera, albeit in dicta, is a treatment of Bruen that suggests the Court of Appeals hews to a far narrower view of the decision:
“. . . Bruen did not directly address the constitutional questions that Cabrera now seeks to raise. Bruen ruled that New York’s proper cause standard for issuance of public carry licenses violates the Second and Fourteenth Amendments. It did not address the rest of New York’s licensing scheme or the interplay between the invalidation of New York’s proper cause requirement and state statutes criminalizing unlicensed possession of a firearm, as [Judge Rivera’s] dissent in Garcia acknowledges. In fact, several of the Bruen concurrences explicitly noted that the opinion ‘decide[d] nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun’; that it did ‘not prohibit States from imposing licensing requirements for carrying a handgun’; and that it did not ‘cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.’”
Reflecting the views of many that gun-licensing regimes are rife with discriminatory enforcement practices that have resulted in the incarceration of vast numbers of Black and Brown people, Judge Rivera suggested a far broader view of Bruen. But resolution of that dispute will have to await another day.
A New Majority
Turning to cases where the court did reach constitutional questions, the most significant lesson that emerges from the Thanksgiving decisions comes from the cases where Chief Judge Wilson and Judges Rivera, Troutman, and Halligan joined to uphold constitutional claims and Judges Garcia, Cannataro, and Singas dissented. These cases suggest a realigned new majority in the Court of Appeals.
In People v. Rodriguez the court addressed whether a police-car stop of a bicyclist with a claimed bulge at his waistband was subject to a per se rule that every stop of a person riding a bike in a roadway constitutes a constitutional seizure, as is the law for stops of cars, or whether such stops are to be assessed individually on the totality of the circumstances, as is the law for stops of pedestrians. In an opinion by Judge Rivera (joined by Third Department Justice John Egan who was vouched in for a recused Judge Halligan) the court held that a per se rule applied because of the similarity between car and bicycle stops:
“Like an automobile stop, a bicycle stop is a traffic stop that involves a show of governmental authority and triggers ‘anxiety’ in the individual in a manner that implicates the same social expectations regarding how reasonable people react to such authority. Whether an individual is driving a car or riding a bike, a police order to stop requires them to halt their momentum based on the expectation that any attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no bicyclist would feel free to leave in the first place.”
In a forceful dissent, Judges Singas, Garcia and Cannataro contended the new per se rule would hamper the vital role of police in “maintaining order in our communities” and tied the dispute to Bruen “given the potential for the proliferation of guns on our streets.”
In People v. Brown the court opened the door to constitutional challenges to the state’s draconian sex-offender registration scheme. In an opinion by Judge Rivera it held due process barred application of the registration statute to a defendant who had robbed his aunt at gunpoint in the presence of his 10-year-old cousin. In the face of sweeping precedent holding the statute could be applied even when the underlying crime did not involve sexual misconduct, the court held this case was different because it not only did not involve sexual misconduct but also did not involve conduct targeting a child, as the 10-year old “just happened to be home when defendant broke in.” Judges Cannataro, Garcia, and Singas dissented on the grounds this marked a dramatic violation of stare decisis.
Also in the face of objections it was running roughshod over precedent, the court, in an opinion by Judge Halligan in People v. Telfair, vacated a gun-possession conviction of former NBA phenom Sebastian Telfair because prosecutors had improperly relied on two gun convictions from ten years earlier to counter Telfair’s defense that he did not know of the presence of the gun in his vehicle in the 2017 incident.
In People v. Debellis the court, in an opinion by Chief Judge Wilson, likewise invalidated a gun-possession conviction because defense counsel had failed to seek a specific jury charge, thereby violating the defendant’s constitutional right to effective assistance of counsel.
Finally, in People v. Cuencas, again in an opinion by Chief Judge Wilson, the court held that certain evidence central to a murder conviction needed to be suppressed under the Fourth Amendment because police officers had obtained it by entering the apartment where the defendant was staying without consent.
Mixed Alignments and Modest Agreements
Telling as is the 4-3 split in these five cases, two other significant cases garnered different line-ups. And in three small cases near-consensus surfaced.
In People v. Cabrera, beyond the Second Amendment challenge in the case, the court faced the constitutional claim that there should be a per se rule that the police handcuffing of a person amounts to a seizure triggering the requirement of Miranda warnings. In an opinion by Judge Halligan and joined by Judges Troutman, Garcia, Cannataro, and Singas, the court rejected the proposed per se rule (though held the use of handcuffs in that specific case did constitute a seizure). Joined by Chief Judge Wilson, Judge Rivera vigorously dissented, observing that “[h]andcuffs have a long, sordid history, including as a tool of bondage” and “are restraints, full stop.”
The court split differently in People v. Pestrana, a case presenting a suppression challenge arising from an NYPD vehicle checkpoint in which the car was searched following officers smelling marijuana in the stopped car. Joined by Judges Garcia, Cannataro and Singas, Judge Troutman rejected the defendant’s claim of constitutionally defective checkpoint procedures. Joined by Chief Judge Wilson, Judge Halligan dissented (all seven judges agreed that New York’s post-arrest decriminalization of possession of marijuana did not invalidate the conviction).
Finally, small points of agreement surfaced within the court. Three cases—involving car searches, youthful-offender status, and ineffective assistance of counsel—were decided by memorandum opinions with only a dissent from Judge Rivera in one case.
Two other cases—involving an inventory search of a car and voir dire—found six of the seven judges in agreement, with only Judge Rivera dissenting. None of these cases presented significant constitutional issues (in two criminal cases decided on Nov. 20, all the participating judges agreed on the disposition of narrow claims about the right to confront witnesses).
With the elevation of Judge Wilson to Chief Judge and the arrival of Judge Halligan, the future looks promising in the Court of Appeals for constitutional claims arising out of criminal prosecutions. The 12 decisions issued on Nov. 21 reveal that a majority of the court’s judges are prepared to seriously engage with these claims and are unafraid to vindicate constitutional rights even when presented by people charged with serious criminal offenses.
Constitutional claims will not always prevail, but for the first time in far too long they will receive the judicial respect they deserve.
This piece was originally published in the New York Law Journal.