Chris Gelardi


An Opening for Defendants’ Rights on New York’s Highest Court

Read the full piece in New York Focus

The New York Court of Appeals, the state’s highest court, ruled this year that a cop can continue interrogating a suspect alone even after the person asks for a lawyer, so long as they don’t ask forcefully enough.

It decided that prison authorities can keep someone behind bars past their maximum sentence if the person can’t find an appropriate place to stay after they’re released.

It limited defendants’ right to ask experts to testify on false confessions at trial.

And it concluded that an unhoused person soliciting money — without directly approaching anyone — with a misleading sign is guilty of fraudulent “accosting.”

These are just a few of the decisions handed down this past year by a new majority bloc of conservative judges on New York state’s top court. As New York Focus reported last week, the four-member conservative faction on the seven-judge court formed last year, when former Governor Andrew Cuomo, shortly before resigning in scandal, appointed two of its members to the bench. And it was slated to steer the Court of Appeals in a rightward direction for at least another three years.

But the bloc will only last — at least in its current iteration — for a few more weeks. In a surprise announcement Monday, Janet DiFiore, chief judge of the Court of Appeals since 2016 and the leader of the conservative faction, declared that she will be stepping down from her post at the end of August. (She has said little about her reasons for stepping down, but shortly after her retirement announcement, Law360 reported that DiFiore is facing an ethics probe for interfering in the disciplinary process of a court officer rival.)

During the last judicial session, DiFiore and fellow Cuomo appointees Michael Garcia, Anthony Cannataro, and Madeline Singas voted in tandem in — and thereby controlled the outcome of — all but two of the 98 cases. That level of ideological cohesion is unmatched by even the conservative supermajority US Supreme Court, whose recent decisions on abortion rights, election law, and gun control have thrown national politics further into disarray. In New York, the bloc recently handed down a slew of civil orders favoring corporations and landlords over employees, consumers, and tenants, and, in a 4–3 decision, issued one of the most controversial rulings in recent years when it decided that Democrat-drawn congressional and state legislative maps were unconstitutionally partisan.

The court’s right-leaning orientation has been put on especially stark display in its criminal docket, where, echoing recent Supreme Court decisions, it has issued several rulings that could severely limit the rights of those caught up in the criminal-legal system and give its various arms — from prosecutors to judges to jails and prisons — a pass when they violate defendants’ rights.

Now, with DiFiore’s resignation and the state’s and nation’s eyes on judges, progressives see an opportunity to balance the court and set it on a trajectory more friendly to defendants.

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