The 2021 Annual Report of the Clerk of the Court of Appeals, John Asiello, to the Judges of the Court summarizing the work and accomplishments of the court during calendar year 2021 was recently released. It is his last, as he has announced his retirement. As with his prior reports, and those of his predecessors, it is a document crammed full of information that will be of interest not only to appellate practitioners and dedicated court watchers, but to anyone seeking to learn the role and operation of our state’s highest tribunal.
The report, written in an easy-to-read narrative style, includes highlights of selected decisions and a number of statistical appendices that present a detailed analysis of various aspects of the court’s work during 2021 and the prior four years.
In 2021, for normal course appeals with full briefing and oral argument, the average time from filing a notice of appeal or order granting leave to appeal to the release of a decision was 18 months. For all appeals, including 25 decided under the sua sponte merits (SSM) procedure (Rule 500.11), and 52 dismissed pursuant to sua sponte dismissal (SSD) inquiries (Rule 500.10), the average length of time from the filing of a notice of appeal or order granting leave to appeal to the release of a decision was only five months. The court continues to maintain its remarkable decades-long, “tradition of prompt disposition of appeals following oral argument or submission.”
In 2021, the average time from argument to disposition of a normal course appeal was 31 days; for all appeals, the average time from argument or submission to disposition was 22 days. Decisions usually appear during the next term, generally about four weeks following the argument or submission of the appeal.
The SSM procedure selects certain appeals as suitable for expedited handling without the necessity of full briefing and oral argument, saving the parties money and often leading to an expeditious decision. Those appeals presenting simpler issues are decided on the basis of letters from the parties supplementing the briefs, record, and writings in the intermediate appellate court. They are assigned randomly to a single Judge for reporting purposes and then conferenced and determined by the entire court. The remaining appeals are determined in “normal course” after perfection, full briefing, argument or submission at a regular session calendar, and conferencing by the full court.
The report states, “Parties may request SSM review.” However, making a request for full briefing and argument is no guarantee such request will be granted. An unopposed request was denied without explanation in Matter of 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 matter of first impression with implications for all persons convicted of qualifying sex offenses meets none of [the selection criteria for SSM treatment contained in Rule 500.11(b)(1)]. Mr. Alvarez, understandably, objected to the relegation of his case to the alternative review procedure; the Attorney General did not disagree” (dissent, fn.3).
Speed in dispositions is very welcome, but it may come at a high price—the court deciding ever fewer appeals, and only 55% of those (45 of 81) with signed opinions. We believe this is an unfortunate trend. There has been a continuing decline in the number of appeals the court is willing accept and decide ever since the 1985 amendment to CPLR §5501(a) sharply curtailed the court’s “appeals as of right” jurisdiction. During the next three decades, the annual number of appeals decided declined from 568 in 1985 to an average in the 200s.
Since 2016, the number of annually decided appeals steadily declined further until, in 2021, it reached the lowest number of appeals decided by the court on the merits, after argument or submission, in its entire history—only 81, down from 96 in 2020. And, of the 81 decided appeals, 25 (31%) were decided upon SSM review and only 45 were decided with signed opinions, 25 by memoranda, 2 by per curiam opinions and 9 by decision list entries.
In 2021, the court disposed of 801 civil motions for leave to appeal (870 in 2020) and 1,658 criminal leave applications (1,824 in 2020) were decided by individual judges without briefing; on average, each judge was assigned 237 (247 in 2020). The court also disposed of 197 other motions, e.g., for assignment of counsel and poor person status, amicus curiae relief, seeking a stay or vacatur of a stay.
Of the 801 motions for leave to appeal in civil cases made in 2021, only 33 (4.1%) were granted; during the last five years (2017-2021), the grant of such motions fluctuated between 2.13%. (2018) and 4.1% (2021). Although a movant for leave to appeal in a civil case has only a slight chance of having the motion granted, in 2021, when leave was granted by the Court of Appeals, appellant’s chance of obtaining a reversal or modification rose to 56.2% (9 of 16), and if permission was granted by the Appellate Division, to 100% (5 of 5).
Where the jurisdictional predicate was two dissents on a question of law at the Appellate Division, only 28.5% resulted in a reversal (2 of 7). Three appeals taken as of right on the basis of a constitutional question (CPLR 5601[b]) resulted in one affirmance and two reversals.
No appeals were decided where the jurisdictional predicate was a stipulation for judgment absolute (CPLR 5601[c]), the appellate version of Russian roulette, with probably even a lower chance of survival. Such appeals may be taken from an order of the Appellate Division granting or affirming the granting of a new trial where only a question of law may be considered by the court. Because the court cannot review questions of fact or discretion—e.g., whether a verdict is against the weight of the evidence—the presence of one these will result in an affirmance and entry of judgment against appellant, who thereby loses the right to a new trial.
The jurisdictional predicate for all criminal appeals heard by the Court of Appeals is a grant of permission by a single judge of the Court of Appeals or justice of the Appellate Division, without briefing (Criminal Procedure Law §460.20). The judges of the Court of Appeals are highly selective of the type of criminal appeals they allow to be heard. In 2021, 1,658 criminal leave applications were decided by individual judges (on average each Judge was assigned 237) and only 27 were granted (0.016%).
Of the 44 criminal appeals decided in 2021, 30 came from permission granted by a Court of Appeals judge and 14 by an Appellate Division justice; 56.8% of all criminal appeals resulted in an affirmance, 38.6% in a reversal and 4.5% in a modification. Criminal appellants fared much worse in 2021 than in 2020 when 62% of their appeals resulted in a reversal. When permission was granted by a Court of Appeals judge, 40% of the appeals resulted in a reversal or modification (12 of 30); when permission was granted by an Appellate Division justice, 50% resulted in a reversal or modification (7 of 14).
Seventy years ago, Cohen & Karger, Powers of the New York Court of Appeals, p. 694 (1952), made the following trenchant observation as to the chance of having a motion for reargument of an appeal granted by the Court of Appeals: “A motion for reargument is generally an act of desperation: it is a psychological device for raising hopes which are almost invariably doomed to defeat.” Yet hope springs eternal—in the face of undeniable reality—and motions for reargument of appeals continue to be made and denied with predictable regularity. During the period 2014—2021, not a single one of 207 such motions was granted; 19 such futile motions were made 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 attorneys in 2021 whose work is supervised by the clerk and deputy clerk of the court. They are “usually, but not invariably,” recent law school graduates who prepare reports on civil motions and selected appeals for the judges’ review and deliberations. In 2021, they completed 697 motion reports and 12 SSM reports.