New York Law Journal's August 3, 2006, issue featured an upcoming
Albany Law Review report on the Appellate Divisions' track record of appeals with the Court of Appeals.
Albany Law School Professor Vincent M. Bonventre, Assistant Albany County District Attorney Jessica Blain-Lewis and law student Jason Cherna co-wrote the study entitled, "Appellate Division on Appeal: The Justices' Rates of Agreement, Rejection, and Vindication by the Court of Appeals." The report is scheduled to be published in the
Albany Law Review in early 2007. It is currently available as a special edition article on the
Albany Law Review website,
Study Tracks Split Appellate Decisions
Court of Appeals Sided Most With Mercure, Prudenti
by John CaherNew York Law JournalAugust 3, 2006
ALBANY—Attorneys heading to the Court of Appeals after a split appellate division decision would do well to have Second Department Presiding Justice A. Gail Prudenti or Third Department Justice Thomas E. Mercure in their corner.
But if they are relying on a divided opinion that includes Third Department Justices John A. Lahtinen or Anthony J. Carpinello, or Second Department Justice Anita R. Florio, it might be time to throw in the towel.
A new study slated for publication in the Albany Law Review attempts to track the agreement and vindication rates of New York appellate justices. By examining every non-unanimous, reviewed decision from all four departments since Jan. 1, 2000, and checking to see how those cases were resolved by the Court of Appeals, the authors discovered that:
Since 2000, the Court of Appeals has reviewed 15 divided Third Department cases on which Justice Mercure sat. It agreed with his position in all 15, including the two cases where he dissented.
Justice Prudenti participated in five divided decisions that eventually went up, including two where she dissented. In all five cases, the judges in Albany said the justice from Long Island was on the dime.
Justices Florio and Carpinello did not fare much better. The top court differed with Justice Florio 75 percent of the time, and Justice Carpinello 70 percent. Both judges are among the most prolific dissenters on their respective courts, but over the last six years the Court of Appeals has never agreed with a Florio or Carpinello dissent, according to the survey.
Additionally, the Court of Appeals rejected all six of Second Department Justice Daniel F. Luciano's dissents. But when he stuck with the pack and voted the majority, Justice Luciano had a perfect record.
Albany Law School Professor Vincent M. Bonventre, Assistant Albany County District Attorney Jessica Blain-Lewis and law student Jason Cherna, who co-wrote "Appellate Division on Appeal: The Justices' Rates of Agreement, Rejection, and Vindication by the Court of Appeals," readily admit that their survey is hardly a definitive measure of judicial competence.
The three authors caution against drawing unfair inferences or reading too much into their analysis.
"What can be said about the votes discussed in this report is that they represent degrees of success on review by the Court of Appeals," they said. "The authors do not posit much more than that."
The authors stress that "the rates of Court of Appeals agreement, rejection and vindication do not necessarily correlate to good or bad, right or wrong, wise or foolish. A high agreement rate does not necessarily suggest a better judge, nor does a high rejection rate necessarily identify a worse one."
Food for Thought
But they also note that the statistical analysis reveals identifiable patterns that provide food for thought and additional examination.
For instance, they found that the judges with the higher rates (such as Justices Mercure and Robert S. Rose of the Third Department, and Justices Peter Tom and David Friedman of the First Department) had civil case voting records evincing a strong affinity for defendants.
Conversely, several judges with the highest rejection and lowest vindication records tended to have pro-plaintiff voting records. They include Justices Angela M. Mazzarelli of the First Department, Gloria Goldstein of the Second, Lahtinen and Karen K. Peters of the Third, and Samuel L. Green and Leo F. Hayes of the Fourth.
"Further examination of such intriguing correlations was beyond the scope of the current study," the authors said. "What is suggested by the initial indications here, however, is worthy of further research."
The survey was undertaken by the Center for Judicial Process, an independent group Mr. Bonventre started to foster interdisciplinary research on courts and judges (www.centerforjudicialprocess.org).
As with many of the professor's studies - he also charts Court of Appeals voting patterns - this one relied on split decisions. That methodology, although routinely used by judicial scholars, has come under some criticism from those who say examining divided decisions exclusively skews the results of the study. The authors of "Appellate Division on Appeal" pre-emptively address that gripe in a footnote.
"The reasons for the traditional focus on divided decisions in judicial studies have been elaborated countless times," they observe. "Suffice it to say that such decisions are much more revealing of the judges' individual views than are the unanimous decisions which often, if not typically, mask those views in compromise and collegiality."
All told, the survey examined 254 divided appellate decisions that were reviewed by the Court of Appeals between January 2000 and June 2006.
The First Department accounted for the largest chunk of cases, 46 percent, achieving the lowest rate of affirmance, highest rate of reversal and highest rate of review.
The Third Department contributed the fewest, 12 percent.
The Second Department, which decides the most cases overall, and the Fourth Department, had about the same number of cases during the study period - 55 from the Second and 51 from the Fourth.
Of the 254 decisions reviewed, the Court of Appeals affirmed 176, including 80 percent of those from the Second Department, 70 percent from the Third Department, 67 percent from the Fourth and 65 percent from the First.
The survey showed that some judges are far more likely than others to be in the minority, rather than with the majority, when their panel is splintered.
For instance, 40 percent of Justice Tom's 50 votes in divided cases were dissents, but only nine of the 23 were vindicated on appeal. Similarly, Fourth Department Justice Green was on the losing side in his own court 82 percent of the time when the panel split. In those 28 cases, the Court of Appeals took Justice Green's view just five times.
Three of the presiding justices had high vindication rates on their dissents.
Both of Presiding Justice Prudenti's dissents were vindicated on appeal. Presiding Justice Eugene F. Pigott Jr. of the Fourth Department, another Court of Appeals candidate, had a vindication rate of 63 percent (five of his eight dissents were embraced in Albany). Half of Third Department Presiding Justice Anthony V. Cardona's dissents (three of six) were approved by the Court.
But Presiding Justice John T. Buckley of the First Department was right only 27 percent of the time when he dissented (three of 11), according to the Court of Appeals.
- John Caher can be reached at