Friday, July 10, 2009

My Appellate Filings This Week

The New York appellate courts are in recess. This means there will no oral arguments in the New York Court of Appeals and the four Appellate Divisions in July and August. The Appellate Divisions will, however, continue to hand down decisions on cases argued through the end of June, although at a slower pace than during the rest of the year.

Recess for the appellate courts, however, does not translate into recess for appellate counsel. Over the summer lawyers for appellants and respondents must submit briefs for cases that will be argued in the Fall.

I had two filings this week. First, I submitted a lengthy letter to Judge Theodore T. Jones of the New York Court of Appeals in support of an application for leave to appeal to that Court. While applications for leave to appeal in civil cases go to the entire Court, applications in criminal cases go to a single judge of the Court. In 2008 there were 2,637 criminal leave applications. The judges granted 53, or a grant rate of 2%. While I have secured leave in criminal cases, and I think the issues raised in this application are worthy of Court of Appeals attention, one cannot be sanguine when filing a criminal leave application.

My second filing this week was an appellant's supplemental brief in the Appellate Term, First Department. The brief questions the propriety of a criminal bench trial to a blind judge when photographic evidence was central to the prosecutor's and the defendant's case.

My next filing this month will be an appellant's reply brief in a civil case in the New York Court of Appeals. Matter of Lena Hausman, Deceased.

I did not appear for any of the parties in the lower courts in Hausman. The losing side in the Appellate Division brought me in to try to get the case into the Court of Appeals. In January the Court granted my motion for leave to appeal. The case will be orally argued in October.

In 2008 there were 1,093 motions seeking leave to appeal to the Court of Appeals in civil cases. The Court granted 74 motions, a grant rate of 6.8%

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