Monday, February 19, 2024

Rowan Wilson and the Injured Plaintiff

Trying to Avoid Insult upon Injury During the DiFiore Court
By Lukas Moller
Lukas Moller is a 2023 graduate of Albany Law School. He grew up in Altamont, NY. Prior to law school, Lukas received his Bachelor of Arts, Summa Cum Laude, in Honors History from SUNY Albany.
While at Albany Law School, Lukas interned for the Albany County District Attorney’s Office, Goldman Sachs Ayco Personal Wealth  Management, and the United States Attorney’s Office for the Northern District of New York.
Lukas joined Goldman Sachs Ayco Personal Wealth Management after graduation, focusing on tax, trust and estates, and securities matters. Lukas wrote this paper for Professor Bonventre’s Court of Appeals Seminar.

The great Court of Appeals Judge Benjamin Cardozo characterized dissents as “the gladiator making the last stand against the lions.”[1]  For now-Chief Judge Rowan Wilson, the lions had been the more conservative majority in the DiFiore Court.

Judge Wilson joined the Court of Appeals in 2017 when he was selected by then-governor Andrew Cuomo after six nominations to the court.[2] The DiFiore Court was riddled with split decisions and unsigned memoranda, with strong dissents often spearheaded by then-Associate Judge Wilson and Associate Judge Jenny Rivera.

The attention delegated to the minority opinions has been dominated by criminal procedure.[3] Dissents by Judge Wilson, such as those in People v. Tiger[4] and People v. Dawson,[5] have gained notable attention for the “indifference to justice” by the majority to highlight what many see as a weakened court.[6] But more attention should be given to civil cases, especially personal injury cases, both for what they say and what they do not say.

Much like in criminal cases, Judge Wilson’s decisions in the personal injury context provide insight into the direction that he plans to steer New York's highest court as the new Chief Judge. This paper will focus on the opinions of Judge Wilson, mostly dissents, in divided court decisions in plaintiff injury cases to contextualize the frame of mind of the DiFiore Court and Wilson's disagreement therewith. 
  [2] Vincent Bonventre, NY Chief Judge Nominee Rowan Wilson (Part 1), NEW YORK COURT WATCHER (Apr. 15, 2023),
  [3] See Symposium, The Role of the “Victim” in the Criminal Legal System: Rotten Social Background and Mass Incarceration: Who Is a Victim?, 87 BROOK. L. REV. 1299 (2022); Jonathan Cantarero, Fixing Appeal Waivers in New York, 84 ALB. L. REV. 189, 207 (2021).
  [4] People v. Tiger, 32 N.Y.3d 91 (2018).
  [5] People v. Dawson, 38 N.Y.3d 1055 (2022).
  [6] Vincent Bonventre, NY Chief Judge Nominee Rowan Wilson (Part 2), NEW YORK COURT WATCHER (Apr. 16, 2023),
To read the paper, open HERE.

Monday, February 5, 2024

The NY Court of Appeals' Ludwig Decision on Prior Consistent Statements

A Hearsay Exception that Challenges the Rights of the Accused
By William J. Matthews
Will Matthews is a third-year student at Albany Law School. Prior to attending law school, he worked for Via Aquarium as an Aquarist and worked for Ducks Unlimited as a GIS Analyst Intern. He graduated from Paul Smith’s College with a degree in Wildlife Science.
Recently, Will organized Place, Space, & Justice in a Climate Migration World, the Albany Law Review Spring 2024 Symposium.
Post-graduation, Will will be working as a Staff Attorney at the United States Court of Appeals for the Second Circuit.

In New York, a complainant’s prior consistent statements are generally inadmissible in court as hearsay, unless an exception applies. In People v. Ludwig, the New York Court of Appeals upheld the admission of the prior consistent statements of a child in a child sexual abuse trial. The Court held that the testimony fell within the existing exception for prior consistent statements offered to complete the narrative of events leading to the investigation and arrest of the defendant.

The Court’s majority opinion, authored by Judge Susan Read, was joined by Judges Victoria Graffeo, Eugene Pigott, and Sheila Abdus-Salaam. The Court's ruling was questioned in a separate concurrence by Judge Robert Smith, who failed to see why the investigative process required explaining. Chief Judge Jonathan Lippman, joined by Judge Jenny Rivera, echoed Judge Smith’s concerns in a dissenting opinion. The dissenters added that prior applications of the “completing the narrative” exception were accompanied by effective limiting instructions, ensuring that jurors did not consider the evidence for the truth of the matter asserted.

People v. Ludwig is a challenging case that forces readers to weigh the importance of the rights of the accused with the natural human desire to protect the most vulnerable among us. This paper uses the three distinct opinions written in Ludwig as a backdrop for a larger conversation about the Court of Appeals’ willingness to stretch the applicability of exceptions to the general rule against the admissibility of prior consistent statements when the complainant is the victim of sexual assault or abuse, particularly children.

Is it appropriate to erode the rights of the accused when the alleged victim is a sexually abused child? Or should the rights of the accused be treated with absolute reverence, even when it prevents a child sex victim from being able to fully tell their story in court?
To read the paper, open HERE.

Thursday, December 7, 2023

New York Court of Appeals: Why I Loved Sandra Day O'Connor

Gender and sexual orientation equality, the right to choose, diversity, religious liberty, reasonableness in search and seizure and criminal punishment, etc.
Wisdom, decency, and realism.
Source: Annenberg Public Policy Center

Monday, November 20, 2023

Court of Appeals Judge George Bundy Smith

A Legacy of Judicial Excellence and Civil Rights Advocacy
By Kimberley Bernard
Kimberley Bernard is a third-year student at Albany Law School. Prior to attending law school, Kimberley earned her bachelor’s degree from the University at Albany, SUNY, where she majored in English with double minors in Business and Sociology.
At the law school, Kimberley has served as treasurer for the Black Law Student Association, was a semi-finalist in the 2022 Donna Jo Morse Client Counseling Competition, and was the recipient of the 2023 James Campbell Matthews Student Award. Currently, she works as a student assistant in the Diversity, Equity, and Inclusion Office.
With an interest in family law, Kimberley has spent the last few years dedicating herself to these matters. In the Spring of 2023, Kimberley interned with the Family Violence Litigation Clinic, representing clients faced with domestic violence issues before the court. During the summer of 2023, Kimberley worked as a Summer Law Clerk for Arquette Law Firm, focusing on family and matrimonial matters.
This fall semester, she has had a Field Placement in the chambers of the Honorable Richard Rivera and she serves as a part-time Legal Aide for the New York Attorney General’s Office’s Law Enforcement Misconduct Investigation Office.

George Bundy Smith, a distinguished jurist, left an indelible mark on the legal landscape of New York State during his tenure on New York's highest court, the Court of Appeals. This paper examines his judicial philosophy, landmark decisions, and lasting impact on civil rights and social justice within the context of the Court of Appeals.

Raised amidst racial segregation, Judge Smith’s personal experiences with inequalities fueled his commitment to civil rights and social justice throughout his career. His journey from being the only African American in his high school class to serving on New York's high court showcased his dedication to justice, fairness, and equality.

This paper explores Judge Smith’s early life, legal career, and educational journey, which included experiences such as being a Freedom Rider during the Civil Rights Movement. His tenure as an attorney with the NAACP Legal Defense and Educational Fund and as a law secretary to influential jurists provided him with insights into the legal system’s transformative power in promoting civil rights and social progress.

The paper delves into significant rulings and opinions authored by Judge Smith, including his majority opinion in People v. LaValle (2004) that challenged the constitutionality of a “deadlock instruction” in death penalty cases. Another significant opinion, People v. Calabria (2000), addressed prosecutorial misconduct’s impact on a fair trial. Additionally, this paper highlights Judge Smith’s impactful dissent in People v. Tortorici (1999), where he challenged the majority’s approach to due process in cases involving mental competency.

Judge Smith’s commitment to public service extended beyond the bench, as he actively championed civil rights causes, promoted diversity within the legal profession, and engaged in various legal organizations. While his decisions were not without criticism, Judge Smith’s legacy is one of unwavering dedication to justice, equality, and civil rights. His impact on the legal community continues to inspire future generations in their pursuit of a more just society.
To read the paper, open HERE.

Sunday, October 22, 2023

Judge Caitlin Halligan: Past Precedent and Future Predictions

By John K. Penman
John Penman is a third-year student at Albany Law School. Prior to his legal education, John received his bachelor’s degree from Syracuse University where he won the school's undergraduate short fiction competition. At Albany Law, John is a Government Law Center Fellow and participant in Moot Court. 
John has additionally interned with the New York State Justice Center For the Protection of People With Special Needs, New York State Department of Education, and Office of Minority Counsel in the New York State Assembly.
Presently, John is working with clients through the Legal Aid Society of Northeastern New York’s Right to Counsel Program and Community Economic Development Clinic at the Edward P. Swyer Justice Center.

This paper presents a profile of Caitlin Halligan, an accomplished legal professional who recently secured an appointment as an Associate Judge of the New York Court of Appeals. Drawing from various sources, including her early life, education, career trajectory, and past judicial nominations, this paper sheds light on Halligan’s journey and provides insights into her potential role as an Associate Judge.

The analysis explores Halligan’s academic achievements, notable clerkships with federal courts, private practice experiences, and her tenure as a prosecutor in the Manhattan District Attorney’s Office.  This paper also addresses concerns and expectations regarding Halligan’s corporate background, her pro bono work, and her ability to interpret the law fairly and equitably.

Finally, this paper discusses the potential impact of Halligan’s appointment on key legal issues in New York State, such as workers’ rights, corporate liability, and criminal justice.
To read the paper, open HERE.

Wednesday, September 20, 2023

Search and Seizure Under Chief Judge Wilson

Will his elevation lead New York to greater protections of privacy and freedom from government interference?

By Jordyn Conway
Jordyn Conway is a third year student at Albany Law School, where she is serving the community as Pro-Bono Scholar in her final semester.
Prior to attending law school, Jordyn was employed as a planning consultant addressing municipal and land-use issues in New York State. She earned her bachelor’s and master’s degrees from the SUNY ESF at Syracuse University, and briefly studied environmental planning and policy at University College Dublin, Ireland.
In addition to her academic studies at the law school, Jordyn has served as the Co-Chair for the Women’s Leadership Initiative Fellowship, Director of Finance the Moot Court Program, Sub-Editor for the Government Law Review, Teaching Assistant for Professor Armstrong’s Torts course, and has interned for the New York State Supreme Court, 4th Judicial District. This summer she is working as Summer Associate for Whiteman, Osterman & Hanna, LLC.

It is anticipated that Chief Judge Rowan Wilson’s tenure as the leader of the New York Court of Appeals will take the state’s highest court in a more liberal direction, especially in consideration of the rights of the accused. As demonstrated in Chief Judge Wilson’s opinions, and even more notably in his dissents, he has expressed his views on how New York law should be interpreted and applied in cases where the protection of privacy related to search and seizure is at issue.

Overall, Chief Judge Wilson’s decisions have revealed that he has a rather liberal stance on Fourth Amendment federal issues and Article 1, Section 12 issues under New York’s state constitution. In multiple cases, Chief Judge Wilson has dissented where he felt the majority was too lenient in approving searches and that the standards for seeking or implementing a warrant needed to be heightened. Additionally, his dissents have argued for greater protections stemming from the state constitution rather than defaulting to the minimum protections offered by the federal Constitution.

This paper explores Chief Judge Wilson’s dissents in search and seizure cases to provide a legal analysis with regard to his views and how he might approach such issues in the future as Chief Judge of the Court of Appeals. 
To read the paper, open HERE.

Thursday, August 24, 2023

The Story of Happy the Elephant

Matter of  Nonhuman Rights Project, Inc. v. Breheny

By Dylon T. Newkirk
Dylon Newkirk has just begun his final year at Albany Law School and is expecting to graduate in May of 2024. During his time at Albany Law, Dylon has held various executive board positions. Dylon is the treasurer of the Historical Society of the New York Courts-Albany Law Chapter, Social Media Director for the Albany Law Golf Club, and treasurer and Assistant Captain for the Albany Law Hockey Club. Dylon is also a law clerk at Pierro, Connor & Strauss, LLC.
Prior to attending Albany Law, Dylon attended SUNY Albany, earning a Bachelor's degree in Political Science with dual minors in Business and Economics. Outside of the classroom, he greatly enjoys any time spent outdoors – whether he’s teeing it up on the links, or strolling through his carefully manicured flower garden.

The New York Court of Appeals has historically leaned liberal and been ahead of its time. The highest court in the state of New York has been on the forefront of guaranteeing rights years ahead of other states and the federal government. Unfortunately, that historical trend did not hold true in the case of Matter of Nonhuman Rights Project, Inc. v. Breheny.

Happy is a fifty-one-year-old Asian elephant who is currently being housed in the Bronx Zoo. Happy has been there for most of her life, stuck for the entertainment of millions of people, after she was stolen from Thailand as an infant elephant. But things were not always so bad for Happy. At one point in time, she had her herd, but they have slowly died off. Therefore, Happy now lives in solitary confinement.

A petition for habeas corpus was brought on Happy’s behalf, but the Court of Appeals ruled that habeas corpus can only apply to humans. Did the court rule incorrectly? What can we make of the longest dissent in Court of Appeals history? Could a new court possibly reverse the error? This paper takes an in-depth look at Nonhuman Rights Project v. Breheny and attempts to answer these questions.
To read the paper, open HERE.