Sunday, February 24, 2013

Patterns in Pigott's Dissents

By Julia Steciuk
Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College.  During her first year at Albany Law, Julia became Co-Director of Albany Law's Animal Pro Bono Project, as well as President of the school's Animal Legal Defense Fund chapter.  Julia is also a Research Assistant for Professor Vincent M. Bonventre, and an Associate Editor for the Center for Judicial Process.  She spent her summer interning with the Albany County District Attorney's Office.
This essay was prepared from research Julia did for Prof. Bonventre. 

At the time of this writing—December 2012—New York Court of Appeals Judge Eugene Pigott had dissented forty-five times since Jonathan Lippman was appointed Chief Judge in 2009.

Judge Pigott dissented in twenty-two criminal cases.  Of these, he dissented in favor of the criminal defendant’s interests five times.  Against those interests seventeen times.

Judge Pigott dissented in favor of criminal defendants’ right to counsel in two cases.  In one case, the defendant requested new counsel and, according to Pigott, the request was denied without the required minimal inquiry by the trial court.[1]  

In the other, the trial court disqualified defendant’s counsel after the defendant gave a waiver for conflicts that might arise.[2]  Judge Pigott maintained that the defendant should have been able to select the counsel of his choosing.[3]

Another two dissents in favor of the criminal defendant involved warrantless searches and seizures.  In one case, Judge Pigott maintained that there were no exigent circumstances to justify a warrantless search and seizure because the police had days to obtain a warrant.[4]

In the other case, Judge Pigott wanted to defer to the appellate court’s determination that there was no emergency.[5]  He rejected the majority’s contention that the appellate court’s decision was made “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal.”[6]  To Pigott, that decision had been a purely factual one.

Judge Pigott’s final dissent in favor of the criminal defendant’s interests involved sentencing.  In this case, he agreed with the majority that a post allocution motion was not required in order to challenge on appeal the trial court’s failure to inform the defendant of the duration of post-release supervision.[7] 

However, he argued that it was wrong for the majority to find a violation of the defendant’s constitutional rights and then do nothing to remedy the violation.[8]  Judge Pigott would have reversed the conviction because the defendant was not advised of his post-release supervision.  Interestingly, Judge Pigott dissented in one of the precedents that he relied upon.[9]

Judge Pigott also dissented in twenty civil cases since Lippman became Chief Judge.  Of these, nine involved workers’ compensation.

In four cases—involving a physician, a law firm, a New York corporation, and an Illinois businessman—Judge Pigott dissented in the plaintiffs’ favor, finding an issue of fact that would allow each to proceed to trial.[10]

However, Judge Pigott went against the majority’s awarding the plaintiff a trial in four other cases where plaintiffs were injured from an accident, or at work.[11]

In the ninth case, a woman was injured when she fell off an office desk while cleaning a window.[12]  The majority held that Goldman Sachs was not liable to the plaintiff because Goldman did not hire plaintiff’s employer to clean the window nor did Goldman Sachs exercise any control over the plaintiff’s work.[13]  

As a result, the Court awarded Goldman Sachs’ motion for summary judgment.  Judge Pigott dissented, finding that a question of fact remained as to who was in control of the plaintiff’s cleaning.[14]

Synthesizing the above cases, Judge Pigott does not dissent in favor of the criminal defendant unless he feels there is a blatant constitutional violation.  A criminal defense attorney hoping to gain Judge Pigott’s vote should also note that Judge Pigott frequently argues in his dissents that appellate issues are unpreserved for review.[15]

Likewise, a litigator vying for Judge Pigott’s vote in a worker’s compensation or personal injury case involving summary judgment should be mindful that 20 percent of his dissents are comprised of these kinds of cases.  He has strong opinions regarding this topic. 

Judge Pigott’s dissents, taken as a whole, suggest that he takes a common sense approach to resolving legal issues, is very mindful of what roles courts ought to play and when, and will defer to precedent even when he doesn’t agree with it.

[1] People v. Porto, 942 N.E.2d 283, 289 (2010) (Pigott, J., dissenting).
[2] People v. Carncross, 927 N.E.2d 532, 536 (2010).
[3] Id. at 540 (Pigott, J., dissenting).
[4] People v. McBride, 928 N.E.2d 1027, 1033 (2010) (Pigott, J., dissenting).
[5] People v. Liggins, 945 N.E.2d 445, 446 (2011) (Pigott, J., dissenting).
[6] Id. at 445 (Pigott, J., dissenting).
[7] People v. Boyd, 908 N.E.2d 898, 902 (2009) (Pigott, J., dissenting).
[8] Id.
[9] People v. Hill, 879 N.E.2d 152, 156 (2007) (Pigott, J., dissenting).
[10] Kipper v. NYP Holdings Co., 912 N.E.2d 26, 33 (2009) (Pigott, J., dissenting); Greenberg, Trager, & Herbst LLP v. HSBC Bank USA, 958 N.E.2d 77, 87 (2011) (Pigott, J., dissenting); SPCA of Upstate New York, Inc. v. American Working Collie Ass’n, 963 N.E.2d 1226, 1230 (2012) (Pigott, J., dissenting); Ovitz v. Bloomberg L.P., 967 N.E.2d 1170, 1174 (2012) (Pigott, J., dissenting).
[11] Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 959 N.E.2d 488, 496 (2011) (Pigott, J., dissenting); Doomes v. Best Transit Corp., 958 N.E.2d 1183, 1192 (2011) (Pigott, J., dissenting); Gronski v. County of Monroe, 963 N.E.2d 1219, 1224 (2011) (Pigott, J., dissenting); In re Seiferheld v. Kelly 948 N.E.2d 1285, 1289 (2011) (Pigott, J., dissenting).
[12] Ferluckaj v. Goldman Sachs & Co., 908 N.E.2d 869, 869 (2009).
[13] Id.
[14] Id. at 874 (Pigott, J., dissenting).
[15] People v. Ingram, 967 N.E.2d 695, 696 (2012) (Pigott, J., dissenting); People v. Riley, 973 N.E.2d 1280, 1281 (2012) (Pigott, J., dissenting); People v. McAlpin, 960 N.E.2d 435, 437 (2011) (Pigott, J., dissenting); People v. McKinnon, 937 N.E.2d 524, 527–28 (2010) (Pigott, J., dissenting).