Academic journal article Albany Law Review

Richard C. Wesley: Voting and Opinion Patterns on the New York Court

Academic journal article Albany Law Review

Richard C. Wesley: Voting and Opinion Patterns on the New York Court

Article excerpt

I. INTRODUCTION

Judge Richard C. Wesley's record in criminal cases is strongly pro-prosecution. (1) As a member of the New York State Court of Appeals, (2) the state's highest tribunal, he has been a consistent vote for the prosecution in appeals that divided his colleagues. (3) In common parlance, he has been a very conservative (4) judge in criminal cases, almost invariably siding with the interests of law enforcement against those of the accused. Moreover, his record is quite conservative whether viewed alone or in comparison with those of the other members of the New York court.

Judge Wesley's record in civil cases is considerably less amenable to such labeling. (5) Indeed, his voting has been more than three times as supportive of individual claims of right or entitlement in divided civil decisions as in criminal ones. (6) Some of the difference between his civil and criminal records is attributable to his strong support in civil appeals for private property rights against local government restrictions. (7) But closer examination of his record also reveals votes--and even voting patterns--that are typically associated with liberal jurists.

Even in appeals presenting strong competing arguments, he sided with workers over their government employers, tenants over landlords, discrimination claimants over defenders of an institutional system, and tort plaintiffs over civil defendants or insurance companies. (8) While his overall voting record in civil cases can hardly be classified as liberal, neither can it fairly be characterized as strongly conservative, pro-government, or unsympathetic to individual rights, liberties, analogous public protections, or tort claims.

An examination of the specifics that add up to these general observations about Judge Wesley's record is instructive. The context provided by the positions Wesley took in particular cases, as well as by overall voting statistics for him and his colleagues on the New York court, helps illuminate the foregoing broad outlines.

II. CRIMINAL APPEALS (9)

Since Judge Wesley took his seat on the New York Court of Appeals, he has compiled an overwhelmingly pro-prosecution voting record. He sided with the position more favorable to law enforcement, and thus less favorable to the accused, in 88% of the divided decisions. Stated otherwise, in only 12% of the divided appeals raising a criminal issue or in only five out of the forty-three such appeals--did Wesley take the position adopted by at least one of his colleagues that was more favorable to the defendant. (10)

Moreover, his record places him at the pro-prosecution end of the Court of Appeals' spectrum for the six-plus year period from the time of his appointment. (11) In fact, most members of the court with whom he served, both current and retired, compiled voting records that are at least twice as supportive of the rights of the accused. (12) No colleague of his, retired or current, voted more consistently to reject the claims of criminal defendants. (13)

None of the foregoing necessarily suggests anything about the substantive merits of Judge Wesley's record or of his votes in particular cases. Rather, the point is simply that his record is decidedly pro-prosecution, both absolutely and relatively. Moreover, an examination of individual appeals substantiates precisely what the numbers strongly suggest. As is evident from a review of Wesley's opinions and votes in several illustrative cases, the judgment he has exercised in criminal appeals--his weighing of competing interests--has almost invariably been inclined in favor of law enforcement.

In his first year on the court, Judge Wesley penned a lone dissent in People v. Burdo, (14) arguing against the application of New York's state constitutional right to counsel rule, which in many respects is more protective of the accused than corresponding federal case law. (15) Court of Appeals precedent prohibits police questioning on any charge when the accused is in custody on a charge for which he has an attorney. …

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