Is it proper for a judge to decide an appeal from his own decision? And - is it misconduct for an attorney to concede points that would derail appeal of her own client, in order not to hurt feelings of a law school classmate-judge before whom she is practicing?

I wrote on this blog previously about #judgeRobertMulvey who first assigned judges to my husband's case in the court below, claimed in federal court, in order to obtain judicial immunity, that he acted when assigning such judges in his judicial capacity, and then was conveniently promoted to the Appellate Division right after my husband has filed the appeal from that decision, and dismissed that appeal as an appellate judge on fabricated grounds.

To me, that was no question that it was unlawful for a judge to decide on appeal a case where he acted in his judicial capacity in the court below.

Apparently, Judge Mulvey is not alone in doing what he did.

A case has been argued on September 6, 2017 in the highest court of the State of New York - New York State Court of Appeals, whether it was a violation of due process for a judge not to recuse himself from reviewing an appeal from a judgment of criminal conviction that the same judge made as a trial judge.

In other words, the same judge was the trial judge in a non-jury trial in a criminal case, and the appellate judge from his own decision at the trial level.

Here is the digest of the case published by the New York State Court of Appeals.

The appellate defense #attorneyDanielleNeroniReilly argued that failure of the trial judge to recuse from reviewing the appeal from his own decision is a violation of due process.

She referred to a federal statute, 28 U.S.C. 47, enacted by the US Congress in 1948, nearly 70 years ago, which says:

"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

Apparently, the U.S. Congress enacted that statute based on due process concerns involved when a judge would review criticism of his own decision at the trial level.

The U.S. Congress, 70 years ago, considered that the possibility of bias in such a situation is impermissible.

Yet, in New York there are no such prohibitions by statute - even there should be, as a matter of federal constitutional due process of law, which is what is argued in People v Novak.

The case was already orally argued, and a decision is pending.

It is a great victory for the defense attorney that she even got the case before the Court of Appeals that casually rejects cases with "insubstantial constitutional questions", even though the New York State Constitution and a specific New York State statute mandates acceptance of all constitutional question cases for review.

A close-to-retirement (and now retired) judge of the court actually argued, in a vigorous dissent, that what the court is doing in rejecting constitutional question cases is not proper or legal.

==

NEW YORK COURT OF APPEALS

2010 NY Int. 24

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This opinion is uncorrected and subject to revision before publication in the Official Reports.

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2010 NY Slip Op 01349

Decided on February 16, 2010

SSD 4

In the Matter of Alan Kachalsky, Appellant,

v

Susan Cacace, & c., Respondent.

Decided February 16, 2010:

Appeal dismissed without costs, by the Court sua sponte,

upon the ground that no substantial

constitutional question is directly

involved. Chief Judge Lippman and

Judges Ciparick, Graffeo, Read,

Pigott and Jones concur. Judge

Smith dissents and votes to retain

jurisdiction in an opinion.

SMITH, J. (dissenting):

I dissent because I think the dismissal of this appeal exemplifies an amorphous definition of "substantial constitutional question" that is at odds with CPLR 5601 (b) (1) and the New York Constitution.

Article 6, § 3 (b) (1) of the New York Constitution says that appeals to this Court may be taken in civil cases and proceedings:

"As of right, from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding wherein is directly involved the construction of the constitution of the state or of the United States .

. . ."

CPLR 5601 (b) tracks the constitution:

"Constitutional grounds. An appeal may be taken to the court of appeals as of right:

"1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States . . . ."

Neither the constitution nor the statute says that the constitutional question involved must be "substantial," but we have interpreted them to mean that. And the interpretation makes sense, if "substantial" is taken literally. The authors of the constitution and the statute surely did not intend to burden our Court with appeals as of right based on questions that are without substance, i.e., frivolous. As Karger points out, the substantiality requirement "is an obviously necessary safeguard against abuse of the right to appeal on constitutional questions, for otherwise the right to appeal would turn on the ingenuity of counsel in advancing arguments on constitutional issues, howsoever fanciful they might be" (Karger, Powers of the New York Court of Appeals § 7:5, at 226 [3d ed rev]).

But we have at times followed the practice — one in which, I confess, I have joined — of giving "substantial" a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602. I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it.

This case illustrates the point. Petitioner's argument, rejected by the courts below, is that Penal Law § 400.00 (2) (f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment . I make no comment on the merits of either issue, except to say that neither is insubstantial. The first is of such great substance, and current importance, that the Supreme Court has granted certiorari to consider it (McDonald v City of Chicago, __US__, 130 S Ct 48 [2009]). The second issue, in light of District of Columbia v Heller (__US__, 128 S Ct 2783 [2008]), unquestionably presents fair ground for litigation. On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful.

There is, I recognize, a perfectly reasonable argument that, if we had discretion about whether to take up these issues now, we should choose not to do so; it might make sense to wait to see how the Supreme Court decides McDonald.

I would not quarrel with that exercise of discretion, if I thought the discretion existed. I think, however, that petitioner has a constitutional right to have us hear this appeal, and that's all there is to it.

==

The mere fact that the New York State Court of Appeals, the court that rejects nearly all constitutional question as of right appeals, and especially those pertaining to recusal of judges, as a matter of their own (illegal) policy, even took this case, means that the court did accept that there is at least a POTENTIAL constitutional question in the case.

Yet, at least from what I can see reported in New York State Journal, judges of the New York State Court of Appeals tried to water down the importance of the federal constitutional question by confronting the appellate attorney with a question which the attorney - judging by her answer - perceived as threatening to herself and started to hedge, which, in my opinion, hurt her position.

As New York State Law Journal reports, 

"Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias."

The question, while not illegitimate, was threatening, if you take into consideration that that particular attorney's father and stepmother's law licenses were revoked for criticism of judges in court - whatever the official reasons were given in the actual orders of disbarment of her father and suspension of her stepmother. 

And, it is a matter of public record that the same Judge Jenny Rivera participated in twice-rejecting the constitutional question appeal of the stepmother as to: whether it was a 1st Amendment and due process violation for a judge to be allowed to punish an attorney for the contents of a motion to recuse, and for the disciplinary authorities to allow to pull the attorney's law license without a hearing because of such a vengeful sanction.

So, it is the law in New York that your law license may be pulled because you legitimately make a motion to recuse a judge, the judge will then sanctions you in revenge, and that's it, no further hearings, your law license will be pulled just like that.

And, presumably knowing the law of attorney discipline as to criticism of judges, attorney Reilly, a mother of young children, answered that question, a question of intimidation to any attorney in New York.

A non-intimidated attorney would answer this question - BOTH.

BOTH appearance of impropriety AND the potential for actual bias are a concern when a trial judge reviews his own trial decision on appeal - because the litigant cannot get into the head of the judge who would be deciding an appeal (and thus criticism) of his own decision in the court below, but, knowing "human frailties", may legitimately suspect that the judge would not like criticism of his own decision and will affirm his own decision simply because he is partial to himself.

Yet, by giving such an honest answer, an attorney can subject herself to the potential ostracism in court by the same supposedly "fair" judge, before whom she, no doubt, continues to practice - so an attorney under such circumstances may have a personal reason to hedge.

Accusing a judge of actual bias in New York, even on good record and with good grounds, has become a suspension offense, and the attorney knew it, based on what happened to two of her own family members.

So, she hedged and answered this:

"Appearance of impropriety."

Now that would have been enough of an answer to that question.

But, the attorney who has young children to support, was apparently intimidated by the question and did not want to part with her career by even having a shadow of a doubt that she may accuse a judge of actual bias or even imply it, so she went on.

"Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case," Reilly said. "But that's not what I'm asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law."
Now, why an attorney would say "Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case" while contending that appellate review by that same Judge Sypniewski amounted to now appellate review at all - specifically because of a potential of bias in such a case?

And why should an attorney, while putting in a question of LEGAL THEORY, whether a judge MAY, as a matter of due process of law, be allowed to review an appeal from his own decision, consider it necessary to shoot her own argument in the foot (to the detriment of her client) by claiming that:

1. she actually knows that particular judge; and
2. that she actually knows that particular judge to be "fair through and through".

If the judge is fair through and through, there is no point bringing an appeal, because there would be no potential for bias, and the client should simply accept his fate.

An attorney is the official voice in court of his client, so it was not Danielle Neroni Reilly, but it was Brian Novak who told the court that HE accepts that Judge Sypniewski is "fair through and through".  Nothing like selling your client out, to save yourself.

And, the question is whether the client allowed attorney Reilly to concede these significant points on the appeal, that the judge whose decision to (1) decide an appeal from his own judgment; and (2) decide it (surprise, surprise!) by affirming his own judgment against the defendant had no indication of actual bias, and that the judge was "fair through and through".

I highly doubt that any client would knowingly shoot his own appeal that he paid for in the foot this way.

Yet, that statement of Novak's attorney renders his appeal, in my opinion, frivolous - since he is appealing a decision of an admittedly fair judge who was admittedly fair to him in that particular case.  Let's see whether the Court of Appeals would use that sellout admission against Brian Novak - I am sure they will.

My question on reading the article about this oral argument was - why?

Why take this case if you do not have the courage to argue it the way it has to be argued?

Why not anticipate this question and hedge when it was asked?

After having the courage of bringing this case all the way through to the Court of Appeals, why hanker down and defeat your own argument - that a situation where a judge decides an appeal from his own judgment is fraught with  a great, impermissibly dangerous potential of ACTUAL BIAS?

Anyway, the case is in, it has been argued, and we are now waiting for the decision of the New York State Court of Appeals.

It is time for New York to emerge out of the cave and admit that a person must not "sit in judgment of himself" and to evaluate propriety of his own decisions.

The U.S. Congress has decided the same thing, as attorney Reilly correctly mentioned in her argument, in 28 U.S.C. 47, and that statute has been enacted long time ago.

And, while the New York State Court of Appeals may still continue to wiggle (as Judge Jenny Rivera did with her intimidating question) around the constitutional question and claim that it is "merely" a question whether there was an "appearance of impropriety" -

especially since the defendant conceded through his attorney that the judge was "fair through and through", and, even more so, that "there is no indication that [the judge] had actual bias in this case" -

other that the judge taking his own decision and affirming it, that is 

- the question remains, and is actually broader than posed in this particular case: may judges, as a matter of due process, be allowed to review and make decisions on criticisms of themselves, decisions involving people's lives and livelihoods - whether the criticism was in a motion to recuse, or in an appeal from the judge's own decision.

This question must be rhetorical.

Yet, unfortunately, it is not in New York.

One more question that the prosecution in this case raised - and decision of which has important consequences for litigants in New York in both civil and criminal cases - may a judge review motions to vacate the judge's own decisions.

In my case, I was sanctioned by the judge for making a motion both to vacate his prior decision and to recuse from consideration of such a motion because of the judge's bias and prior misconduct in that same case.

Here is what prosecution in People v Novak argued, according to the New York State Court of Appeals' digest of the case:

Of course, it is disingenuous for the prosecution to argue that

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

First of all, "goes uncontested" is an unjustified generalization which is not true in every case, such motions may still be made.

Second, if such "common practice" does go uncontested, the prosecution must know what the law in New York is in making motions to recuse a judge - even in criminal cases, considering the fate of criminal defense attorney John Aretakis who was

• suspended for making a motion to recuse a judge in a criminal case,
• where the disciplining court (which was also an appellate court in a criminal case) actually taught the judge at the trial level how to sanction him correctly so that the sanction would stick:

"In 2005, Christian F. Hummel, Acting County Judge of Rensselaer County, sanctioned respondent for his frivolous conduct in making a recusal motion in a criminal matter.

Judge Hummel found that respondent had made reckless and unsubstantiated charges that the Judge had participated in a criminal conspiracy to predetermine cases, had committed federal mail fraud, had regularly engaged in impermissible ex parte communications, and had engaged in a conspiracy to tamper with court files.

On appeal, this Court found that any such sanctions should have been imposed under Judiciary Law §§ 750 and 751 rather than 22 NYCRR 130-1.1 (People v Allen, 34 AD3d 1044 [2006]).

Upon remittal, Judge Hummel held a hearing, found respondent in contempt of court pursuant to Judiciary Law § 750 and imposed the maximum allowable fine (see Judiciary Law § 751 [1])."

So, here is the timeline of John Aretakis case:

1. The attorney makes a motion to recuse a judge from a criminal case, on the following grounds:
1. criminal conspiracy to predetermine cases;
2. committing federal mail fraud;
3. regularly engaging in impermissible ex parte communications;
4. engaging in a conspiracy to tamper with court files
2. The judge who was accused of all those illegal activities, sat in judgment of the motion to recuse, refused to recuse, and sanctioned the attorney who dared to confront the judge with such a criticism, for "frivolous conduct". 
3. Of course, the rules of criminal conduct do not apply in criminal proceedings, so the sanction was illegitimate.  But, the Appellate Division (which is also the one-stop no-appeal disciplinary court for attorneys in that jurisdiction) did not restrict itself to ruling on appeal - that the Appellant was correct, that the judge was incorrect, and that sanctions were reversed.  No.  The Appellate Division went outside of its limited authority on appeal and actually TAUGHT the judge in question that, if he wants to sanction the attorney, he needs to do it under Judiciary Law 750 and 751 and, instead of reversing and dismissing the sanctions and calling it a day, returned the case to the court after they taught the judge who was offended by a motion to recuse how to act as a judge, jury, prosecutor and unsworn witness in the same case in sanctioning the attorney "properly" for making that motion to recuse.  The "heroes" who decided that case were:  judges Crew III, Mugglin, Lahtinen and Kane.  Judges in New York, by New York State Constitution, are prohibited to practice law.  Giving legal advice to a judge on an issue that is irrelevant to an appeal whether it was legitimate to sanction attorney Aretakis for frivolous conduct, was illegal for judges Crew III, Mugglin, Lahtinen and Kane.  But, judges Rose, Lahtinen, Kane, Kavanagh and Stein did not consider it a constitutional problem for his disciplinary case, and accepted the illegal sanctions as legitimate, and as not entitling attorney Aretakis to even a hearing before his law license and livelihood was suspended.  Of course, judges Lahtinen and Kane would not criticize judges Lahtinen and Kane for their own illegal activities - same as judge #MatthewSypniewski in People v Novak would change his mind as to validity of his own verdict of conviction (and you need to have a lobotomy to believe that actual bias was not involved here).  Note that part of the panel unlawfully yanking the license of criminal defense attorney John Aretakis for making a motion to recuse a judge was Judge Leslie Stein whose ascension to the New York State Court of Appeals was a quid pro quo by the corrupt NYS Governor Andrew Cuomo for her decision on an important case in favor of Cuomo's subordinate DEC Commissioner as a response to Cuomo's nomination of Leslie Stein to the Court of Appeals, will be one of the panel of judges in deciding People v Novak as to propriety of a judge to be allowed to punish a litigant who dared to appeal the judge's decision.  Judge Stein is apparently the best expert on the particular topic of punishing litigants for criticism of judges, so we should not hold our collective breaths as to what her decision is going to be in People v Novak.  And, attorney Reilly was arguing in front of Judge Stein, who took away livelihood of attorney Aretakis because he dared to claim actual bias and misconduct of a criminal trial judge - thus, apparently, attorney Reilly hedged and, instead of recognizing that actual bias may have been involved, shot her client's case in the foot and conceded on behalf of her client that (1) the judge was "fair through and through" in general, and (2) there is no indication of the judge being biased in this particular case.

Once again, the prosecution was making the point that  

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

To me, that is the same, no offense, as claiming that the victim of rape did not fight back because she was afraid that the rapist will kill her if she does.

Unfortunately, the rapist in this case is the court system.

And, by the way, the supposed personal knowledge by the attorney of #JudgeMatthewSypniewski,

that he is supposedly "fair through and through", was unsworn testimony of the defense attorney outside of the record - which should have been stricken off the record, but, I am sure, will never be, and will be used against the client.

Attorney Reilly does, in fact, know Judge Sypniewski, and knows him very well.

Judge Sypniewski was likely Attorney Reilly's law school classmate - they went to the same law school and were admitted to practice law in the same year, 2002.

And, Judge Sypniewski was a prosecutor in Schenectady County while Danielle Neroni Reilly was a prosecutor in Rensellaer County, and, attorney Reilly likely knew and possibly interacted with prosecutor Sypniewski in their mutual professional capacities as prosecutors.

So, of course, attorney Reilly would not want to overturn her own apple cart by criticizing, for even potential of actual bias, her former law school classmate and colleague, now a judge of a powerful criminal County Court who can make or break her career as a criminal defense attorney - and as an attorney of any kind.

Which brings me to the question - why did attorney Reilly even take the case at all if she was not prepared to argue the POTENTIAL of ACTUAL BIAS, as the legal argument in a case invoking as a parallel 28 U.S.C. 47 required?  If she knew she is not prepared , likely for multiple personal reasons, to hurt the feelings of her former law school classmate and former prosecutorial colleague, was not prepared to fully raise the issue of the constitutionally impermissibly dangerous possibility of actual bias when a trial judge reviews his own decision in a criminal case on appeal?

Why?

Was it just the money?

As to the supposed "fairness" of any judge to review an appeal from his own decision.  

Imagine that your trial attorney does an appeal from your conviction.

What will be the incentive of a trial attorney to shoot himself in the foot and raise the issue of his own ineffective assistance of counsel that has led to your conviction.

Similarly, if a judge whose career advancement and/or reelection and additional perks to his judicial career (speaking offers, teaching offers, overseas travel offers) depend on his squeaky clean reputation, where the less reversals are the better, how likely it will be that the judge will shoot himself in the foot, calmly and dispassionately review arguments against himself - possibly, raising issues of judicial bias and misconduct - and reverses himself?

There was such a chance to make a difference in a lot of people's lives by presenting and handling this case properly.

Regrettably, that chance was blown.