People v. Daria N. Epakchi
Relevant Facts: A motorist was ticketed for failing to stop at a stop sign. The JHO dismissed the simplified traffic information because the prosecution failed to timely file a supporting deposition and the prosecution filed a new information with a supporting deposition. In 1991, the Court of Appeals had ruled that, after a facial insufficiency dismissal of a local court accusatory instrument, the People could renew the prosecution, as the CPL did not prohibit doing so. On appeal after trial, the Appellate Term for the Ninth and Tenth Judicial Districts reversed the conviction “as a matter of discretion in the interest of justice” and dismissed the information, applying its own line of cases requiring “special circumstances” for the People to prosecute a new simplified information after dismissal of the original instrument for failure to serve a supporting deposition. The Appellate Term found no special circumstances here. The People were granted leave to appeal.
Issues Before the Court: Did the Court of Appeals have jurisdiction where the Appellate Term ruling was characterized as an exercise of discretion in the interest of justice and was the Appellate Term’s dismissal of the simplified traffic information proper?
Holding: In a 6-1 decision (Judge Wilson dissenting, see below), the Court held that it had jurisdiction over the appeal as it was not bound by the Appellate Term’s characterization of its reversal. In requiring “special circumstances,” the Appellate Term had actually created a new rule, and whether that rule was consistent with the CPL and the Court’s precedent was a question of law appealable and reviewable by the Court. On the merits, the Court held that the Appellate Term had no authority to create a special circumstances rule, as that rule was inconsistent with the Court’s 1991 case and contravened the CPL by erecting an extrastatutory barrier to reprosecution. Reversed and remitted.
Judge Wilson’s dissent is the big-ticket item here. He identifies and decries numerous issues around the Court’s limited jurisdiction and its bizarre consequences that will resonate with postconviction practitioners.
Preliminarily, Judge Wilson disagreed that the Court had jurisdiction, reasoning that the Appellate Term had exercised its interest of justice powers, as it was authorized to do, to express its sense of what justice required, nor did its requirement of special circumstances constitute an absolute bar to reprosecution. The Appellate Term adopted a presumption to guide its exercise of discretion, not a rule. Judge Wilson called out the Court’s double standard – the Court never entertains appeals when the Appellate Division refuses to exercise its interest of justice in the defendant’s favor to reverse a conviction or reduce a sentence using similar “special circumstances” language, but did so here by finding that the Appellate Term’s practice created a reviewable issue of law. “Sauce for the goose is sauce for the gander; either both or neither constitutes a reviewable rule.”
Although Judge Wilson found that consistent and honest application of the present jurisdictional rules required a different result in the case at hand, he used his dissent as a platform to call for the legislature to expand Court of Appeals jurisdiction to include interest of justice review powers – a restriction that was borne of a time long ago when the Court had a crushing backlog and needed to restrict its docket. Not so today, he noted, when the Court’s docket has “fallen to historic lows.” The absence of interest of justice powers hobbles the Court’s ability to properly do its job, he explained. The Court can’t fulfill its basic mandate to foster the development of the law, ensure statewide harmony in the administration of justice, and do substantial justice in each case because of the perversities and absurdities that result from its limited powers of review and its inability (or perceived inability) to reach unpreserved issues.
Among the problems: a “cottage industry”within the Court focusing on the “niceties of preservation instead of the substantive question of statewide importance that brought the appeal to the Court in the first place;” an inability to develop the law properly and fully when critical sub-issues that emerge in the course of the appeal were not specifically preserved below; and the stunted development of the law when the Appellate Division decides an unpreserved issues of law that the Court of Appeals is then powerless to review. The Appellate Division ends up creating binding precedent for its department that is immune from review, a situation that Judges Pigott and Smith critiqued and condemned.
Judge Wilson noted that judicial reform in this area has been sought for decades, citing in particular, Matthew Bova, A Sufficiency-of-the-Evidence Exception to the New York Appellate Preservation Rule, 19 CUNY L Rev 1 (2015).
CAL Observes: Judge Wilson hits the nail on the head and gives voice to the frustrations of defense appellate practitioners who must often navigate byzantine preservation rules and the prosecution’s love of “gotcha” in trying to persuade the Court of Appeals that it has jursidiction to review an important issue of criminal justice and statewide importance that is not pristinely preserved. Every leave application and every brief must devote disproportionate resources to establishing preservation.
Judge Wilson does provide a roadmap for practitioners to argue, using the Epakchi majority, that an appellate court’s refusal to exercise its interest of justice powers in the absence of special or unusual circumstances is reviewable, that is, that the standard the appellate court is using is subject to review. Judge Wilson specifically noted here the Second Department’s refusal to exercise its IOJ powers to review unpreserved challenges to the sufficiency of plea allocutions absent “unusual circumstances.” The Third Department’s requirement of “extraordinary circumstances” for any sentence reduction also comes to mind.
However, absent legislative change, we fear that, in this Court, sauce for the goose is never sauce for the gander; while the invocation of special circumstances to hurt the prosecution may find a Court receptive to review, the same invocation against a defendant will not –or will result in the statewide adoption of an unfavorable standard.