The Ups and Downs of New York's Right to Counsel: The Cooke, Lippman, and DiFiore Courts

By Chloe Petry

Chloe Petry is a 2025 graduate of Albany Law School. Prior to attending Albany Law School, she earned a bachelor’s degree from SUNY Fredonia, studying Biology and Botany. In law school, Chloe was the Managing Editor for Production, Research, and Writing for the Journal of Science and Technology, Vol. 35. She was also the President of the Albany Law School Environmental Law Society.

New York’s state constitutional right to counsel is far more robust and expansive than its federal counterpart due to the New York Court of Appeals’ (“the Court”) extensive review of the right, which furthered constitutional protections for the accused. However, as this paper will discuss, the Court’s review has not always been as progressive, nor has it continued to build on existing precedent.

It appears the Court has taken steps backwards and weakened the right. The New York Constitution holds that any “suspect in a criminal matter . . . who requests representation may not be questioned further in the absence of an attorney.” Also, “[b]y extension, a suspect who has invoked the right cannot voluntarily waive the right to counsel without an attorney present.”  This right is described as “indelible:” s defined as “marks that cannot easily be removed.” 

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To read the paper, open HERE.

New York’s “Forever Wild” and the Chiefs

Three Chief Judges Opining on the State Constitutional Mandate

By E. Conor Graham

E. Conor Graham is a 2024 graduate of Albany Law School. He earned his bachelor's degree from Siena College, studying philosophy and international relations and affairs.

In law school, Conor was the Executive Editor for Lead Articles of Volume 87 of the Albany Law Review. He also interned at the United States Court for the Northern District of New York and at K&L Gates LLP.

Conor began his legal career as a law clerk to the Honorable Richard K. Eaton at the United States Court of International Trade. 

Article XIV, Section 1 of the New York State Constitution, “the Forever Wild clause,” sets out that “[t]he lands of the state . . . constituting the forest preserve . . . shall be forever kept as wild lands.  They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed, or destroyed.” It is a unique provision, unlike any other found in the federal or another state constitution, and it protects nearly three million acres of state-owned Forest Preserve land in New York State.

The aim of this paper is to consider both the history and the trajectory of the Forever Wild clause as it comes before New York's highest court, the Court of Appeals, through examining three important decisions related to the Forever Wild clause authored by three different Chief Judges of the court. Further, this analysis has the added benefit of focusing on the court’s leaders—the Chief Judges—presiding at the time of each case. Each section includes a brief discussion of the respective Chief Judge whose opinion will be discussed, followed by that judge’s opinion dealing with the Forever Wild clause.

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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. 

  [1] BENJAMIN N. CARDOZO, LAW AND LITERATURE AND OTHER ESSAYS AND ADDRESSES 34 (F.B. Rothman 1986).

  [2] Vincent Bonventre, NY Chief Judge Nominee Rowan Wilson (Part 1), NEW YORK COURT WATCHER (Apr. 15, 2023), http://www.newyorkcourtwatcher.com/2023/04/ny-chief-judge-nominee-rowan-wilson.html.

  [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), http://www.newyorkcourtwatcher.com/2023/04/part-2-ny-chief-judge-nominee-rowan.html.

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To read the paper, open HERE.

The Role of New York's Chief Judge: Kaye’s, Lippman’s, and DiFiore’s Executive Emphases

By Kieran Murphy

Kieran Murphy, a 2020 graduate of Albany Law School, was the Executive Director of the Anthony V. Cardona Moot Court Program, an Associate Editor of the Albany Law Review, a Dean Thomas Sponsler Honors Teaching Fellow, and President of the Class of 2020. Prior to attending Albany Law, Kieran received a B.S. in Integrative Neuroscience and a B.A. in Economics from Binghamton University. 

While in law school, Kieran served as a judicial extern to the Hon. Thomas J. McAvoy of the U.S. District Court for the Northern District of New York, and to the Hon. John C. Egan Jr. of the New York State Supreme Court, Appellate Division, Third Department. He is the recipient of the New York State Bar Association’s 2019 Judith S. Kaye Outstanding Advocate Award, and a member of the National Order of the Barristers. 

After sitting for the October 2020 Bar Exam, Kieran will begin his legal practice in the litigation department of Milbank, LLP. 

Most often, judges are criticized for decisions that relate to their performance on the bench.  Whether it be their non-compliance with stare decisis, inconsistencies among cases within the same area of the law, or just flat-out disagreement with their analytical processes, the reproach judges experience tends to stem directly from the cases.  Much less chastised, and certainly much less analyzed, is the executive decision-making we give to the chief judges on high courts.  

This paper addresses the policy emphases of the three most recent Chief Judges of the New York Court of Appeals.  Additionally, it analyzes the execution of those policies to determine the extent to which each Chief Judge succeeded in implementing their initiatives.

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To read the paper, open HERE.