New York’s Gray on Investigative Stops

How the Court of Appeals has Restricted Stops of Citizens by Police

By Gerald P. Casertino

Gerald Casertino is currently an incoming associate with Murphy Burns LLP in Albany, New York, focusing on municipal defense and §1983 actions. He has also served as a police officer since 2017.

Jerry graduated summa cum laude from Albany Law School with his J.D. in 2021. He was a member of the Albany Law Review and a Sponsler Fellow/Teaching Assistant in Criminal Law, Torts, and Contract Law. He holds a bachelor’s degree, magna cum laude, from Siena College and is originally from Glens Falls.

The year 2020 will be lauded as forever changing policing, especially in New York State. But the necessity to curb criminal activity and ensure public safety remains.

High-profile police-related deaths, rising crime, and the implementation of bail and discovery reform, all combined with the New York Court of Appeals’ decision in People v. Hinshaw, make the job of police officers more difficult. This paper will address how the New York Court of Appeals has restricted investigative stops beyond what is required by the federal constitution.  

___________________________

To read the paper, open HERE. 

The Supreme Court Sets the Bar, New York’s Court of Appeals Raises It

By Matthew Rimkunas

Matthew Rimkunas, a third-year student at Albany Law School and the Editor in Chief of the Center for Judicial Process, graduated magna cum laude from the University at Albany with a Bachelor of Science degree in Accounting and minors in both Business and Sociology.

Matthew has experience on both sides of the criminal justice system, interning at The Law Offices of Gerard V. Amedio, P.C. as well as the Rensselaer County District Attorney’s Office. He also interned at Ayco, a Goldman Sachs Company, where he worked on tax and estate planning matters. Presently, he is an intern with the Claims Bureau of the New York State Office of the Attorney General, assisting in the defense of tort and contract actions against the State.

Beyond Matthew’s internship experience, he was a participant in the 2019 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition and is currently a Research Assistant for Professor Patrick M. Connors.

The fundamental principles of federalism that ensure state integrity throughout the nation are nowhere more evident than in the state high courts. They are most easily observed in states like New York that vigorously protect civil liberties and frequently blaze the trails that other state—and federal—courts eventually follow. On numerous occasions, the New York Court of Appeals has rejected United States Supreme Court precedents as insufficient for the standards demanded by the New York State Constitution.

This paper highlights instances where New York’s high court went above and beyond the protections afforded by the Supreme Court. Each time it did, the Court of Appeals diverged from a federal constitutional standard to provide greater protections under its State Constitution. As a result, our state’s constitutional law jurisprudence has incrementally transformed into the preeminent body of law that New York is now so well known for. 

_________________________________

To read the paper, open HERE.

Judge Cooke: The Man and His Impact on the Law

By Anthony Sokolowski

Anthony Sokolowski, a third year student at Albany Law School, is the Editor-in-Chief of the Center for Judicial Process. He graduated from Utica College in 2016 with a bachelors in political science and minor in philosophy.  In addition to serving as EIC of the Center, Anthony is also the Executive Editor of Albany Law's Government Law Review and the Treasurer of the Italian American Law Society. Upon graduation, Anthony will be working as an Assistant Distract Attorney at the Oneida County District Attorney's Office.


Lawrence Henry Cooke has been described as “a giant . . . [i]n every good and important way.” For a man who began his work days at four in the morning, it cannot be overstated how impressive his impact on the law, not only on the subject matter he covered, but also on the people he encountered along the way.

This paper examines the Judge’s rise to the court, his key decisions as an associate judge and how they impacted they law as well as his decisions as Chief Judge and their impact on the law. The impact will focus mostly on the impact his opinions had on the criminal law field. Lastly, this work concludes with a discussion on his impact on the people he worked with and concluding remarks.

Born in Monticello, New York, Judge Cooke was heavily influenced by his father, George, who as a graduate of Albany Law School, was elected Sullivan County District Attorney in 1909. George Cooke made the transition from attorney to judge when he was elected to County Judge of the Surrogate and Children’s Court in 1926, a position he would spend the next twenty-two years working. Judge Cooke would learn from his father a lesson he would continue to share throughout his career, “when in doubt, always take the high road.”

Judge Cooke originally attended Harvard Law School before transferring to Albany Law School to obtain his law degree. He began his practice at the law office of John Lyons. While in private practice, he also worked as a volunteer fireman, was elected as Supervisor of the Town of Thompson and even filled his father shoes by becoming elected to the County Judge of Surrogate and Children’s Court in 1959. This ultimately led to his becoming elected to the Justice of the Supreme Court in the Third Department of New York in 1961, which then led to a cross party nomination by then Governor Nelson Rockefeller in 1968 to New York State’s Appellate Division, Third Department.
_____________________________
To read the paper, open HERE.

Immuno AG: The Court of Appeals Strikes Back

By John Chiaramonte

John Chiaramonte is a third-year student at Albany Law School. He graduated from Wake Forest University in 2012 with a double major in Political Science and English.

John currently works part-time as a legal assistant for New York Business Development Corporation, a small business lending company. He is also the assistant coach for the men’s and women’s tennis teams at Siena College.

While his main focus in law school has been business transactions, John found his interest was piqued researching defamation law in New York. This paper was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

For years the New York Court of Appeals has served as the beacon of reason for many other state courts. It was no different when the court confronted the issue in Immuno AG. v. Moor-Jankowski (Immuno II).

The Immuno case serves as a great example of a defining moment where the New York Court of Appeals differentiated state law from federal law, refusing to be bullied by the highest federal court in America. The purpose of this paper is to provide a comprehensive look at the seven year Immuno trilogy.

The paper begins with a background of state and federal law, then examines the Court of Appeals’ first ruling in Immuno I. It proceeds to the Supreme Court’s decision in Milkovich v. Lorain Journal Co., and ends with the Court of Appeals’ second ruling in Immuno II.

This paper concludes that the ruling of the Court of Appeals in Immuno II reestablished a foothold for New York in libel cases.

_____________________________

To read the paper, open HERE.

Supreme Court of Kentucky: Dual Sovereignty Approach to State Constitutional Law

By Michelle K. Piasecki
Michelle Piasecki, a 2013 summa cum laude graduate of Albany Law School, is an associate at the law firm of Couch White LLP, in Albany, New York, and primarily practices in the fields of energy and environmental law.
While at Albany Law, Michelle was a research assistant for professor Timothy Lytton.  As a member of the Albany Law Review, she served as Executive Editor for State Constitutional Commentary during her third year. She also served as the Executive Editor for the Center.
This essay--the latest of several papers to be published by the Center--was originally prepared for the State Constitutional Adjudication Seminar.

State supreme courts across the country approach state constitutional adjudication in different way. Some look primarily to their own state law, some primarily--and some, only--to federal law, and others equally to both or simply make no distinction between the two.

The Supreme Court of Kentucky applies the so-called "dual sovereignty" method. For example, in Riley v. Gibson (2011), a Jefferson Circuit Court Judge had held a closed hearing to determine if a member of the jury was in contempt of court for disobeying the judge’s order to “avoid publicity about the case.”

In issuing its decision, the Supreme Court of Kentucky analyzed both federal and state law without specifically relying on one or the other. Several other recent decisions by the Kentucky Supreme Court produced similar results.

_____________________________

To read the essay, open HERE.

The New York Court of Appeals: Recent Search and Seizure Jurisprudence

By Mackenzie Keane Plaske
Mackenzie is currently a first-year associate at the law firm of Iseman, Cunningham, Riester & Hyde, LLP in Albany, New York, practicing primarily in the field of health care. She graduated magna cum laude from Albany Law School in May 2013.
While at Albany Law, Mackenzie participated in the Health Law Clinic and was a teaching assistant for Civil Procedure, Torts and Criminal Law.  Additionally, she was a Finalist in the Domenick L. Gabrielli Appellate Advocacy Competition.  As a member of the Albany Law Review, she also served as Executive Editor for New York Appeals during her third year.
This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2013. It is Mackenzie's second publication for the Center. (See The New York State Court of Appeals and the Exclusionary Rule: From the Kaye Court to the Lippman Court, March 5, 2012.)


The line between reasonable and unreasonable searches and seizures has proven difficult to delineate. Courts are unable to dictate with particularity when a search or seizure would be permissible or impermissible, because each situation calling for such an analysis presents unique facts and circumstances.

When interpreting and rendering decisions on search and seizure, the Court of Appeals may ground its opinions upon independent state constitutional grounds. Unlike other states, such as Florida, New York has not adopted a lockstep approach to constitutional analysis. Therefore, the Court of Appeals is free to provide more constitutional protection than that provided by the U.S. Supreme Court, and that is exactly what the Court of Appeals has done.

Sometimes, but not always, the Court’s decisions align with those of the U.S. Supreme Court. But, whichever way the decisions fall, the Court of Appeals cites its substantial interest in protecting the rights of the citizens of New York State.

This paper will explore some of the recent Court of Appeals decisions involving search and seizure rights that fall within the ambit of New York State Constitution’s prohibition on unreasonable searches and seizures.
_____________________________
To read the paper, open HERE.

Judge Victoria Graffeo’s Approach to Constitutional Criminal Procedure

By Chelsy Jones
Chelsy Jones, a May 2013 graduate of Albany Law School, is a Law Clerk for the West Firm, PLLC in Albany.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science.  While in law school, she was a Senior Editor at the Center, a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and a Research Assistant for the Albany Law School Clinic and Justice Center.  Chelsy also worked year round as a legal intern at the Schenectady County District Attorney's Office, and acted as the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
She wrote this essay for the State Constitutional Adjudication Seminar, Spring 2013.

            In the realm of criminal constitutional issues, a brief review of recent Court of Appeals opinions authored by Judge Victoria Graffeo reveals an interesting pattern of decisions against the rights of the accused and a strong reliance on state precedent rather than federal.

            In People v. Grice,[1] Graffeo authored an opinion dealing with the constitutional right to counsel and when said right attaches.  In Grice, the defendant argued that his indelible right to counsel attached at the moment his father told the police that he had an attorney.[2]  Judge Graffeo, however, disagreed, and held that actual appearance or communication by the attorney is required for attachment.[3]  She based her decision entirely on the New York Constitution and cited only New York cases in support of her position, relying heavily on precedent.[4]  Graffeo specifically addressed the evolution of New York’s right to counsel jurisprudence and the importance of pragmatic and simple tests to avoid irregularity and uncertainty. 

            Two years earlier, Judge Graffeo authored a precedent-setting decision dealing with search and seizure rights in New York in People v. McIntosh.[5]

The Arizona Supreme Court: The Honey Badger of State Constitutional Analysis

Grace Mellen, a third year law student at Albany Law School, graduated magna cum laude from SUNY Cortland with a degree in Political Science and a minor in History. Presently, she interns with The Honorable David A. Weinstein at the New York State Court of Claims. She has also interned with the New York State Office of the Attorney General. Grace is also a Senior Editor for the Center for Judicial Process.
Grace prepared this paper for Professor Bonventre’s State Constitutional Adjudication seminar, spring 2013.

Since the United States Supreme Court (“U.S. Supreme Court”) handed down the landmark Terry v. Ohio decision in 1968, permitting warrantless stop and frisks based on reasonable suspicion, the issue of search and seizure has been unsettled as states determine how to reconcile the Terry decision with their own constitutions.

Some states, such as Illinois, are comfortable applying the standards of the U.S. Supreme Court to their own constitution, as long as there is no glaring language or legislative history that would force them to do otherwise. Other states, such as New Jersey and Washington, have interpreted their constitutions to offer their citizens more protection against unreasonable searches and seizures, arguing that the provisions within their state constitutions mandate this enhanced protection.

This paper will examine whether the Arizona Supreme Court has chosen to follow the parameters established by U.S. Supreme Court under the Fourth Amendment to resolve search and seizure issues, or if they instead rely on the Arizona State Constitution as their guide. To do this, five cases involving search and seizure issues from 2004 to 2012 will be analyzed. In order to see if the Court follows a clear method of state constitutional analysis, this paper will consider whether the Court relies on the Arizona State Constitution or precedent from the Supreme Court of Arizona.

This paper will also examine whether the Court expands protection against unreasonable searches and seizures, or if it has merely followed the federal parameters set out by the U.S. Supreme Court.

_____________________________

To read the entire paper, open HERE.

State Constitutional Claims: The Important Role of Attorneys in State Courts

By Anna R. Mumford
Anna Mumford, who graduated from Albany Law School this past spring, was the Managing Editor for Business and Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
An  essay of hers was previously published by the Center. (See Decisional Approaches to State Constitutional Claims, April 15, 2012.)
She prepared this paper for the State Constitutional Adjudication Seminar, Spring 2012.


The U.S. Supreme Court has recognized that a state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Whether a state judiciary will construe its own state constitution in a way that affords this broader protection, however, rests principally on attorneys who bring state constitutional claims in state courts.

Attorneys play a critical role in the development of state constitutional law. Attorneys have the duty to properly raise the claim under a state constitution, independently and adequately argue the claim, and persuade the state court to grant greater individual rights under the state constitution than those afforded by the U.S. Constitution.

This article begins with a discussion of the various approaches adopted by state courts in deciding state constitutional issues. The article then provides an overview, based largely on a survey of decisions of the highest courts in several states, on the proper presentation of a state constitutional claim and the consequences if an attorney fails to bring an adequate state constitutional law challenge.

At the outset, it is important for attorneys to understand, not only the relationship between state constitutions and the federal Constitution, but also the approach state courts adopt to analyze state constitutional claims.  “Failure to appreciate the proper sequence of how state and federal constitutional claims are addressed can lead to a great waste of resources of counsel, clients, and the court.”*
_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Essays on State Constitutional Adjudication (Part 2: Anna Mumford and Bronson Stephens)

This is the second of the two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford

Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies.

Read the Essay (click link or see below)

State High Courts Taking Their Rightful Place

By Bronson C. Stephens

Bronson Stephens, a third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.

Read the Essay (click link or see below)

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford
Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


There are three different, basic approaches state supreme courts take in analyzing state constitutional claims—the dual reliance approach, the primacy approach, and the supplemental approach.  Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Texas L. Rev. 977, 983 (1985).

State High Courts Taking Their Rightful Place

By Bronson C. Stephens

Bronson Stephens, a third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.
This essay was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has been published previously by the Center (See, e.g., Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012.)

Three state court opinions examined in the light of articles written by Pollock, Utter and Bonventre reveal some of the many ways state courts are stepping up to claim their place as the shapers of state law and individual freedoms.

The first article, Adequate and Independent State Grounds As A Means of Balancing the Relationship Between State and Federal Courts[1] written by Stewart G. Pollock, and the second Swimming in the Jaws of the Crocodile[2] by Robert K. Utter, speak to the importance of state court involvement in the development of American law; both federal constitutional law and state constitutional law within the individual states.[3]  The two articles by Pollock and Utter, along with the third article Changing Roles,[4] by Vincent M. Bonventre, mention the present threat, ever since Michigan v. Long,[5] that the Supreme Court will overrule a state court’s protection of its citizens.

Essays on State Constitutional Adjudication (Part 1: Steven Sacco and Dana Vitarelli)

This is the first of a two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year student at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare.
Read the Essay

The Interplay Between State and Federal Courts

By Dana Vitarelli

Dana Vitarelli, a third-year law student at Albany Law School, is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology.
Read the Essay

The Interplay Between State and Federal Courts

By Dana A. Vitarelli
Dana Vitarelli, a third-year law student at Albany Law School, is originally from Monroe, New York. She graduated magna cum laude from the State University of New York at Geneseo, majoring in Psychology. While at law school, she has worked at the United States Attorney's Office for the Northern District of New York as well as Albany Medical College. Dana is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology and Chair of the Domenick L. Gabrielli Appellate Advocacy Competition for the Moot Court Editorial Board.
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


Stewart Pollock discusses that the basic principle of the relation between state and federal courts is that the two judicial systems are together responsible for protecting and upholding constitutional rights.[1] He says that respect for state court decisions by the United States Supreme Court is “essential to the continuing vitality of the dual judicial system.” He goes on to state that while the outcome of a case may vary based on the forum in which it is decided, state and federal courts are ultimately joined in a partnership with the purpose of protecting individual rights and liberties. It is paramount for each system to have independence and respect for one another while still working together in order to form an effective partnership. It is through this partnership that deference by the United States Supreme Court concerning state court decisions, primarily based in state law, has become a vital part of federal jurisprudence.

Pollock continues with this idea and says that by respecting these judgments, the United States Supreme Court regards state courts as “partners in the federalist system.” This respect is extremely evident when the outcome of a case would have differed using the federal constitution. The landmark case of Michigan v. Long removed any ambiguity in the United States Supreme Court's previous approach to determining the independence of a state court decision.[2] According to Long, a state court that discusses federal law must make a “plain statement” asserting that it used the federal law for guidance only in order to avoid review of its decision.


Robert Utter  expands upon Pollock’s “partnership” theory and discusses the fact that state courts have made “great contributions to the growth of federal constitutional law.”[3] He mentions the fact that state courts have interpreted their state constitutional provisions long before the United States Supreme Court examined its federal counterparts. He also states that the Supreme Court has recognized the “importance of the variety, breadth, and depth of state court analysis … in its own decisions.”

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare. His focus is public interest law, specifically in the areas of immigration and family law, and in the civil rights and international issues that intersect with those areas of the law.

This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Part I: Changes in Constitutional Guardianship

As Stewart Pollock and Vincent Bonventre point out, throughout the mid-20th century, particularly during the 1950’s to 1970’s, the Supreme Court of the United States provided protection to civil liberties and rights that the state high courts would not.[1] But in recent decades the pendulum has swung in the other direction and state high courts in their review of constitutional issues now act as the guardians of fundamental rights and liberties.[2] This shift has drawn attention to the ways in which state courts are in a unique position to protect civil rights and liberties, and conversely to the ways in which the Supreme Court of the United States is challenged in this regard.

For example, Robert Utter argues that state review of federal issues has contributed to the substantive development of federal law, and that the state courts are in a special position to expand certain rights and liberties the federal courts cannot or have not.[3] State court decisions have shaped federal law in many areas of substantive rights and liberties because the Supreme Court has often looked to state decisions to inform its own opinions on these issues.[4] 

Conversely, Utter also argues that the federal courts are restricted in at least three ways that state courts are not. First, that the U.S. Supreme Court is often reluctant to rule on issues in deference to the state in the interests of federalism; an institutional restriction the state Supreme Court does not have – something Utter refers to as “underenforcement” of the constitution.[5] Second, and this follows from the first, state courts do not need to worry about their decisions affecting the entire country, and thus can afford to exercise much less caution in making their decisions.[6] Finally, if the Supreme Court is underenforcing the constitution, it follows that the law is not providing liberty to the full extent that the document allows.[7] States, unencumbered by the first issue, have the ability to enforce the Constitution to its fullest potential.

However, the argument that the State high courts have some greater institutional capacity for developing and protecting civil rights and liberties seems to have been thwarted by a Supreme Court decision now nearly 3 decades old. Since 1875 the Supreme Court would decline review of a case if the state court based its judgment on an adequate and independent state ground; as long as such a ground were mentioned in the argument, the Supreme Court would presume the case off-limits for review.[8] But this changed in 1983 with Michigan v. Long.

To Agree or Not to Agree, That is the Question: The New York Court of Appeals On Remand

--Following Supreme Court Reversal in Cases Involving Search and Seizure and Self Incrimination from 1980 to the Present


By Madeline M. Moore
Madeline Moore, a third year student at Albany Law School, is an Associate Director for the Center. Raised in Maybrook, New York, she is a philosophy graduate of the University of Michigan. In law school, she has worked as a law intern at the Albany County Office of the Public Defender and the Office of the Federal Public Defender for the Northern District of New York.

She prepared this paper for the State Constitutional Adjudication seminar, Spring 2011.

This paper examines cases decided by the New York Court of Appeals, the state's highest court, following reversal and remand by the United States Supreme Court. The paper focuses on criminal cases. Specifically, it examines those five cases since 1980 that dealt with search and seizure or self incrimination issues.

In these cases, the New York Court of Appeals did one of three things. It came to the same conclusion as the United States Supreme Court, but on different grounds; it came to the same conclusion and followed the Supreme Court's reasoning; or it refused to follow the Supreme Court and came to a different conclusion based on independent state grounds.*

_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.