Acting Chief Judge Anthony Cannataro. Photo: Ryland West

As New York's highest court continues to operate without a seventh jurist, the fear of 3-3 deadlocks may be easing, if two criminal decisions are a leading indicator.

In both cases the acting chief judge and the latest addition to the court voted with the majority, once for a criminal defendant and once for the prosecution.

It's not a lot of data points, but the cases handed down on March 16 may be a departure from some of the high court's reputation as decidedly in favor of prosecutors. And while it may be temporary, the high court achieved consensus for decisions on opposite sides of the prosecution-defense aisle.

It has court watchers hopeful that consensus is possible for the state's highest court, which was split evenly between liberal progressives and moderate conservatives.

The judges handed down a pair of 4-2 decisions in criminal cases—one in favor of the defense regarding a speedy trial matter in a rape case written by Judge Rowan Wilson captioned People v. Andrew Regan.

The other, a memorandum decision in People v. Santino Guerra, was a win for prosecutors, in a case over evidence of a crime victim's prior violent acts.

In both cases, Acting Chief Judge Anthony Cannataro and Associate Justice Shirley Troutman were swing votes.

These developments are worth watching during the state's ongoing search for a chief judge.

Although Duane Morris attorney Thomas R. Newman hadn't yet read either of the two Thursday cases, the author of New York Appellate Practice had already observed that criminal defendants-appellants "have rarely, if ever, found a more receptive court for their pleas" than under Cannataro's leadership since he became acting chief judge on Sept. 1, 2022.

From October 2022 to February 2023, Newman said the court decided 13 criminal appeals, resulting in four affirmances and nine reversals.

In an interview with the Law Journal on Friday, Newman said: "I don't like applying any sort of political labels to the court. I like to think that the judges will decide each case that comes before them based on the facts and the law as they find it—and if it comes down for the defendant, okay; and if it comes down for the prosecution, so be it."

Newman addressed how some Democratic lawmakers and progressive groups have said the court doesn't need another former prosecutor, since it already has two.

"Some of the best judges on the court and in the country were former prosecutors," Newman said, mentioning the late Stanley Fuld and the late Charles Breitel.

"I just have been not happy with people wanting to try to categorize the judges as conservative or liberal and that's how they should decide their cases," Newman said. "It's beginning to look and sound too much like people speaking about the Supreme Court of the United States and how they're viewed, the political bent of the justices. I like to think the New York Court of Appeals has always just decided cases on the facts and the law, end of story."

But Albany Law School professor Vincent Bonventre said he views the court as "still fairly pro-prosecution," but added that he saw "a glimmer of hope" with the court's Regan decision.

Bonventre said Cannataro has always been in the majority of the decisions involving criminal cases, while Judge Michael Garcia has always been for the prosecution, and Wilson always for the defense. Judge Jenny Rivera was with the defendant most but not all the time, said Bonventre, who authors the New York Court Watcher blog.

"You would hope that in these these close cases, the judges wouldn't always be voting the same way," Bonventre said. "But there's a footnote to that. If you have a court that is lopsidedly pro-prosecution, you might expect one or two judges to be in the dissent either all the time or almost all the time because the court is so far in that direction. And then vice versa: if you have a court that's so pro accused, you might imagine that there would be a judge or two that is either always very frequently disagreeing."

Bonventre pointed out that during the last months of former Chief Judge Janet DiFiore's tenure, all nine criminal decisions were in favor of the prosecution, of which seven were divided, unsigned opinions.

"Usually the company line in unsigned opinions is that there isn't much of an issue, all we're doing is applying settled law," Bonventre said.