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Hon. Randall Eng Authors, "Reflections in Serving on the Second Department Bench" for the New York Law Journal

Mar 1, 2018Litigation & Dispute Resolution

Publication Source: New York Law Journal

Transitioning from Presiding Justice of the Appellate Division, Second Department to the private practice of law has given me the opportunity to reflect upon my service in the New York state courts for over three decades. It was a long journey which ranged from assignment to the Summons Part of Manhattan Criminal Court to designation as an Associate Judge of the Court of Appeals for one matter. I think fondly of the many dedicated jurists that I was privileged to work with along the way, and the deep appreciation that I will always have for their respect for the rule of law.

My judicial career began in the Criminal Court of the City of New York in 1983. At that time, the transit fare was $.75, and the national average price of a gallon of gas was $1.24. I was 35 years old when appointed to the Court by Mayor Edward I. Koch, who had a decided preference for younger candidates in his judicial appointments. Indeed, in the year that I was chosen, more than half of his appointees were under the age of 40. From that beginning, I was able to enjoy a judicial tenure that exceeded 34 years, most of which was spent on the criminal side during the raging crack epidemic and the accompanying steep homicide rates.

The highlight, of course, of my time on the bench was my service on the Appellate Division, Second Department. It is difficult to appreciate the enormity of the workload of the Court without having been a part of it. This, I believe, is an appropriate opportunity to share some of my thoughts on the subject.

When I arrived at the Appellate Division, Second Department in January 2008 after more than 20 years of service on the trial bench, I stepped into the rarefied atmosphere of an extraordinary court populated by judicial and non-judicial personnel of the highest caliber, many of whom had lengthy years of experience. The court was then comprised of 18 men and four women, including Presiding Justice A. Gail Prudenti, who had the reputation of being an exceptional administrator. At that time there were two justices of Latino heritage, one African-American, and one Asian-American, myself. By the time I retired as presiding justice in December 2017, the composition of the court had undergone a remarkable transformation as witnessed by the fact that there were now 12 women jurists on the court and ten men. Among these judges were three Latinos, four African-Americans, and one Asian-American, again, myself.

Much had changed over 10 ten years at the Court, five as an associate and five as presiding justice, while much had remained the same. We continued to be the busiest appellate court in the country, faced with enormous caseloads coupled with budget reductions and hiring freezes brought on by the Great Recession which began in earnest in 2009.

The average number of cases decided by the Court were 4,000 per year, the number of new attorneys admitted by the Court was 2,619 per year, and the average number of attorneys who were disciplined per year was 231. Added to those figures were a varying number of suspended and disbarred attorneys who were seeking reinstatement to the Bar.

Criminal appeals had long accounted for a significant percentage of the Court’s docket and it was common to have five or more criminal cases appearing on every Day Calendar. As crime statistics began to decline over the past 10 years, the number of criminal cases in the inventory were reduced accordingly. However, there appeared to be a concomitant increase in the number of Family Court cases, driven in all likelihood by rising populations in many of the counties comprising the Second Department as well as by stress brought on by a declining economy.

Criminal and Family Court appeals were given priority in the processing of cases because of the liberty interests involved and by the need to deal with issues of custody, visitation, and support which have a heavy impact upon vulnerable populations.

We have all come to know the Appellate Division, Second Department for its prodigious output of decisions reflecting 80 cases per week on its Day Calendars, supplemented by submission calendars which decide cases in which oral argument is not permitted under the rules of the Court.

Added to the workload of the Second Department are decisions flowing from motions made to the Court seeking various forms of relief including requests for extension of time to perfect an appeal and extensions of time to answer or reply. Motions seeking re-argument, stays of trial pending appeals, leave to appeal to the Court of Appeals, and orders to show cause come before the Court on an ongoing basis. The total number of motions heard and decided annually by either a single judge or a four judge bench came to approximately 11,000 during my time in the Court.

Functioning outside of the historic and beautiful courthouse of the Second Department at 45 Monroe Place in Brooklyn Heights are the ancillary agencies of the Court that have a myriad of responsibilities under the supervision of the Appellate Division.

Among the larger agencies is the Mental Hygiene Legal Service (MHLS) which is a dedicated legal advocacy program providing a broad range of protective legal services and assistance to mentally-disabled persons under the care or jurisdiction of State-operated or licensed facilities. In 2007, just before my designation to the Court, MHLS was tasked with the responsibility of providing representation to sex offenders alleged to have mental abnormalities making them likely to re-offend and, therefore, in need of confinement or intensive supervision. There are now approximately 85 attorneys providing these services in both institutional and community settings throughout the five judicial districts which comprise the Second Department.

If one adds to the list of agencies the Appellate Term, two Committees on Character and Fitness, three Grievance Committees and the Attorneys for the Children Program, it becomes abundantly clear that the responsibilities of the Second Department are substantial and far-reaching.

I look forward to the new challenges of private practice and am very grateful for having had the good fortune of serving with the extraordinary judges of the Appellate Division, Second Department.

Hon. Randall T. Eng served as a New York Supreme Court Justice for over 30 years, most recently as Presiding Justice of the Appellate Division, Second Department, before joining Meyer, Suozzi, English & Klein, P.C. as a member of the firm’s litigation and dispute resolution department, including the appellate and criminal defense practices. He can be reached at [email protected].