Great Dissents: ‘Matters of High Principle’ at the Court of Appeals

By Vincent Martin Bonventre

Great Dissents: ‘Matters of High Principle’ at the Court of Appeals

9.14.2022

By Vincent Martin Bonventre

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Some of the greatest opinions in Supreme Court history are dissents.[1] To be sure, Justice John Marshall Harlan’s lone dissenting opinion in Plessy v. Ferguson would be included in any “greatest” list. Protesting the majority’s separate-but-equal doctrine, Harlan insisted that “[o]ur Constitution is color-blind and neither knows nor tolerates classes among citizens.” As every law student knows, Harlan’s view was embraced 58 years later in Brown v. Board of Education, when the court condemned racial segregation as a violation of constitutional equal protection.

Justice Louis Brandeis’s dissent against warrantless eavesdropping in Olmstead v. United States would surely make any such list. His warning against the “pernicious doctrine” that, “in the administration of the criminal law, the end justifies the means,” was eventually heeded by the court nearly four decades hence. In Katz v. United States, explicitly abandoning the majority ruling in Olmstead, the court held that constitutional search and seizure rights protected a person’s reasonable expectations of privacy.

And Justice Robert Jackson’s dissent in Korematsu v. United States must be mentioned. His impassioned disagreement with the majority condemned the wholesale military internment of Japanese-Americans during World War II. As usual, Jackson’s invocation of American constitutional principles has few, if any, equals: “[I]f any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.”[2]

These and other great dissents by other eminent jurists were, in Chief Justice Charles Evan Hughes’ memorable words, “an appeal to the brooding spirit of the law, to the intelligence of a future day.”[3]

To be sure, there are partisans of limiting dissents, evading disagreement and acquiescing in a single institutional voice.[4] Others, such as Justice Jackson, decried “a misleading impression of unanimity by avoiding, or confusing, an underlying difference.”[5] Stanley Fuld, esteemed New York chief judge and among the most deservedly renowned appellate judges of the last century, set forth criteria for dissents worth writing: “[T]hey stimulate thought as to whether the view of the majority is in conflict with wise and settled legal principle, at odds with justice and fair dealing, out of tune with the life about us or at variance with modern day needs.”[6]

Of course, Supreme Court justices are not the only ones to have written great dissents. Judges of New York’s high court have likewise penned dissents that “appeal to the brooding spirit of the law.” Although less known than their Supreme Court counterparts, they were equally driven by “matters of high principle” and no less roused by majority rulings viewed as intolerably “at odds with justice and fair dealing.”

It is no easy task to select, from among the countless dissenting opinions in Court of Appeals history, those that fit the foregoing attributes. It is even more difficult to cull a mere few to classify as “great.” But as one who was fortunate to work at the court for several years and reveres that institution, I wanted to give it a try.[7]

To make that task somewhat manageable, I’ve confined my consideration of “great” candidates to the “modern era.” For the purpose here, that limits the pool to dissenting opinions authored by judges who have served on the court since the adoption of the appointment selection system in 1977.[8]

My unquestionably subjective selections are all impassioned pleas for greater justice, decency, and wisdom, and their authors all felt compelled – by principles higher than consensus and unison – to protest publicly what their colleagues had decided.

Juridical Limbo

Judge Matthew J. Jasen in Tebbutt v. Virostek[9]

In Tebbutt, a negligently performed use of a syringe in amniocentesis caused the death of a child in utero. Worse than that, the physician left the mother unaware until the eventual stillbirth.

The Court of Appeals held that the mother had no cognizable cause of action. The majority reasoned that there was no duty owing to an unborn child who was never born alive, nor was there any duty owing to the mother that was violated, because only the fetus was harmed by the negligent conduct.

Judge Jasen was aghast at the majority’s inexplicably heartless ruling:

By holding that the physician’s conduct fails to give rise to any cognizable cause of action, the majority relegates the unborn child to a juridical limbo, where negligent acts, with fatal effect, performed upon the child are neither compensated nor deterred.

[T]he majority renders the mother a bystander to medical procedures performed upon her own body. The practical effect of the majority’s view is that the physician bears no duty of care if his negligence causes the death of the unborn child and the concomitant emotional injury to the mother. The unborn and mothers are entitled to greater protection.

Nearly 20 years thereafter, the court acknowledged that Tebbutt was wrongly decided, rejected its callous analysis and vindicated Judge Jasen’s dissent.[10]

Catechetical Rules

Judge Joseph W. Bellacosa in Kircher v. City of Jamestown[11]

In Kircher, witnesses alerted the police that a woman had been kidnapped and were assured that appropriate rescue action would be taken. None was. Consequently, the kidnapped woman endured horrific experiences and suffered serious injury. But the majority of the court rejected any “special duty” owed by the municipality and its police to the victim because she, herself, had not contacted the police.

Understandably, Judge Bellacosa was outraged at the cruel rigidity of the majority’s ruling:

[T]he victim of a broad daylight abduction, a harrowing car ride and kidnapping in the countryside, and brutal beating and rape, should not have her personal injury case and that of her husband thrown out of court without a trial because of the inflexible application of catechetical rules.

The victim was isolated by the abduction and by the nature of the crimes involved and, thus, could not personally make direct contact with the police. Under these circumstances, to impose an impossible legal duty on her perverts the jural relationship of the parties and the applicable rules.

Unfortunately, despite considerable agreement with Bellacosa and severe criticism of Kircher and the “special duty” rule,[12] the court continues to adhere to the rule to immunize municipalities, even beyond its customary application.[13]

Profound Unfairness

Chief Judge Lawrence H. Cooke in Fleishman v Lilly Co.[14]

In Fleishman, a woman who was treated with Diethylstilbestrol (DES) during pregnancy gave birth to a child who, as a result, developed cancer later in life. The Court of Appeals dismissed the lawsuit against the pharmaceutical companies as untimely, holding that the statute of limitations began to run when the mother ingested the drugs many years earlier, not when the cancer was first discovered or even discoverable.

Chief Judge Cooke condemned the majority’s inflexible application of prior decisions:

[T]he law is not and should not be so inflexible that it cannot correct itself from injustice and unfounded concerns espoused in prior decisions. [T]he doctrine [of stare decisis] should not be used as a shield behind which a court may hide as reason for perpetuating unnecessary and profound unfairness.

A grave injustice . . . is worked by the current rule of law which requires . . . causes of action to be brought before a plaintiff could reasonably know of their existence and very likely before any medically cognizable injury has occurred. It is time to abandon that inequitable rule as a mistake of the past that we have a duty to correct.

Two short years later, the state Legislature, siding with Cooke, discarded the so-called “exposure” rule and provided that the statute of limitations runs from the “discovery of the injury.”[15]

Fundamental Rights Are Fundamental Rights

Chief Judge Judith S. Kaye in Hernandez v. Robles[16]

In Hernandez, the court construed various provisions of New York’s Domestic Relations Law as restricting marriage to opposite-sex couples. The majority then hypothesized some reasons the Legislature could have decided to preclude same-sex marriage and then concluded that the reasons it had just imagined justified the restriction.

Chief Judge Kaye was as disappointed with her colleagues as she was passionate that they had done wrong:

This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

The Court concludes. . . . that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake. . . . Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.

I am confident that future generations will look back on today’s decision as an unfortunate misstep.

Kaye’s dissent – cited countless times throughout the nation in caselaw and scholarly articles[17] – was vindicated in the state a few years later with the legislative overruling of the majority’s decision and, nationally, with the Supreme Court’s recognition of the constitutional right to marry for same-sex couples shortly after that.[18]

Youthful Suspect Isolated

Judge Vito J. Titone in People v. Salaam[19]

In Salaam, one of the so-called “Central Park Five” appealed his convictions for the brutal beating and rape of a female jogger in a case that had captured the public’s attention. The Court of Appeals upheld the convictions. The majority relied on the factual determinations reached by the lower courts, that the police had abided by all the relevant statutory and constitutional requirements in their interrogation of the defendant.

Judge Titone, in lone dissent, had grave doubts and saw the facts quite differently:

This case . . . involves police officers and an Assistant District Attorney who obtained a confession from a 15-year-old boy by keeping him in isolation from the three concerned adults who came to the police station to help him . . . . I would reject the holdings of the courts below.

What emerges from these facts is a picture of law enforcement officers who were so anxious to extract a full and complete confession that they did everything within their power to keep this youthful suspect isolated . . . [O]ther than an undisguised intention to exploit this defendant’s youthful vulnerability, there was no justification for the authorities’ actions in preventing defendant from gaining access to the helpful counsel of the supportive adults who had gathered at the police station to assist him.

[T]he statements the police obtained as a result of their overreaching ought to have been suppressed . . . both to deter the abuse of police authority and to protect the right to counsel of those who are too young and naive to appreciate its importance.

Titone’s misgivings were vindicated when the now-“Exonerated Five” had their convictions vacated nine years later. Not only did DNA confirm the identity of the actual attacker, but facts came to light about the lying, manipulation and other abusive conduct used in obtaining the false confessions.[20] New York City ultimately settled with the exonerees for $40 million.[21]

‘Incapable of Rational Participation’

Judge George Bundy Smith in People v. Tortorici[22]

In another highly publicized case, the Court of Appeals again chose to defer to the determinations of the courts below, and again the result was tragic.

The defendant, with a history of mental illness, held a classroom of college students hostage. The prosecution could not find a psychiatric expert willing to testify that the defendant was sane and, finally, when they did find one willing to cooperate, that expert prepared a detailed report that the defendant was presently too incompetent for any determination to be made and too incompetent to be tried.[23] Nevertheless, without a hearing, the trial judge allowed the prosecution to proceed. A jury found the defendant guilty of multiple crimes, the judge imposed the maximum allowable sentence, and the Appellate Division and Court of Appeals affirmed.

A few years into his incarceration, the defendant, who spent much of the time in psychiatric treatment, hanged himself in his cell.

At the Court of Appeals, Judge Smith had been alone in protesting the trial judge’s ruling and the prosecution of this incompetent defendant:

A defendant who lacks the mental capacity to stand trial and to aid in his or her defense cannot, in harmony with due process principles, be convicted in an American court of law.

[T]he trial record is undisputedly devoid of any indication that the trial court, after having received the nine-page communication from the People’s forensic psychiatrist, undertook any further contact, communication with, or observation of defendant prior to rendering its decision.

[T]he nine-page communication from the People’s forensic psychiatrist – which concluded that defendant was ‘incapable of rational participation in court proceedings’ – was sufficient to establish a reasonable ground to believe that defendant was incapable of understanding the charges or proceedings against him or of assisting in his defense.”

[T]he trial court was required . . . to sua sponte order a further examination of defendant and, if necessary, a hearing on constitutional due process grounds. The failure of the trial court to do so was an abuse of discretion that warrants a reversal.

It is difficult to imagine that not one of Judge Smith’s colleagues agreed with him, let alone that his dissent was not the majority decision. A later report to the state bar association was blunt: “It strains credulity to argue that [Tortorici] possessed substantial capacity to understand the nature and consequences of his conduct or that his conduct was wrong.”[24] Indeed, as the lead prosecutor acknowledged in a PBS documentary about the case, “I remember thinking that . . . there was something wrong with what we did.”[25] And yet, at our high court, only Judge Smith was willing to see that the judicial system had failed.

A Tired and Hungry Child Isolated

Chief Judge Jonathan Lippman in Matter of Jimmy D.[26]

Eight years after the ultimate exoneration of the “Central Park Five,” the Court of Appeals – but this time with three judges in dissent – again attributed its ruling to the factual conclusions of the courts below and rejected the strong possibility that another juvenile’s confession was false. In this case, a 13-year-old, in the absence of his mother, who had previously been present, succumbed to the interrogating detective’s promise of “help” in exchange for a confession. The youth’s confession led to his being adjudicated a juvenile delinquent for acts of sexual misconduct akin to adult crimes.

Chief Judge Lippman was dismayed by his court’s ruling, appalled by the interrogator’s trickery and distressed at the risk of a false confession:

[T]he detective, upon encountering resistance from Jimmy . . . made representations . . . that he would have to provide a written statement before ‘help’ could be afforded . . . . When pressed as to what she meant by “help,” the detective indicated psychological counseling or legal assistance. But . . . it was a gross distortion . . . to intimate that legal assistance in any way depended upon the giving of a statement; and . . . a confession to criminal wrongdoing is not a condition of access to psychological counseling.

[I]t does seem clear that the circumstances – i.e., a tired and hungry child isolated with an experienced interrogator in the middle of the night and offered illusory inducements to confess to specifically described allegations of wrongdoing – are precisely the sort that do produce false confessions.

Recognition of the distinct hazard presented by that inherently enormously coercive scenario renders it imperative . . . where children are concerned, [that] we scrupulously adhere to Miranda’s requirement that there be a demonstrably valid waiver of rights, unaffected by threats, trickery, or cajolement, to support the admission of a custodial confession.

The commentary, in both academic and bar journals, has embraced Lippman’s dissent, rebuked the majority for its analysis and urged Miranda rights to be taken more seriously, especially when juveniles are involved.[27]

The Rationale Discarded

Judge Sol Wachtler in People v. Brosnan[28]

While some dissents have protested immediately tragic miscarriages, then-Judge Wachtler’s dissent in Brosnan warned of the long-term consequences of diluting a basic constitutional protection.

In this case, the defendant voluntarily took the police to his vehicle and, thereupon, was arrested and brought to the station house. At least one hour later, the police returned to the vehicle and, without a warrant, conducted a full search. The majority of the Court of Appeals upheld the warrantless search as incident to an arrest.

In a prescient dissenting opinion, Wachtler decried the expanding of exceptions to the warrant requirement, as the Supreme Court had been doing, divorced from the underlying justifications:

[T]here is a disturbing tendency to enthrone the exception into the rule . . . . Exception follows exception and soon the general rule itself is engulfed.

I believe the only workable and constitutional standard to apply in search and seizure cases is one which states that absent exigent or unusual circumstances, a law-enforcement official must first obtain a warrant to conduct a search. This approach discards the rubrics of the exceptions and looks instead to the reasons underlying those rubrics . . . The exigent circumstances articulated in most of the cases that were the sine qua nons of warrantless searches and seizures, was that there existed a danger to the officer or a danger of the evidence being destroyed and/or spirited away . . . . [S]earch and seizure law became uncontrollable when the rubric was adopted and the rationale discarded.

[A]pplying the standard I favor, the only question which need be asked is, “Was there any reason discernable from the record which would have made it impracticable for the policeman to get a warrant?” Since that question must be answered in the negative, I find this warrantless search of the vehicle to be unconstitutional.

Although the Court of Appeals has never overruled Brosnan, it has explicitly embraced Wachtler’s dissenting opinion. Refusing to follow Supreme Court decisions that applied exceptions to the warrant requirement in the absence of their original rationales, New York’s high court has recalled Wachtler’s warning that “search and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded.”[29]

Again, this selection of dissenting opinions constitutes a very limited, very subjective list. But what is objectively true about all of these dissents is their plea for fundamental fairness and decency and the wisdom and courage of the Judges who authored them.

Vincent M. Bonventre, J.D., Ph.D, is Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School, the director of the Center for Judicial Process and author of New York Court Watcher. Olivia Harvey (Albany Law School, 2022) helped in preparing this article.

[1] The title borrows from Hugh R. Jones, Cogitations on Appellate Decision-Making, The Thirty-Fifth Benjamin N. Cardozo Lecture, delivered before the Association of the Bar of the City of New York on Nov. 28, 1979 (accessible at https://nycourts.gov/history/legal-history-new-york/documents/History_Jones-Appellate-Decision-Making.pdf): “There are instances . . . in which responsibility to one’s own sense of integrity compels that customary guidelines be ignored and that a dissent be filed-on matters of high principle or instances of deep, irresistible visceral compulsion.” [Emphasis added.]

[2] In 2018, in Trump v. Hawaii, 138 S. Ct. 2392, 2424, the court expressly sided with Jackson: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and – to be clear – ‘has no place in law under the Constitution.’”

[3] Charles Evan Hughes, The Supreme Court of the United States 68 (1928).

[4] On the New York Court of Appeals, Chief Judge Judith Kaye prized such consensus. See, e.g., Sam Roberts, Judith S. Kaye, First Woman to Serve as New York’s Chief Judge, Dies at 77, N.Y. Times, Jan. 7, 2016 (she “prided herself on nudging her fellow jurists toward a unanimous opinion”). Her successor, Chief Judge Jonathan Lippman, had a different view. See e.g., William Glaberson, Dissenting Often, State’s Chief Judge Establishes a Staunchly Liberal Record, N.Y. Times, Oct. 9, 2011 (“I am a result-oriented person,” Judge Lippman said in an interview last year, “and the result I am looking for is not necessarily unanimity”).

[5] Jackson, Advocacy Before the Supreme Court: Suggestions for Effective Case Presentation, 37 A.B.A. J. 801, 863 (1951). Former Chief Judge Jonathan Lippman has often expressed a similar view. See, e.g., Andrew Denney, Can the NY Court of Appeals, Comfortable With Debate and Dissent, Foster Consensus?, N.Y.L.J., Sept. 26, 2018 (“I think strong majorities and strong dissents are healthy, and I think the law revolves better in that motif”).

[6] Stanley H. Fuld, The Voices of Dissent, 62 Colum. L. Rev. 923, 928 (1962).

[7] Several years ago, I was recruited to do something similar to help celebrate the 125th anniversary of the New York Law Journal. See Vincent Martin Bonventre, The Best of New York’s Court of Appeals, N.Y.L.J., Oct. 30, 2013.

[8] See Amendment Victory Spurs Court Change, N.Y. Times, Nov. 10, 1977. This “modern era” does include opinions by those judges who might originally have been elected to the court, but were subsequently appointed or elevated to a new term, e.g., Chief Judges Sol Wachtler and Lawrence Cooke. I have, however, excluded opinions by judges who are still serving on the court – although there are some which might otherwise well qualify.

[9] 65 N.Y.2d 931, 933 (1985) (Jasen, J., dissenting). Although I was a law clerk to Judge Jasen at the time, I did not assist him in his dissent in Tebbutt; my brilliant co-clerk John J. Halloran did. Then-Judge Judith Kaye also dissented in Tebbutt. One of her finest dissenting opinions is highlighted below.

[10] Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004). This was but one of several vindications of a Judge Jasen dissent. See, e.g., People v. Ferber, 52 N.Y.2d 674, 681 (1981) (Jasen, J., dissenting). The Supreme Court unanimously agreed with Jasen that child pornography is not protected by constitutional free speech, New York v. Ferber, 458 U.S. 747 (1982).

[11] 74 N.Y.2d 251, 262 (1989) (Bellacosa, J., dissenting).

[12] See, e.g., Brian T. Cohen, The Special Relationship Rule: Is It Consistent with the Waiver of Sovereign Immunity? – A Study of Kircher v. City of Jamestown, 8 Touro L. Rev. 649, 671 (1992) (“grave miscarriage of justice”).

[13] See, e.g., Ferreira v. City of Binghamton, 2022 N.Y. Slip Op. 01953 (2022) (5–2 decision applying the rule to negligent police action as opposed to failure to act). On another contentious legal matter, however, Bellacosa’s former court did ultimately come around to his dissenting view on the mens rea requirement of depraved indifference murder, expressed by him in People v. Roe, 74 N.Y.2d 20, 29 (1989) (Bellacosa, J., dissenting) (citing a previous dissent on the issue: People v. Register, 60 N.Y.2d 270, 281 (1983) (Jasen, J. dissenting)) and adopted in People v. Feingold, 7 N.Y.3d 288 (2006).

[14] 62 N.Y.2d 888, 890 (1984) (Cooke, C.J., dissenting).

[15] N.Y. CPLR 214-c. As many have observed, the unrelenting drive to advance fairness and decency, as reflected in his Fleishman dissent and numerous other opinions, was fundamental to Chief Judge Cooke’s career. See, e.g., Jay C. Carlisle II & Anthony DiPietro, The Life and Legacy of Chief Judge Lawrence H. Cooke: “Truly an Exemplary Life. A Life Well Lived,” 80 Alb. L. Rev. 1233 (2017). Another fervent apostle of fundamental fairness, Judge Stewart F. Hancock, Jr., dissented a few years after Fleishman in a pre-conception tort case, Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 389 (1991) (Hancock, J., dissenting) (Disagreeing that “there is any basis in the law or social policy or any principled reason in justice and fairness” for the majority to hold that the granddaughter “has no right to recover, solely because she was not conceived at the time that her mother was exposed to DES in utero,” despite the “appalling consequences from which she suffers”).

[16] 7 N.Y. 3d 338, 380 (2006) (Kaye, C.J., dissenting).

[17] See Roberta A. Kaplan, The Dissent that Paved the Way to Equal Dignity: Chief Judge Judith S. Kaye’s Dissent in Hernandez, 92 N.Y.U. L. Rev. 56, 62 (2017).

[18] N.Y. Domestic Relations Law § 10-a Parties to a Marriage; Obergefell v. Hodges, 576 U.S. 644 (2015). In a related vindication, Kaye’s dissent in Alison D. v. Virginia M, 77 N.Y.2d 651, 657 (1991) (Kaye, J., dissenting), that a de facto parent of her same-sex partner’s child should have a right to seek visitation, was adopted by the court 15 years hence in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016).

[19] 83 N.Y.2d 51, 58 (1993) (Titone, J., dissenting).

[20] See People v. Wise, 194 Misc. 2d 481 (Sup. Ct., N.Y. Co. 2002); Sharon L. Davies, The Reality of False Confessions – Lessons of the Central Park Jogger Case, 30 N.Y.U. Rev. L. & Soc. Change 209 (2006).

[21] Benjamin Weiser, 5 Exonerated in Central Park Jogger Case Agree to Settle Suit for $40 Million, N.Y. Times, June 19, 2014. More recently, Judge Rowan Wilson, in dissent, decried the rigidity of the majority for refusing even to consider the actual innocence claim of a defendant on the grounds that she had pleaded guilty at trial – even though the defendant was exonerated of any wrongdoing in an intervening civil case. People v. Tiger, 32 N.Y.3d 91, 110 (2018) (Wilson, J. dissenting) (“Natascha Tiger pleaded guilty but is innocent . . . Ms. Tiger is neither the first nor last innocent person to plead guilty”). On remand, the Appellate Division, “as a matter of discretion in the interest of justice,” vacated the guilty plea and conviction. People v. Tiger, 171 N.Y.S.3d 169 (2d Dep’t 2022).

[22] 92 N.Y.2d 757, 769 (1999) (Smith, J., dissenting).

[23] A Case of Insanity: The Story of Ralph Tortorici, Frontline, Oct. 17, 2002, https://www.pbs.org/wgbh/pages/frontline/shows/crime/ralph/summary.html.

[24] Report to the Executive Committee of the New York State Bar Association (2019), 10, https://nysba.org/mandatedrep0419/.

[25] A Case of Insanity, supra, Interview: Cheryl Coleman: “No mental health professional wanted to be involved having his or her name attached to someone who was part of the prosecution of Ralph Tortorici . . . . They believed, first of all, that he was not responsible . . . . [A] few of them expressed to me that they thought they would lose respect in their profession if they took on a position like that . . . .We couldn’t find anybody who had even the remotest interest in it [participating in the prosecution]. I remember thinking that . . . there was something wrong with what we did . . . . I felt really ashamed. I felt really responsible, and I felt like that we had to really seriously take a look at what we did.” https://www.pbs.org/wgbh/pages/frontline/shows/crime/interviews/coleman.html.

[26] 15 N.Y.3d 417, 425 (2010) (Lippman, C.J., dissenting).

[27] See, e.g., Justin Ashenfelter, Coming Clean: The Erosion of Juvenile Miranda Rights in New York State, 56 N.Y.L. Sch. L. Rev. 1503, 1514–15 (2012); John Brunetti, Re-visiting In re of Jimmy D.: What a Great Idea!, NYSBA New York Criminal Law Newsletter, Spring 2019, Vol. 17, No. 1, 17. Some lower courts are assiduously avoiding a strict application of the ruling in Jimmy D. See, e.g., In re P.G., 945 N.Y.S.2d 532 (Family Court, Queens County, 2012). Chief Judge Lippman, committed to correcting and preventing wrongful convictions, created the New York State Justice Task Force to address the causes, such as false confessions. New York State Justice Task Force website, www.NYJusticeTaskForce.com.

[28] 32 N.Y.2d 254, 263 (1973) (Wachtler, J., dissenting).

[29] See People v. Belton, 55 N.Y.2d 49, 53 (1982) (rejecting the Supreme Court rule that the arrest of a driver always allows a warrantless search of the vehicle’s passenger compartment; quoting People v. Brosnan, 32 N.Y.2d 254, 267 [Wachtler, J., dissenting]); see also People v. Torres, 74 N.Y.2d 224, 229 (1989) (rejecting the Supreme Court decision allowing a warrantless “pat-down” of the passenger compartment even after a pat-down of the driver uncovered neither weapon nor contraband).

Notably, several state high courts across the country have adopted the strict exigency requirement Wachtler prescribed in Brosnan. See, e.g., State v. McCarthy, 369 Or. 129 (2021) (“the state must prove that exigent circumstances actually existed at the time”); State v. Tibbles, 169 Wn.2d 364 (2010) (“the existence of probable cause, standing alone, does not justify a warrantless search”); State v. Elison, 302 Mont. 228 (2000) (“unlike the United States Supreme Court, we have continued to require a showing of exigent circumstances”).

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