Rosenblatt, Albert M.

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

The Journal of Appellate Practice and Process Volume 8 Issue 2 Article 2 2006 How I Got to the New York Court of Appeals Albert M. Rosenblatt Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Legal Profession Commons Recommended Citation Albert M. Rosenblatt, How I Got to the New York Court of Appeals, 8 J. APP. PRAC. & PROCESS 219 (2006). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol8/iss2/2 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. THE JOURNAL OFAPPELLATE PRACTICEAND PROCESSESSAYHOW I GOT TO THE NEW YORK COURT OF APPEALSAlbert M. Rosenblatt*With nervousness matched only by anticipation, I sat in thepassenger's seat. My friend-and opponent on the appeal-Robert Ostertag drove us up from Poughkeepsie, where I was anassistant district attorney about to argue my first case in NewYork's highest court.As appellant, I was there to reinstate a conviction for what Ihad persuaded myself was one of New York's most heinouscrimes and an equally severe punishment: a $10.00 fine forviolating section 1124 of New York's Vehicle and Traffic Law.The facts were simple. The defendant was driving south onRoute 9G and pulled out to pass a truck. Before getting backinto his own lane, he almost collided with an oncoming cardriven by ... a state trooper. This set the stage for what becamemy epic battle over the constitutionality of section 1124.The trial, conducted on August 30, 1963, could not havelasted more than five minutes, and the record consisted of thetrooper's testimony, which amounted to barely two pages. The* Albert M. Rosenblatt, a graduate of the University of Pennsylvania and Harvard LawSchool, was a Judge on the New York Court of Appeals from 1999 to 2006. He is nowwith McCabe & Mack of Poughkeepsie, New York, where he specializes in domestic andinternational arbitration and mediation.THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 8, No. 2 (Fall 2006)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSlaw was hardly more complicated, as Section 1124 provided thatno vehicle may cross the dividing line to pass another vehicle onthe left unless the left side is "clearly visible and free ofoncoming traffic." The statute went on to say that the overtakingvehicle must return to its own lane within at least 100 feet of anyvehicle coming from the opposite direction.Plain enough: If you're going to pass another car, get backinto your own lane in time to avoid a collision with anapproaching car. On the spot, the Justice of the Peace found thedefendant guilty. He appealed. In a concise six-sentenceopinion, the intermediate appellate court declared the statuteunconstitutional, as (mind you) void for vagueness. Thus, thecourt held, the People did not dispel a reasonable doubt, so thefine was remitted and the charge dismissed.The District Attorney designated me to handle the nextphase of the case, an appeal to New York's highest court, theCourt of Appeals. We needed permission to appeal, and we wereheartened when Judge Stanley H. Fuld issued a certificationproclaiming that the case involved questions of law meritingreview by the Court of Appeals.Dutifully, I had researched the law and learned that section1124 had identical counterparts in twenty-five states, and thatfour other states had enacted the same statute without the 100-foot provision. Only our intermediate appellate court (followinga decision of the Wayne County Court') had found the statutevague.Armed with citations from North Dakota, across the fruitedplains and through America's breadbasket to the Texaspanhandle, the lighthouses of Maine, and other jurisdictionsfrom sea to shining sea, I tried to remember each holding as Ireadied myself for oral argument. Would the court ask me aboutthe facts in the Rhode Island case? Or point out that the TenthCircuit Court of Appeals had dealt with New Mexico's identicalstatute in a civil, as opposed to criminal, case? No matter. I wasready.As appellant, I went first, remembering from law schoolmoot court that one must begin the argument by saying, "May itplease the court." I got the words out passably and plunged into1. People v. East, 206 N.Y.S.2d 963 (Cty. Ct. N.Y., Wayne Cty. 1960).How I GOT TO THE COURT OF APPEALSthe argument. "This case. . . ," I began, but Judge KennethKeating leaned forward and stopped me. "Excuse me," he asked,"but how did you get here?"With Kansas, Louisiana, and Oklahoma statutes swirlingaround in my head, I wondered why the judge seemed sointerested in the local roads, or perhaps in train travel. As Ipaused and stammered, I recalled that Judge Keating had been aUnited States Senator and had, no doubt, traveled the state.Maybe he was checking to see if he had taken the best routes.I glanced over at opposing counsel, but Bob Ostertaglooked straight ahead, poker-faced. He knew, of course, that wehad opted for the Taconic Parkway instead of the Thruway, butwas not about to stand up and volunteer it. And for all mypreparation, I was not even sure of the exit number and couldnot respond accurately, considering that Bob had driven and Iwas preoccupied with less relevant matters, like cases fromMontana and Mississippi.I sensed that some of the other judges seemed aroused byJudge Keating's question as they began flipping pages, and itoccurred to me that maybe the question had something to dowith procedure. Taking no chances, I answered as forcefully as Icould: "I'm sorry, Your Honor, but I'm not sure I have the driftof your question." Judge Keating responded with a benevolentsmile. "By what right are you appealing?" he asked.Ah, the mist was clearing. "Judge Fuld," I replied, "grantedus a certificate of leave to appeal." I looked to Judge Fuld. Hesaid nothing."But can you appeal to this court from a reversal on thefacts? Isn't that an acquittal?" Two or three of the judges, Ithought, began to shift in their chairs, but I couldn't tell whosediscomfort they were reflecting, theirs or mine."I'm sorry, Your Honor," I said, "but the case has beenbriefed entirely as one involving the constitutionality of section1124. No one has ever raised the question of appealability."("Not even Judge Fuld," I was about to say, but thought better ofit.) "If you like," I continued, "I can submit something ....Judge Keating responded cordially: "That won't benecessary," he said. "Go on with your constitutional argument."222 THE JOURNAL OF APPELLATE PRACTICE AND PROCESSSo I did. And about a month later, the Court held section 1124valid and ordered a new trial.22. People v. Klose, 219 N.E.2d 180, 183 (N.Y. 1966).

How I Got to the New York Court of Appeals

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How I Got to the New York Court of Appeals

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