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Some appellate rulings more significant than others

I was visiting family a few weeks ago and upon my return, someone had put a copy of The News article about judges on my desk. I found it interesting but very misleading.

I thank the lawyers who have written about the article, but I write to address some specifics. I have been a judge for more than 19 years and have presided over at least 124 felony criminal trials. At least 81 of those trials resulted in some sort of conviction, only one of which was reversed. That means that between 98 percent and 99 percent of all convictions after a trial in my court were affirmed on appeal. Even in the four-year period the reporter focused on, all of the convictions that resulted from a trial were affirmed on appeal. I believe that is a very good record.

When a conviction is modified, that simply means that the Appellate Division changed something, however slightly. On occasion, the Appellate Division has reduced a sentence I imposed, which that court has the authority to do. That does not affect the validity of the conviction; it simply means that the defendant will serve less time. Some of these modifications are pretty light. For example, one modification reduced a fine by $500 while another reduced a 100-year sentence by two years. In my opinion, these modifications are rather insignificant.

Including all criminal rulings I have made over the years, it appears that I have been appealed 210 times. My ruling was affirmed in 203 of them, an affirmance rate of more than 96 percent. Of those, 14 were modified, most of which involved the sentence or the period of supervision a defendant is subject to after he is released from prison.

Only seven decisions in 19 years were reversed. One involved whether a sentence was to be concurrent or consecutive, one was the trial I mentioned earlier and the rest involved the post-release supervision period. However, reversing this period does not affect the underlying conviction. Further, in the one case where I was reversed after a trial, the defendant was convicted after a new trial and that conviction was affirmed on appeal. None of the reversals resulted in the charges being dismissed.

Focusing on 20 percent of any judge's career is like saying that Derek Jeter stinks because he hit only .210 in April, despite hitting .300 for the season. Nonetheless, even in the short period used by the reporter, I had 41 criminal cases appealed, of which 37 were affirmed, an affirmance rate of more than 90 percent. While seven were modified, the decision itself was affirmed.

Of the four reversals, one defendant repleaded to the same charges, one case is still pending, one case vacated the period of post-release supervision and one case was remanded for a new sex offender hearing. None of these cases was dismissed.

The reporter did a disservice to the public in two respects. First, he focused on only a small period in our careers, and second, even considering the period he focused on, he was inaccurate.


Larry M. Himelein is Cattaraugus County judge.

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