When New York’s highest court decides an appeal of the state’s remaining death sentence case next year, the judges may show little allegiance to the court’s landmark 2004 decision striking down the death penalty, legal observers say.

John Taylor, 42, is the lone convict on New York’s death row, but for a condemned man his future is uncertain. His appeal will come before a court expected to be more sympathetic to capital punishment and, some attorneys speculate, less willing to be fettered by precedent.

Prosecutors have signaled they will ask the court to overturn the 2004 decision, which ruled a key component of the state’s death penalty to be unconstitutional. That decision, in which the court threw out the death sentence of Stephen LaValle, divided the seven judges, 4–3.

Because of retirements in the court, the judges who hear Taylor’s appeal will likely include two newcomers who did not take part in the LaValle case. One judge who voted against capital punishment, Albert Rosenblatt, yesterday heard his final day of arguments before his December retirement. Choosing a replacement for Judge Rosenblatt, considered a swing vote on capital punishment, will be one of Governor-elect Eliot Spitzer’s first decisions.

The judge who wrote for the majority in LaValle, George Bundy Smith, has already left the court, retiring this year after Governor Pataki replaced him with a far more conservative jurist, Eugene Pigott Jr., for his spot.

Judge Pigott is a “wild card” on the death penalty who could show little support for the LaValle decision, which he did take part in, a professor at Albany Law School who closely follows the Court of Appeals, Vincent Bonventre, said. “It is absolutely true that the question about the New York death penalty statute is unsettled.”

Other legal observers say that even if the individual justices disagreed with the LaValle decision, they could be unwilling to overturn one of the court’s most significant rulings.

“If you are a member of the court who thought LaValle was wrongly decided, would you nonetheless want to make it appear that one or two changes in membership in the state’s highest court can change a holding so fundamental as one about the death penalty?” the president of New York Lawyers Against the Death Penalty, Ronald Tabak, said. “And what does stare decisis mean were they to that?” Mr. Tabak asked, referring to the practice of upholding legal precedent.

The question of how much weight the Court of Appeals gives to its own precedent could prove just as important to the court’s final decision as its constitutional analysis. Fueling speculation on how the court will rule is a recent speech by the judge who wrote the dissent in LaValle, Judge Robert Smith.

In his dissent, Judge Smith wrote that the majority had issued “an astonishing holding” that meddled with the role of the Legislature. The Legislature has since declined to approve a new death penalty statute, which Judge Smith could interpret as signaling the Legislature’s acceptance of LaValle, legal observers say.

On November 1, Judge Robert Smith gave a speech on what it means to be a conservative jurist that has become a topic of discussion among attorneys following the Taylor case.

Answering a question from the audience, Judge Smith compared himself to the chief judge on the court, Judith Kaye, saying, “You would find her more respectful than I of precedent.”

Chief Judge Kaye, who voted with the majority of LaValle, is up soon for reappointment, which legal observers expect Mr. Spitzer to do.

According to a recording of the speech, Judge Smith continued later: “I am more inclined that a lot of judges to say, ‘If we got it wrong, lets say that we got it wrong and get it right.'”

News of Judge Smith’s speech has traveled beyond those present at the audience at the Federalist Society event, held at Pace University Law School.

Earlier in the talk, Judge Smith offered his views on capital punishment, telling the audience that he used to represent defendants facing execution.

“I am no longer — but was — a committed opponent to capital punishment,” Judge Smith said. “I never became a committed supporter of capital punishment. I’m quite ambivalent about it personally.”

Taylor was convicted for his role in the execution of five employees at a Wendy’s restaurant he robbed. Taylor, along with a mildly retarded accomplice, bound, blindfolded, gagged, and shot seven employees. Two survived.

The Office of the Queens district attorney, who is prosecuting Taylor, has said it will challenge the “validity” of the LaValle decision, according to a letter to the court earlier this year.

In addition to saying the court was wrong in the LaValle decision, prosecutors are expected to say that the decision does not apply to Taylor. In LaValle, the court said the death penalty law is faulty because it coerces jurors to vote for death. Jurors, when considering imposing death, are told that a deadlock could mean the defendant receives a sentence with the possibility of parole. Aware of the problem with the law, the judge in Taylor’s case told the jurors that if they deadlocked, Taylor would be eligible for parole only after 175 years in prison.

Taylor’s lawyer argues that Taylor cannot be executed without the court overturning LaValle, according to papers filed by the capital defender, Kevin Doyle. The LaValle decision “demands precedential respect,” Mr. Doyle wrote.

New constitutional issues are raised when the condemned man “inhabits a death row of one,” Mr. Doyle argues. “Even more freakish, and unconstitutional would be a “one shot” death penalty, reserved just for him,” Mr. Doyle wrote.

The case is not yet scheduled on the calendar, but the Court of Appeals will likely hear the case sometime in the spring.