Criminal Law and Procedure

Abraham Abramovsky

03-02-2006


One of the most disheartening phrases a criminal appellate lawyer can hear from a court is "this error is unpreserved for our review."

With those words, an appellate court can foreclose review of issues that, if better articulated at trial, might have resulted in reversal.

Although there are certain exceptions to the preservation rule, such as fundamental errors that would affect "the organization of the court or the mode of proceedings prescribed by law," the New York Court of Appeals has characterized these exceptions as "very narrow." See People v. Patterson, 39 NY2d 288, 295 (1976). In the vast majority of cases, preservation of errors at the trial level is the most significant factor in successfully obtaining appellate review.

Indeed, preservation can be a more important factor than the errors' substantive merit. To be sure, the Appellate Division has jurisdiction pursuant to Criminal Procedure Law (CPL) §470.15(6)(a) to review unpreserved trial errors "as a matter of discretion in the interest of justice." However, the intermediate appellate courts of New York rarely exercise this discretion.

Moreover, the Court of Appeals' jurisdiction under CPL §470.35 extends only to questions of law, without discretion to review errors left unpreserved in the trial court. The absence of preservation also — in all but a small minority of cases — forecloses collateral review under Article 440 of the Criminal Procedure Law or via petition for a writ of habeas corpus. Consequently, an unpreserved error will ordinarily receive one level of review at best, while a preserved error can be litigated through the entire panoply of New York state and federal appeals.

Accordingly, one of the most important — and yet least-often litigated — subjects in New York law is the fundamental rationale and requirements of preservation. This topic includes what must be done in order to preserve an issue of law for appellate review, and why such steps are necessary. In modern times, the preservation jurisprudence of the New York courts has wavered between formalistic and functional approaches, i.e., between a requirement that a trial attorney intone certain phrases at certain specific times and a more flexible approach based on whether the court had actual notice of the error. New York courts have often applied each of these approaches idiosyncratically, leaving defendants with little guidance as to the sufficiency of their trial tactics in any given situation.

Looking at Preservation in New York

Accordingly, this column will be the first in a series that examines preservation in New York criminal cases and analyzes both the courts' differing approaches and the current state of the law.

With the exception of errors where specific preservation requirements are set by law,¹ the basic requirement for preservation of error in New York is statutory, and is set forth in §470.05(2) of the Criminal Procedure Law. This statute, as amended in 1986, provides that an issue of law is preserved where "a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." The statute further states that the "protest" need not be a formal exception or objection, but will be deemed sufficient if (1) "the party made his position with respect to the ruling or instruction known to the court," or (2) the court expressly decided the question raised on appeal "in response to a protest by a party." Moreover, "a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction" is deemed to have preserved the error "regardless of whether any actual protest thereto was registered."

The 1986 amendment to CPL §470.05(2) was essentially intended to codify the "functional" concept of preservation set forth in People v. Robinson, 36 NY2d 224, 228 (1975). In Robinson, the Court of Appeals stated that the responsibility of criminal defendants in protecting their rights "extends to calling the attention of the court to errors of law which adversely affect a client at a time when such errors are correctable." The Commission Staff Notes for the amended statute, however, indicate that the amendment was primarily intended to relax the requirements of preservation even further. The Law Revision Commission noted that New York criminal procedure statutes had progressively reduced the necessity for formalistic "exceptions," and made clear that the intent of the statute was to "dispense with the necessity of an exception" and permit "inartistically phrased but meaningful complaint[s]" to preserve issues of law for appeal.

Mixed Record

In other words, the intent of the amendment was to do away with overly mechanical preservation requirements in favor of a flexible approach focusing on whether the court has been put on notice. As subsequent cases have shown, however, the New York courts' record in giving effect to this intent has been mixed, and the tension between the formalistic and functional approaches to preservation remains.

Some early cases interpreting the 1986 amendment to CPL §470.05(2) construed the amended statute liberally. In People v. Johnson, 144 AD2d 490, 491 (2d Dept. 1988), for instance, the prosecution offered four photographs of "[the defendant] and a companion posing with guns" into evidence at his murder trial. Defense counsel objected to the photographs at trial, but only on the ground that they were excessively prejudicial and inflammatory. On appeal, the defendant raised the additional ground that the pictures were inadmissible under the collateral evidence rule.

The Second Department noted that, prior to the 1986 amendment, "the defendant's failure to raise before the trial court the particular ground sought to be raised on appeal would have served to waive any error of law." It found, however, that the amendment "broaden[ed] the circumstances under which preservation . . . will be found" and permitted a question of law to be litigated before it as long as the trial court "expressly decided the issue so raised." The court held that, since the trial judge had addressed the collateral evidence issue in his oral ruling, the question was preserved for appeal even though the defense attorney had not explicitly raised it in his objection.

Another Second Department decision, issued a week later, People v. Ayala, 142 AD2d 147, 156-57 (2d Dept. 1988), went even further in adopting the functional approach to preservation. In Ayala, the prosecution made an application to read certain redacted Wade hearing testimony to the jury. The defendant's counsel orally opposed this application in colloquy before the court. Subsequently, on appeal, the defendant argued that the testimony had been admitted in violation of CPL §670.10, an issue which had not been addressed in the colloquy.

The prosecution argued that, because this issue had not been discussed in the colloquy, it was unpreserved. However, the Second Department noted that the trial court had discussed the scope of CPL §670.10 in a "post-verdict, published opinion." Consequently, even though the opinion was issued after the verdict and resulted from an application made by the prosecution, the Second Department held that the issue was preserved since it was "expressly decided by the trial court in response to a protest" by a party. This was the case although the party originally seeking the ruling was the prosecution rather than the defense, and even though "the protesting party overlooked [the issue at bar] when making the protest." See id. at 157.

Functional Approach

The broad functional approach adopted in Johnson and Ayala is not only consistent with the intent of CPL §470.05(2) but has a great deal to recommend it. Both the statute and Court of Appeals decisions such as Robinson indicate that the fundamental rationale for the preservation rule is to permit trial courts to correct their own errors and prevent them from being ambushed on appeal. Obviously, if a court explicitly addresses a certain issue in its ruling, it is fully on notice that the issue exists and cannot claim to have been deprived of a chance to correct the error. Nevertheless, New York courts subsequent to Johnson and Ayala have not been uniform in applying the functional approach and, in some cases, have arguably narrowed the intended scope of CPL §470.05.

A Narrowing Approach

One example of a narrowing approach to preservation was articulated in People v. Buckley, 75 NY2d 843, 846 (1990). In Buckley, several defendants were tried in tandem on charges of possessing stolen radar detectors. The attorney for one of the defendants requested a jury instruction on criminal possession of stolen property in the second degree as a lesser included offense, and the other defense counsel remained silent in reliance on "an agreement . . . made early at trial that exceptions by counsel of one defendant would apply to all codefendants." The Court of Appeals held that the issue was only preserved as to the defendant whose attorney explicitly requested the instruction, holding that "[f]or tactical reasons codefendants might take different positions on the desirability of various instructions to the jury." Thus, even though the trial court's denial of the instruction was made in response to a protest by a party, and therefore fell within the literal scope of CPL §470.05(2), the Court of Appeals held that it lacked jurisdiction to rule on the propriety of the trial court's decision.

Another case in which the Court of Appeals rejected a broad approach to CPL §470.05(2) was People v. Gray, 86 NY2d 10, 19-21 (1995). In Gray, the defendants argued that a motion to dismiss at the close of the prosecution's case, pursuant to CPL §290.10, was enough to preserve a sufficiency issue for appeal even if it did not address the specific ways in which guilt was not proven beyond a reasonable doubt. In making this argument, they relied on CPL §470.05(2) and contended that, whenever a trial court determined that there was sufficient evidence to go to a jury, it decided the question of sufficiency in response to a protest by a party. The Court of Appeals, however, held that a "general motion to dismiss" did not sufficiently apprise the court of the grounds upon which the defense asserted that the evidence was insufficient. Instead, the court ruled that "a sufficiently specific motion" was necessary in order to "provide the opportunity for cure before verdict."

Cases Versus CPL §470.05(2)

Both Buckley and Gray have been widely followed by subsequent New York courts. However, it could be argued that each is inconsistent with the purpose of CPL §470.05(2). In the Buckley situation, where defendants have agreed to make objections and requests jointly, an objection by any defense attorney puts the trial court on clear notice that the issue has been raised on behalf of all defendants. As such, the court should not be heard to claim to be surprised or ambushed if the issue is raised on appeal. The Court of Appeals' observation that individual defendants might have strategic reasons for not joining in codefendants' applications is not a sufficient ground to warrant rejecting joint objections. If a particular defendant wants to deviate from a joint objection agreement and disassociate himself from an application made by a codefendant's counsel, there is nothing to preclude him from doing so. Hence, in the absence of a statement by defense counsel disavowing a codefendant's objection, the spirit of CPL §470.05 would seem to dictate that the courts honor joint objection agreements for preservation purposes.

Likewise, a motion to dismiss made at the close of the prosecution's case is fundamentally different from an objection to a specific trial error. Trial errors often occur in the space of a minute, and might easily be overlooked by the court if the parties don't call attention to them. In contrast, a motion to dismiss due to legally insufficient evidence is based on the totality of the trial, which the judge had just as much of a chance to observe as the parties had. A trial court faced with such a motion is in as good a position as the parties to call attention to specific aspects of the evidence that might support or undermine a claim of legal insufficiency. Therefore, even a "general motion to dismiss" is arguably sufficient to put the trial court on notice of the claim of error, especially if the court goes on to explicitly rule that the evidence was sufficient to prove guilt beyond a reasonable doubt.

Indeed, in Williams v. Walsh, 2004 U.S. Dist. LEXIS 24170, *14-15 (SDNY Dec. 1, 2004) — which, as a habeas corpus case, applied a stricter preservation requirement than applicable on direct appeal — the court appeared to disagree at least in part with Gray. The petitioner in Williams made a trial motion to dismiss on the basis that "the People [had] fail[ed] to prove the case beyond a reasonable doubt." Even though the defendant did not elaborate on this objection, the court found that it was more than a mere "general motion to dismiss" and that a motion predicated on failure to prove a prima facie case was sufficiently specific to bring the error to the court's attention. While the Williams court characterized its holding as consistent with Gray, it is clear that the court was uncomfortable with a preservation standard that requires defendants to raise specific points of evidence on the spot or else forfeit them on appeal.

The fact that both Williams and Gray can be characterized as consistent with New York law reveals that there is still no firm consensus on the balance between formalistic and functional preservation. There are, to be sure, some recent signs that the Court of Appeals has again begun to caution against excessive formalism. For instance, in People v. Payne, 3 NY3d 266, 272 (2004), the court held that it had jurisdiction to rule on a sufficiency issue even though the defendant did not renew his trial motion to dismiss at the close of his own testimony. In the majority opinion, Judge Albert Rosenblatt cautioned against "elevating preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question." If this is to become a clear principle of jurisprudence rather than dicta in a single case, however, it will be necessary for the court to revisit the rationale for preservation and provide guidance that can be used in a wide variety of situations.

The Future

The next column in this series will discuss the ways in which recent New York criminal decisions have treated preservation in various legal contexts.

Abraham Abramovsky is a professor at the Fordham University School of Law and the director of the Fordham University International Criminal Law Center. Jonathan I. Edelstein, an attorney in private practice, assisted in the research and preparation and writing of this column.

Endnotes:

1. For instance, in order to preserve an issue of law based on a trial court's erroneous denial of a challenge for cause to a prospective juror, the defendant must (1) peremptorily challenge that juror, and (2) exhaust his peremptory challenges prior to the completion of jury selection. See CPL §270.20(2). Such special preservation requirements, however, exist in only a few narrowly defined circumstances.