New York Law Review

People v. Thomas, 98 N.Y.2d 737 (2002): Preserving Constitutional Challenges to Statutes

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People v. Thomas, 98 N.Y.2d 737 (2002)

A challenge to the constitutionality of a statute must be raised in a pre-trial motion to preserve the issue for appellate review; otherwise, the appellate court’s reversal based on the unpreserved constitutional issue does not satisfy the jurisdictional requirements for further appeal to the Court of Appeals.

Summary

Defendant was convicted of loitering for gambling. After the verdict, he challenged the constitutionality of the loitering statute (Penal Law § 240.35[2]). The Supreme Court granted his motion to set aside the verdict, but the Appellate Division reversed, reinstating the conviction. The Court of Appeals dismissed the appeal because the constitutional challenge was not raised in a pre-trial motion as required by CPL 210.20 and CPL 255.20. Because the Appellate Division decided the case on an unpreserved issue, the Court of Appeals lacked jurisdiction to hear the appeal under CPL 450.90(2)(a).

Facts

The defendant was convicted of loitering “in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia” (Penal Law § 240.35 [2]). After the jury verdict, the defendant moved to set aside the verdict, arguing that Penal Law § 240.35 (2) was unconstitutional.

Procedural History

The Supreme Court granted the defendant’s motion to set aside the verdict. The Appellate Division reversed and reinstated the verdict. One of the dissenting Appellate Division Justices granted leave to appeal to the Court of Appeals.

Issue(s)

Whether the Appellate Division’s reversal, based on a constitutional challenge to a statute raised for the first time after trial, satisfies the jurisdictional requirements of CPL 450.90(2)(a) for appeal to the Court of Appeals.

Holding

No, because the defendant failed to preserve the constitutional challenge by raising it in a pre-trial motion, the Appellate Division’s reversal based on that unpreserved issue does not satisfy the jurisdictional requirement of CPL 450.90(2)(a).

Court’s Reasoning

The Court of Appeals emphasized the importance of preserving issues for appellate review. It noted that CPL 210.20(1)(a) and 210.25(3) allow a defendant to seek dismissal of an indictment based on the unconstitutionality of the statute, and CPL 210.20(2) and 255.20(1) require such a motion to be made within 45 days of arraignment and before trial. While CPL 255.20(3) allows a court to entertain a motion at any time before sentencing “in the interest of justice, and for good cause shown,” the defendant did not make such a motion here.

The Court stated that the time restrictions in CPL 255.20 are not arbitrary but serve “ ‘the strong public policy to further orderly trial procedures and preserve scarce trial resources’ ” (quoting People v Jennings, 69 NY2d 103, 113 [1986]). The Legislature intended that a potentially dispositive motion should not be delayed until after an unfavorable verdict.

Because the defendant’s constitutional challenge was made for the first time in a motion pursuant to CPL 330.30, it was not properly preserved (see People v Hines, 97 NY2d 56, 61 [2001]). Since the Appellate Division decided the constitutional issue on the merits without addressing the lack of preservation, its reversal was based on an issue not properly before it. This means it does not meet the jurisdictional requirement of CPL 450.90 (2) (a) (see People v Cona, 49 NY2d 26, 33 [1979]). The Court of Appeals therefore lacked the power to hear the appeal.

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