New York Law Review

Tag: Preservation

  • People v. Allen, 25 N.Y.3d 444 (2015): Preservation Required for Duplicity Arguments Based on Trial Evidence

    People v. Allen, 25 N.Y.3d 444 (2015)

    A duplicity argument based on trial evidence, where the count is not duplicitous on the face of the indictment, must be preserved for appeal by timely objection.

    Summary

    Allen was convicted of murder and attempted murder. The attempted murder charge became potentially duplicitous at trial when evidence of two separate incidents involving the defendant pointing a gun at the victim emerged. The New York Court of Appeals held that a duplicity argument based on trial evidence, as opposed to a facially duplicitous indictment, must be preserved with a timely objection to be raised on appeal. Allen’s failure to object during the trial to the potential duplicity of the attempted murder charge waived his right to raise the issue on appeal. The Court also found that the lineup identification, even if improperly admitted, was harmless error given the overwhelming evidence of guilt.

    Facts

    On June 22, 2008, Allen attempted to shoot the victim but the gun misfired. Approximately ten minutes later, Allen shot the victim, resulting in his death. The victim’s wife witnessed some of the events and identified Allen in a police lineup. Ballistics evidence linked the bullet recovered from the scene to the bullet recovered from the victim’s body. Allen was charged with murder and attempted murder. During the trial, evidence of both the initial misfire and the later shooting was presented.

    Procedural History

    Allen was convicted on all counts in Supreme Court. The Appellate Division modified the judgment by directing that all terms of imprisonment run concurrently, and affirmed the conviction as modified, holding that the duplicity argument was unpreserved and that any error in denying the motion to suppress the lineup identification was harmless. Allen appealed to the New York Court of Appeals.

    Issue(s)

    Whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment.

    Holding

    No, because issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review to prevent unnecessary surprise after the conduct of a complete trial.

    Court’s Reasoning

    The Court of Appeals reasoned that to allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse. Defendants could strategically choose not to object at trial and then raise the issue on appeal if convicted. Quoting People v. Becoats, 17 N.Y.3d 643, 651 (2011), the Court stated, “To expand the definition of ‘mode of proceedings’ error too freely would create many such anomalous results.” The Court emphasized that any uncertainty regarding the basis of the attempted murder count could have been easily remedied with an objection during opening statements, witness testimony, or to the jury charge. The Court also held that the admission of the lineup identification, even if erroneous, was harmless beyond a reasonable doubt because of the “overwhelming evidence of defendant’s guilt,” including three eyewitnesses, ballistics evidence, a confession, and Allen’s attempts to avoid arrest. Regarding the limitation on cross-examination, the Court noted that the trial court did not abuse its discretion in ruling that the police reports were inadmissible extrinsic evidence on a collateral matter, because the reports were based on secondhand information and the source of the information was not directly from the victim’s wife. Citing People v. Owens, 74 N.Y.2d 677, 678 (1989), the court stated that the lineup idenfitication must be deemed harmless beyond a reasonable doubt when considered in light of the overwhelming evidence of defendant’s guilt.

  • People v. Alvarez, 19 N.Y.3d 78 (2012): Preservation Requirement for Public Trial Violations

    People v. Alvarez, 19 N.Y.3d 78 (2012)

    A defendant must preserve the argument that they were deprived of the right to a public trial when family members were excluded from the courtroom during voir dire by raising a timely objection; otherwise, the claim is waived on appeal.

    Summary

    These consolidated appeals address whether a defendant must preserve the argument that his right to a public trial was violated when family members were excluded from the courtroom during voir dire. In Alvarez, defense counsel moved for a mistrial after discovering the defendant’s parents were excluded during jury selection. In George, defense counsel did not object when the court stated spectators might be asked to leave during jury selection. The New York Court of Appeals held that preservation is required. The Court affirmed in George because the issue was unpreserved, but reversed in Alvarez and remitted for a new trial because the issue was adequately preserved by a timely objection and motion for mistrial.

    Facts

    Alvarez: Alvarez was charged with weapon possession. Before trial, Alvarez declined a plea offer after discussing it with his mother. During jury selection, Alvarez’s parents were excluded from the courtroom. Defense counsel moved for a mistrial based on the denial of a public trial, which the court denied, stating the courtroom was filled with prospective jurors and family members are usually asked to step out initially.

    George: George was charged with robbery and larceny. Prior to jury selection, the court stated that spectators might have to leave when potential jurors entered due to limited seating. Defense counsel thanked the judge without objecting. After preliminary instructions, some prospective jurors were excused, and the court asked remaining jurors to move forward, freeing seats for the public and instructing a court officer to inform spectators they could re-enter.

    Procedural History

    Alvarez: The Appellate Division modified the conviction, vacating convictions for criminal possession of a weapon in the fourth degree, but otherwise affirmed, finding the public trial argument unpreserved and without merit. Leave to appeal was granted. The Court of Appeals reversed.

    George: The Appellate Division affirmed the conviction, finding the public trial argument unpreserved and without merit. Leave to appeal was granted. The Court of Appeals affirmed.

    Issue(s)

    1. Whether a defendant must preserve an objection to the exclusion of family members from the courtroom during voir dire to raise a public trial violation on appeal.

    Holding

    1. Yes, because errors of constitutional dimension, including the right to a public trial, must be preserved with a timely objection.

    Court’s Reasoning

    The right to a public trial extends to voir dire. While proceedings may be closed when necessary to protect an overriding interest, the court must consider alternatives to closure. The Court relied on Presley v. Georgia, which held that the Sixth Amendment guarantees the right to a public trial during voir dire, and trial courts must consider alternatives to closure, even if the parties do not offer them. However, Presley did not address the preservation requirement. The Court stated, “Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors.” Since George raised no objection, his claim was unpreserved. In Alvarez, the defense counsel’s protest immediately after the violation was sufficient to preserve the issue. The appropriate remedy would have been to grant a mistrial and restart jury selection. The Court emphasized that preservation is crucial to give the trial court an opportunity to address and correct the error promptly.