New York Law Review

Tag: preservation of error

  • In re Michael M., 3 N.Y.3d 441 (2004): Waiver of Non-Hearsay Requirement in Juvenile Delinquency Petitions

    In re Michael M., 3 N.Y.3d 441 (2004)

    A juvenile respondent waives the right to challenge a delinquency petition based on the lack of non-hearsay allegations if the issue is not raised before taking an appeal.

    Summary

    This case addresses whether a juvenile respondent can raise a challenge to a juvenile delinquency petition for the first time on appeal, based on the petition’s failure to contain non-hearsay allegations as required by the Family Court Act. The Court of Appeals held that the failure to raise the issue in the Family Court constitutes a waiver of the right to object on appeal. The Court reasoned that the non-hearsay requirement is not a fundamental jurisdictional defect that cannot be waived, and the respondent’s failure to preserve the issue at the trial level precluded appellate review.

    Facts

    Michael M., a 14-year-old, was arrested in connection with the assault and attempted robbery of a 13-year-old boy. The victim identified Michael as one of the assailants. The initial felony complaint in Criminal Court was based on hearsay, with the arresting officer relating the victim’s account. The case was subsequently removed to Family Court for juvenile delinquency proceedings. The City of New York failed to submit a deposition from the victim containing non-hearsay allegations as required by Family Court Act § 311.2 (3). Michael did not object to this omission in Family Court.

    Procedural History

    The case proceeded to a hearing in Family Court, where Michael was found to have committed acts constituting attempted robbery and assault. He was adjudicated a juvenile delinquent and placed on probation. Michael appealed, arguing for the first time that the delinquency petition was defective due to the lack of non-hearsay allegations. The Appellate Division reversed the Family Court’s order. The City appealed to the Court of Appeals.

    Issue(s)

    Whether a juvenile respondent waives the right to challenge a juvenile delinquency petition on appeal based on the lack of non-hearsay allegations when the issue was not raised in Family Court?

    Holding

    Yes, because the non-hearsay requirement in Family Court Act § 311.2 (3) is not a fundamental jurisdictional defect that cannot be waived; therefore, the failure to raise the issue in the Family Court constitutes a waiver of the right to object on appeal.

    Court’s Reasoning

    The Court of Appeals relied on the principle that litigants generally cannot raise issues for the first time on appeal. The Court distinguished its prior holdings regarding jurisdictional defects, clarifying that the non-hearsay requirement is not akin to a failure to allege facts constituting the charged crime, which would be a non-waivable jurisdictional defect. The Court emphasized that failing to preserve an issue for review is only excused for the most fundamental procedural irregularities that taint the entire trial. The Court also distinguished its holding from a prior dictum in People v. Casey, where it appeared to suggest that hearsay defects in delinquency petitions need not be preserved. The court reasoned that while a defect in a delinquency petition cannot be cured by amendment, it can be cured by a new petition, and therefore, the failure to preserve the issue should result in waiver. The Court concluded that because Michael failed to raise the issue of the non-hearsay requirement in the Family Court, he waived his right to raise it on appeal. As the dissent notes, the majority errs in following the dictum in Casey. The dissent advocated following the holding in Casey, namely, that a hearsay defect in a delinquency petition, like a hearsay defect in a criminal court misdemeanor information, is nonjurisdictional and may be waived.

  • People v. Rodriguez, 2 N.Y.3d 808 (2004): Preserving Objections for Appellate Review

    People v. Rodriguez, 2 N.Y.3d 808 (2004)

    A general objection to evidence, without specifying the grounds, is insufficient to preserve the issue for appellate review.

    Summary

    The New York Court of Appeals held that a defendant’s general objection to expert testimony, without specifying the basis (e.g., hearsay), failed to preserve the issue for appellate review. The defense attorney made a general objection during the trial, which the trial court sustained, providing a limiting instruction. The defense did not object to the instruction’s adequacy, nor did they lodge a specific hearsay objection to further testimony. Because the Appellate Division correctly determined that the Supreme Court’s CPL 330.30(1) motion grant was in error, the Court of Appeals affirmed the order reversing the Supreme Court’s order and reinstating the guilty verdict.

    Facts

    The defendant was convicted of assault in the first degree and endangering the welfare of a child.

    During the trial, an expert witness provided testimony.

    Defense counsel made a general objection to a portion of the expert’s statement.

    The trial court sustained the objection and provided a limiting instruction to the jury.

    Defense counsel did not object to the adequacy or accuracy of the limiting instruction.

    Defense counsel did not specifically object to the expert’s further testimony on hearsay grounds.

    Procedural History

    The Supreme Court granted the defendant’s CPL 330.30(1) motion, which allows a court to set aside a verdict based on errors during the trial.

    The Appellate Division reversed the Supreme Court’s order, denied the defendant’s motion, and reinstated the guilty verdict.

    The defendant appealed to the New York Court of Appeals.

    Issue(s)

    Whether a general objection to expert testimony, without specifying the basis for the objection (e.g., hearsay), is sufficient to preserve the issue for appellate review.

    Holding

    No, because a party’s failure to specify the basis for its general objection renders its argument unpreserved for appellate review.

    Court’s Reasoning

    The Court of Appeals relied on the established principle that a general objection is insufficient to preserve an issue for appellate review. The court emphasized the need for specific objections to allow the trial court an opportunity to correct any potential errors. The court cited People v. Tevaha, 84 NY2d 879, 881 (1994) in its decision.

    Because the defense counsel made only a general objection and failed to specify the grounds (e.g., hearsay), the issue was not properly preserved for appellate review. The limiting instruction given by the trial court was not challenged for adequacy. Therefore, the Appellate Division correctly concluded that the Supreme Court erred in granting the defendant’s CPL 330.30(1) motion on a ground that would not have required reversal or modification as a matter of law by an appellate court.

  • People v. Shabazz, 99 N.Y.2d 634 (2003): Admissibility of Evidence Based on Police Radio Transmissions

    People v. Shabazz, 99 N.Y.2d 634 (2003)

    When a defendant fails to challenge the reliability of police radio transmissions at a suppression hearing, the prosecution is entitled to a presumption of reliability, and the defendant’s argument that the proof was deficient is unpreserved for appellate review.

    Summary

    Bobby Shabazz was convicted of weapon possession charges. Police stopped his vehicle based on radio transmissions indicating he was involved in recent shootings. During the stop, Shabazz made an incriminating statement, and a subsequent vehicle search revealed a gun. Shabazz moved to suppress the gun and his statements, but the motion was denied. On appeal, he argued that the radio transmissions were unreliable, but the Appellate Division upheld the conviction, citing his failure to raise the reliability issue during the suppression hearing. The New York Court of Appeals affirmed, holding that the defendant’s failure to challenge the reliability of the radio transmissions at the suppression hearing meant that the prosecution was entitled to rely on a presumption of reliability, and his appellate argument was unpreserved.

    Facts

    Police officers received radio transmissions reporting recent shootings involving a black male named Bobby Shabazz, driving a gray 1987 Chevy Astro van with a specific license plate number. The officers located a matching vehicle, confirmed the license plate, and stopped the van. The defendant, Shabazz, was driving. As police removed him from the van, he asked, “Who did I kill?” A subsequent search of the van revealed a gun in the back seat.

    Procedural History

    Shabazz was charged with criminal possession of a weapon and other charges. He moved to suppress the gun and his statements, but the suppression court ruled the evidence admissible. A jury convicted him of the weapon possession offenses. The Appellate Division affirmed the conviction. Shabazz then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the radio transmissions were sufficient to justify the motor vehicle stop and subsequent arrest, considering the defendant’s argument on appeal that the People did not establish the reliability of the information conveyed in those transmissions.

    Holding

    No, because the defendant failed to challenge the reliability of the radio transmissions at the suppression hearing; therefore, the burden never shifted to the People to establish the reliability of that information, and the issue is unpreserved for review.

    Court’s Reasoning

    The Court of Appeals stated that the legality of a motor vehicle stop and search is a mixed question of law and fact that will not be disturbed on appeal if the Appellate Division’s finding has a record basis. Here, the officers’ testimony about the radio information supported the conclusion that the stop was lawful under People v. Dodt, 61 NY2d 408 (1984). The critical point was that Shabazz *never* challenged the reliability of the radio information at the suppression hearing. Because he failed to do so, the burden never shifted to the People to prove the reliability of the information as per People v. Jenkins, 47 NY2d 722 (1979). The Court cited People v. Martin, 50 NY2d 1029, 1031 (1980), stating that the argument was unpreserved for review. Furthermore, the court dismissed his argument that the search was illegal for failure to verify his identity before arrest, also because it was unpreserved. The Court concluded that there was a sufficient basis to support the Appellate Division’s determination that probable cause existed for the arrest.

  • People v. James, 99 N.Y.2d 267 (2002): Preserving Batson Challenges in Jury Selection

    People v. James, 99 N.Y.2d 267 (2002)

    To properly preserve a Batson challenge regarding allegedly discriminatory jury selection, a party must clearly articulate and develop all factual and legal grounds supporting the claim during the relevant colloquy, specifying each juror whose exclusion is challenged.

    Summary

    The New York Court of Appeals held that a defendant failed to preserve his Batson challenge because he did not clearly articulate that he was challenging the exclusion of all the jurors he mentioned when raising the Batson challenge. The Court emphasized that it is the moving party’s responsibility to clearly specify each juror they claim was improperly challenged. The Court of Appeals affirmed the lower court rulings, highlighting the need for specific and timely objections to ensure proper preservation of Batson challenges.

    Facts

    In People v. James, the defendant was observed attempting to break into a car. During jury selection, the defense raised a Batson challenge, arguing that the prosecution’s peremptory challenge of five out of six African-American women was discriminatory. The defense attorney named four African-American women previously struck and then focused on a fifth woman, Bemejam, stating reasons why her removal was questionable. In People v. Jones, the defendant was indicted for robbery. During jury selection, the defendant raised a Batson challenge concerning the People striking an African-American female and two African-American males. The defense attorney mentioned the jurors but only explicitly challenged the removal of two male jurors.

    Procedural History

    In James, the trial court found no Batson violation. The defendant was convicted, and the Appellate Division affirmed. A dissenting Justice granted leave to appeal. In Jones, the trial court rejected the Batson challenge, and the defendant was convicted. The Appellate Division affirmed the conviction. A judge of the Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendants adequately preserved their Batson challenges by specifically articulating which jurors’ exclusions were being challenged as discriminatory.

    Holding

    1. No, because the defendants failed to clearly and specifically challenge the exclusion of each juror they now claim was discriminatorily removed, thus failing to preserve the issue for appellate review.

    Court’s Reasoning

    The Court of Appeals stated that a party making a Batson challenge must clearly articulate and develop all factual and legal grounds supporting the claim. This includes specifying each juror whose exclusion is challenged. The Court reasoned that in James, the defense attorney only explicitly challenged the removal of Bemejam, and in Jones, the defense only clearly challenged the removal of certain male jurors. The court emphasized that an unarticulated claim is an unpreserved claim. The Court quoted People v Childress, stating that a party asserting a Batson claim “should articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed.” By not clearly challenging the exclusion of each juror at the time of the Batson challenge, the defendants failed to preserve the issue for appeal. The court also referenced People v. Allen stating, “Although the race neutral reason for exercising a peremptory challenge need not rise to the level of a challenge for cause, it must be legitimate and not merely a pretext for discrimination.” The Court ultimately affirmed the importance of specific and timely objections to any claimed discriminatory exclusion of jurors.

  • People v. Gonzalez, 99 N.Y.2d 76 (2002): Double Jeopardy and Multiple Punishments for a Single Act

    99 N.Y.2d 76 (2002)

    A double jeopardy claim based on multiple punishments for a single act requires preservation for appellate review; the permissibility of multiple punishments arising from a single act is a question of statutory interpretation dependent on legislative intent.

    Summary

    Defendants Gonzalez and Lopez were convicted of drug sale offenses based on single transactions, leading to concurrent sentences. They argued that these convictions violated double jeopardy protections against multiple punishments for the same offense. The New York Court of Appeals held that such double jeopardy claims require preservation at trial because they turn on statutory interpretation and legislative intent, unlike claims of successive prosecutions which implicate the court’s jurisdiction. Since neither defendant preserved their claim, the court declined to review it. The court affirmed Gonzalez’s conviction and Lopez’s conviction (though Smith, J., dissented on evidentiary grounds in Lopez’s case).

    Facts

    In People v. Gonzalez, an undercover officer asked Gonzalez where to buy drugs. Gonzalez directed the officer to another individual, Sepulveda, near a school. Sepulveda sold heroin to the officer. Gonzalez was arrested, but no drugs were found on him.

    In People v. Lopez, an undercover officer asked Lopez for heroin. Lopez directed the officer to Rennock, who sold the heroin inside a nearby building 420 feet from a school. Lopez was arrested 20 minutes later, but no drugs or buy money were recovered from him.

    Procedural History

    Gonzalez was convicted of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. The Appellate Division affirmed.

    Lopez was convicted of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree. The Appellate Division modified by vacating one possession conviction and affirmed.

    Issue(s)

    Whether a defendant’s claim that convictions for multiple offenses arising from a single act violate double jeopardy by resulting in multiple punishments, requires preservation for appellate review.

    Holding

    No, because a double jeopardy claim alleging multiple punishments arising from a single act implicates a question of statutory interpretation and legislative intent, which must be preserved for appellate review.

    Court’s Reasoning

    The Court of Appeals distinguished between double jeopardy claims involving successive prosecutions (which affect the court’s jurisdiction and need not be preserved) and those involving multiple punishments for a single act. The Court reasoned that the latter type of claim turns on whether the legislature intended to authorize multiple punishments, a matter of statutory interpretation. Quoting Missouri v. Hunter, the court stated, “As long as the Legislature intended to impose cumulative punishments for a single offense, `a court’s task of statutory construction is at an end’ and no constitutional double jeopardy claim is implicated.” The Court emphasized that a determination of legislative intent requires a defendant to preserve the issue for appeal. Since neither Gonzalez nor Lopez raised their double jeopardy claims at trial, the Court declined to address them.

    Judge Smith concurred in Gonzalez’s case but dissented in Lopez’s. Smith argued that all double jeopardy claims, including those related to multiple punishments, are fundamental and do not require preservation. Smith would have reached the merits of the double jeopardy claims, ultimately rejecting them based on the legislature’s intent to permit convictions for both offenses. However, Smith dissented in Lopez’s case because the introduction of expert testimony was unnecessary and prejudicial.

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

    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.

  • People v. Casey, 95 N.Y.2d 354 (2000): Preserving Objections to Hearsay in Criminal Informations

    People v. Casey, 95 N.Y.2d 354 (2000)

    Hearsay pleading defects in the factual portion of a local criminal court information must be preserved by timely objection to be reviewable on appeal.

    Summary

    Casey was convicted of criminal contempt for violating a Temporary Order of Protection. He appealed, arguing the information charging him was jurisdictionally defective because it lacked non-hearsay allegations of his knowledge of the order and failed to attach the order itself. The Court of Appeals held that while the information had a potential hearsay defect, Casey’s failure to raise a timely pretrial objection waived his right to challenge it on appeal. The Court clarified that not all pleading defects are jurisdictional, distinguishing between failing to plead an element of the crime (non-waivable) and using hearsay to plead an element (waivable if not objected to). The Court emphasized the importance of preserving objections and the curability of hearsay defects through amendment.

    Facts

    A Temporary Order of Protection was issued against Casey in connection with a harassment charge. The complainant reported a violation of the order to the police. A detective verified the order and interviewed the complainant, who showed him a certified copy. The detective contacted Casey, who confirmed he was served with the order. Casey surrendered, was given Miranda rights, and made statements implying he violated the order.

    Procedural History

    Casey moved to suppress his statements, which was denied. He was convicted of criminal contempt. The Appellate Term affirmed, rejecting Casey’s arguments that the information was defective and his statements inadmissible. Casey appealed to the Court of Appeals.

    Issue(s)

    Whether a hearsay pleading defect in a local criminal court information, specifically the failure to include a non-hearsay allegation of the defendant’s knowledge of the order violated, must be preserved by timely objection to be reviewable on appeal.

    Holding

    No, because hearsay pleading defects in the factual portion of a local criminal court information must be preserved to be reviewable on appeal. Casey’s failure to raise a timely objection waived the defect.

    Court’s Reasoning

    The Court of Appeals addressed whether the hearsay allegation regarding Casey’s knowledge of the order was a jurisdictional defect that could be raised for the first time on appeal. The Court distinguished People v. Alejandro, clarifying that while failure to plead an element of a crime is a non-waivable jurisdictional defect, using hearsay to plead an element is waivable if not objected to. The Court reasoned that pre-CPL case law required non-hearsay criminal pleadings, but any hearsay defect was waived if not raised in a pretrial motion. The court found no legislative intent in the Criminal Procedure Law to change this. It stated that the non-hearsay requirement is met if the allegation falls under a hearsay exception. Here, the detective’s allegation of service was admissible under the public documents exception (certified copy of the order) and Casey’s admission to the detective. The Court stated, “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” The Court emphasized that pleading deficiencies cannot be jurisdictional because a court must have and exercise subject matter jurisdiction to rule on the sufficiency of a pleading. Moreover, the defect was curable by amendment. The Court concluded that because Casey failed to object to the hearsay defect before trial, he was precluded from raising it on appeal.

  • People v. Archbold, 75 N.Y.2d 54 (1999): Reviewability of Unauthorized Sentences

    People v. Archbold, 75 N.Y.2d 54 (1999)

    A sentence imposed in violation of a statutory mandate, rendering it unauthorized, is reviewable on appeal even if the defendant failed to object to the sentence at the time of sentencing.

    Summary

    Archbold was convicted of robbery and burglary. He was sentenced as a second violent felony offender based on a prior burglary conviction. However, the sentencing for the prior conviction occurred after Archbold committed the robbery and burglary. Under New York law, a prior conviction can only serve as a predicate if the sentence for that conviction was imposed before the commission of the subsequent felony. Archbold did not object to the enhanced sentence at the time. The New York Court of Appeals held that the unauthorized sentence was reviewable on appeal, even though the defendant failed to object during sentencing, because the right to be sentenced as provided by law is fundamental.

    Facts

    A Queens County jury convicted Archbold of robbery and burglary committed on February 7, 1995.
    The prosecution sought to sentence Archbold as a second violent felony offender, relying on a March 28, 1995 Kings County conviction for burglary.
    Thus, the Kings County conviction occurred *after* the commission of the Queens County crimes.
    At the sentencing hearing, Archbold admitted the Kings County conviction, but the chronological sequence was not addressed.

    Procedural History

    The Supreme Court, Queens County, sentenced Archbold as a second violent felony offender.
    On appeal, Archbold argued the sentence was unauthorized because the predicate offense occurred after the instant offense.
    The Appellate Division affirmed, holding the claim was unpreserved due to the lack of objection at sentencing.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether an unauthorized sentence, imposed in violation of Penal Law § 70.04(1)(b)(iv), is reviewable on appeal when the defendant failed to object to the sentence at the time of sentencing.

    Holding

    Yes, because “the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court” (citing People v. Fuller, 57 N.Y.2d 152, 156).

    Court’s Reasoning

    The Court of Appeals reasoned that Penal Law § 70.04(1)(b)(iv) clearly requires that the sentence for the predicate felony must have been imposed *before* the commission of the felony for which the defendant is being sentenced. The court found the sentence was unauthorized because it violated this statutory mandate.
    The Court rejected the argument that the defendant waived his right to challenge the sentence, noting that the discussions at sentencing centered solely on the validity of the Kings County conviction, not on the chronological sequence of the offenses and sentencing.
    Regarding preservation, the Court acknowledged the general rule that unpreserved issues are not reviewable on appeal. However, it cited exceptions for unauthorized sentences, relying on People v. Fuller and People v. Letterlough, 86 N.Y.2d 259.
    The Court distinguished People v. Smith, 73 N.Y.2d 961, noting that Smith involved a question of whether an out-of-state conviction was equivalent to a New York felony, which requires factual development at the trial level. In contrast, the sequentiality issue in this case was apparent from the record.
    The Court emphasized that “the court’s lack of authority to sentence a defendant as a predicate felon based on a conviction concededly out of sequence may be determined from the face of the appellate record, which necessarily contains both relevant dates. No resort to outside facts, documentation or foreign statutes is necessary.”
    The Court also noted that challenges to presentence procedures are distinct from challenges to sentencing power itself (citing People v. Oliver, 63 N.Y.2d 973).

  • People v. familiar, 92 N.Y.2d 936 (1998): Requirements for Preserving Grand Jury Notice Claims

    People v. familiar, 92 N.Y.2d 936 (1998)

    A defendant’s claim that the prosecution violated the notice requirements for Grand Jury testimony under CPL 190.50(5) must be raised at trial or in a motion to set aside the verdict to be preserved for appellate review.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the defendant’s claim regarding a violation of CPL 190.50(5) was unpreserved because it was not raised during trial or in a motion to set aside the verdict. The defendant argued he did not receive adequate notice that the Grand Jury would question him about a specific incident. The Court of Appeals emphasized the importance of raising such issues in a timely manner to allow the trial court an opportunity to address them. The Court also rejected the defendant’s ineffective assistance of counsel claim.

    Facts

    The defendant was arrested and arraigned on a felony complaint for sodomy related to an incident on December 1, 1995. The People notified the defendant of their intent to present the case to a Grand Jury, and the defendant indicated his intent to testify. During his Grand Jury testimony on February 20, 1996, the defendant was questioned about both the December 1 incident and an alleged rape of the same complainant on September 2, 1995. Subsequently, the Grand Jury indicted the defendant on charges related to both incidents, and he was convicted after a jury trial.

    Procedural History

    After his conviction, the defendant filed a CPL 440.10 motion, claiming he received insufficient notice regarding the September 2 incident before his Grand Jury testimony, thus violating CPL 190.50(5). The trial court denied the motion after a hearing, and the Appellate Division affirmed. The Court of Appeals then reviewed the case.

    Issue(s)

    1. Whether the defendant preserved his claim that the prosecution violated CPL 190.50(5) by failing to provide adequate notice that the Grand Jury would question him about the September 2 incident.
    2. Whether the defendant received ineffective assistance of counsel.

    Holding

    1. No, because the defendant did not raise the issue before or during trial, nor in his initial motion to set aside the verdict.
    2. No, because the defendant received meaningful representation before the Grand Jury and at trial.

    Court’s Reasoning

    The Court of Appeals held that the defendant’s claim under CPL 190.50(5) was unpreserved. The court emphasized that the issue was never raised before or during trial, nor in the initial motion to set aside the verdict under CPL 330.30. The first time the argument was raised was in reply papers to the CPL 330.30 motion, which was deemed insufficient to preserve the issue for appeal. The court noted that there were multiple opportunities to raise the issue before the trial court, but the defendant failed to do so.

    Regarding the ineffective assistance of counsel claim, the Court agreed with the lower courts that the defendant received meaningful representation, citing People v. Benevento, 91 NY2d 708, 712-714. The Court did not elaborate on the specific reasons for this conclusion, but affirmed the lower courts’ findings. The Court also stated that the defendant’s remaining claims were either unpreserved or without merit.

    The court implicitly reinforced the importance of timely raising objections and legal arguments in order to preserve them for appellate review. The failure to raise the CPL 190.50(5) issue at the trial level was fatal to the defendant’s claim on appeal.

  • People v. Montgomery, 96 N.Y.2d 805 (2001): Tolling Probation Upon Declaration of Delinquency

    People v. Montgomery, 96 N.Y.2d 805 (2001)

    The filing of a declaration of delinquency tolls the expiration of a probationary sentence, and a challenge to the timeliness of a violation of probation hearing must be raised at the hearing to be preserved for appellate review.

    Summary

    Defendant was convicted of criminal possession of a weapon in 1987 and sentenced to probation. He violated his probation, absconded, and was arrested in Nassau County on new charges. He pleaded guilty to robbery and was sentenced to prison. In 1991, a declaration of delinquency was issued regarding his probation. After a violation of probation hearing in 1996, his probation was revoked, and he was sentenced to a consecutive prison term. The New York Court of Appeals held that the declaration of delinquency tolled the probationary period and that his claim that the violation of probation hearing was untimely was not preserved for appellate review because he failed to raise it at the hearing.

    Facts

    In September 1987, the defendant was convicted in Kings County of criminal possession of a weapon in the third degree and sentenced to five years probation and community service.

    Three and a half years into his probation, the defendant violated the terms, absconded to Nassau County, and was arrested and charged with two separate crimes.

    The defendant pleaded guilty to robbery in the first degree in Nassau County and in 1992 was sentenced as a second felony offender to 9 to 18 years in prison.

    In November 1991, the Supreme Court, Kings County, issued a declaration of delinquency and a warrant for the defendant’s arrest related to the probation violation.

    In 1996, after a violation of probation hearing, the court revoked the 1987 sentence of probation and imposed a sentence of 2 1/3 to 7 years, to run consecutively to the 9-to-18-year Nassau County sentence.

    Procedural History

    The Supreme Court, Kings County, revoked the defendant’s probation after a hearing.

    The Appellate Division affirmed the Supreme Court’s decision.

    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the filing of a declaration of delinquency in 1991 tolled the expiration of the probationary sentence pursuant to Penal Law § 65.15(2)?

    2. Whether the defendant’s claim that the violation of probation hearing was untimely under CPL 410.30 was preserved for appellate review?

    Holding

    1. Yes, because the filing of a declaration of delinquency in 1991 tolled the expiration of the probationary sentence (Penal Law § 65.15 [2]).

    2. No, because the defendant did not raise his claim that the hearing was untimely under CPL 410.30 at the violation of probation hearing; thus, the argument is unpreserved for appellate review.

    Court’s Reasoning

    The Court of Appeals agreed with the Appellate Division’s ruling that the filing of the declaration of delinquency tolled the expiration of the probationary sentence. This aligns with Penal Law § 65.15(2), which addresses the tolling of probationary sentences when a declaration of delinquency is filed.

    The Court emphasized the importance of preserving issues for appellate review. Because the defendant failed to raise the argument regarding the timeliness of the hearing under CPL 410.30 at the violation of probation hearing itself, he was precluded from raising it for the first time on appeal. The Court implicitly reinforces the principle that trial courts must be given the opportunity to address alleged errors or irregularities in the first instance.

    The Court’s decision highlights the practical importance of timely objections and the consequences of failing to raise issues at the appropriate stage of legal proceedings. This is a critical consideration for defense attorneys handling probation violation cases.