As you know, it has long been held that counsel fails to preserve for appellate review legal insufficiency claims when he has failed to raise the issue in a specific TOD motion (see, People v Gray, 86 NY2d 10 [1995]). However, CPL 290.10, which governs TOD motions, gives courts the authority to grant TODs only when the evidence is not only legally insufficient as to the charged offense but also insufficient to support a conviction for a lesser. A court has no authority to grant a TOD if the evidence is sufficient to support a lesser. Thus, for example, a court has no authority to grant a TOD motion on a depraved indifference murder charge in which the evidence is sufficient as to recklessness but insufficient as to depravity because the evidence is sufficient to support a conviction for manslaughter in the second degree.

Given the lack of possible remedy, why should defense counsel be expected to make a TOD motion to challenge a charge in instances where the evidence is legally insufficient as to the charge but not its lesser? In such instances, the motion would be frivolous (as the court has no authority to grant it given the evidence is sufficient to support a lesser, though not sufficient to support the charged offense). Since the trial court could not have granted a TOD motion in such circumstances, on appeal where there was insufficient evidence to support the charge, but sufficient evidence to support a lesser included offense, one should argue that interest of justice dictates review of this unpreserved legal sufficiency issue. Additionally, one should also argue that the legal insufficiency issue ought to be reviewed as a question of law despite the lack of of a specific TOD motion because requiring such a motion to have been made when the trial court could not grant relief is to require the defendant to make a frivolous motion. A similar argument prevailed in the Court of Appeal case of People v Loree (8 NY3d 541, 545-546 [2007]) regarding preservation of PRS plea issues:

"We similarly conclude that where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion. In so deciding, we cannot shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge. But if the trial judge informs the defendant of postrelease supervision during the course of sentencing, as also happened here, a defendant may no longer move to withdraw the plea since a motion may only be made under CPL 220.60(3) “[a]t any time before the imposition of sentence” (emphasis added). Finally, the omission at issue is clear from the face of the record and therefore not properly raised in a CPL article 440 motion."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender