Tuesday, April 6, 2010

In the past the Court of Appeals has held "a party's failure to specify the basis for a general objection renders the argument unpreserved for [that] Court's review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776)." People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue was not preserved for review as a matter of law.

But that is not what the Court held in People v Caban (2010 NY Slip Op 02674 [4/1/10]) in which the People moved before trial for the admission of evidence about an earlier driving incident,
and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor.

The Court held that it
is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position. Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.

Thus, the Court held, without citing any authority, that the District Attorney's summary of the dispute constitutes the required objection.

I expect this holding to be cited frequently by appellate counsel. And not just in cases in which, like Mr. Caban's the People are urging that the matter was preserved so that the Court of Appeals would have authority to reverse an Appellate Division's reversal (as the Court did in Mr. Caban's case).

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