In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"

that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"

that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety." Not so good for Mr. Backus.

Specifically, Backus appealed from a judgment convicting him, upon his plea of guilty, of two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. Since the offense of driving while intoxicated is a material element of the offense of vehicular assault in the second degree and thus the sentence was illegal insofar as County Court imposed consecutive sentences. As set forth below the two dissenting Justices would have corrected the illegality by ordering the sentences to run concurrently:

As noted by the majority, the sentence in this case was imposed pursuant to a plea agreement, but we have in the past modified a judgment on the ground that the bargained-for sentence was illegal because consecutive sentences were not permissible and have directed that the sentences run concurrently (see People v Taylor, 197 AD2d 858). There is no sentence that the court could impose here that would result in the bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant has already served a one-year definite term and, "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10). Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentence even if the defendant has begun serving it, a court may not alter a sentence that "is in accordance with law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732, lv denied 5 NY3d 804). In our view, the illegality of the sentence was in directing the one-year definite sentence for driving while intoxicated to run consecutively to the one-year concurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238). That defect is corrected by directing that the sentences run concurrently (see id.).