23.40 - 4. Non-Preserved Issues

• Jurisdiction: New York

4. Non-Preserved Issues

A question of law is preserved by a request for a particular ruling or instruction or a protest to a ruling or instruction made at such time as to permit a court to correct itself. No particular form of protest or exception is required.³⁴¹² A general objection is insufficient to preserve certain errors.³⁴¹³ A general objection to a statement in a prosecutor’s summation is insufficient to preserve a claim that the statement was “prejudicial.”³⁴¹⁴

Where an objection was clearly made and ruled on, it may not be necessary to continue to repeat the objection to further questions of the kind objected to and ruled admissible.³⁴¹⁵ It is unnecessary where a court’s ruling establishes the futility of future argument or objection.³⁴¹⁶ The objection or request must later jibe with the ground raised on appeal. Only specific grounds urged in a pre-trial motion³⁴¹⁷ or in an objection during trial³⁴¹⁸ are preserved for review. “Once is enough.”³⁴¹⁹ For example, an objection that proffered evidence that was hearsay does not preserve a claim that the testimony violates the rule against bolstering.³⁴²⁰ These requirements also apply to jury instructions. The mere submission of a correct request to charge does not preserve for review defects in the charge as given. To preserve issues regarding errors in the charge as given, counsel must point out errors and assert reasons why, as well as the charge being inadequate or incorrect.³⁴²¹ The requirement that grounds raised on appeal must first have been raised below has been applied in a variety of contexts.³⁴²²

The dangers in assuming that a claim has been adequately preserved were highlighted by the Court of Appeals in People v. Buckley.³⁴²³ There, the trial court and counsel for the three co-defendants had agreed that to save time, the court would assume that an objection by one co-defendant was joined in by the others unless disavowed. The Court of Appeals held that any error in failing to instruct the jury on a lesser-included offense as requested by one co-defendant did not preserve the issue as to the other co-defendants.

To preserve a challenge to the legal sufficiency of a conviction as a matter of law for Court of Appeals review, a defendant must move for a trial order of dismissal, and the argument must be specifically directed at the error being urged. Generalized motions do not suffice. Appellate division “preservation” is more comprehensive, for it includes law, fact and interest of justice...