9.2 - A. General Principles

JurisdictionNew York

A. General Principles

As one noted commentator has observed: “The doctrine of preservation mandates that an issue is preserved for appellate review, and thus available as a basis for reversal or modification of an order or judgment, only if it was first raised in the nisi prius—it may not be raised for the first time on appeal.”2047 In 2008, the Court of Appeals stated that “the requirement of preservation is not simply a meaningless technical barrier to review.”2048 The doctrine rests on principles of fairness to the litigants and judicial economy. The doctrine also encourages the development of issues at the trial level, allowing appellate courts to benefit from the analysis and reasoning of the court or courts below. In People v. Jones,2049 Justice Gulotta presented perhaps the most thorough explanation of the doctrine of preservation, stating:

The doctrine of preservation of error is a natural and familiar outgrowth of our adversarial system of justice. Concisely stated, it requires the parties to an adversary proceeding to press their claims at a procedural stage and in a manner by which they may be efficaciously determined, or otherwise forfeit their right to be heard on the issue. Often couched in terms of “waiver,” which denotes the intentional relinquishment of a known right, the doctrine is perhaps more properly conceived as a method of “procedural default,” whereby the failure to
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