9-b-3 Failure to Protest (the "preservation Requirement")

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9-B-3. Failure to Protest (the "Preservation Requirement")

Appellate courts generally are not willing to decide questions that the trial court had no chance to consider. Therefore, an error usually must be "preserved" by pointing it out to the trial court at a time when the trial court had the opportunity to fix it. This applies whether you pleaded guilty or not. To preserve a legal error for appellate review, you (or more likely your lawyer) generally must have objected to the mistake when it occurred or at a later time when the trial court still had the chance to correct the error.⁶⁹ In other words, you usually are not allowed to raise an issue for the first time on appeal. Instead, you must have raised the issue at your trial so that the trial court could have addressed it before it became a problem. By doing so, you have "saved" this objection in the record, notifying the appellate court that you pointed out the error when it occurred.

In general, you must have identified the specific legal basis for your objection at trial in order to preserve the error for appellate review.⁷⁰ In other words, it is not enough to have objected without explaining at the time of the objection why you were objecting. However, an appellate court will also review an error on legal grounds that you did not specify at trial if the trial court expressly decided the particular issue in response to an objection by a party.⁷¹ You may also have preserved errors for review on appeal through a request, rather than an objection.⁷² This means that if you asked the judge for a particular ruling or instruction⁷³ but he or she refused, you may challenge the trial court's refusal even if you did not formally object. However, if you want to challenge an error in the ruling or instruction that the trial court chose to give instead of your instruction, you must have objected.⁷⁴ In any event, the issue must have been brought to the trial court's attention.⁷⁵

(a) Errors Not Subject to the Preservation Requirement

If you did not object to an error at your trial and the court did not consider the specific issue, an appellate court will usually refuse to consider the error on appeal. But, you may still be able to appeal if the error deals with a fundamental aspect of the fairness of your trial. Errors like this fall into two categories: errors reviewed "in the interest of justice" and errors that disrupt the "mode of proceedings."

Any unpreserved error may be reviewed in the interest of justice by New York's Appellate Division courts (the intermediate appellate courts).⁷⁶ Thus, if something happened that was so unfair that it may have affected your conviction, but it was not objected to or otherwise preserved, you can still argue that the Appellate Division should consider it in the interest of justice. That is, even if the error you wish to appeal is generally subject to the preservation requirement, you may ask an Appellate Division court to consider your appeal.⁷⁷ Note that if you did not preserve an issue, an appellate court is not required to review it.⁷⁸ The Court of Appeals (the highest court), by contrast, is limited by the New York State Constitution to only review "questions of law,"⁷⁹ which generally means that an issue must have been preserved by objection. ⁸⁰ But errors that disrupt the organization of the court or the mode of proceedings are treated as questions of law even without preservation by objection.⁸¹ So, if the error you wish to appeal falls into the limited class of errors that affect the organization of the court or the mode of proceedings, you can appeal even if you did not preserve the error or agreed at trial to accept the error.⁸² These errors are considered so fundamental that they are not subject to the preservation requirement at all.

In either situation, successful appeals are generally based on a violation of trial procedure rules or a violation of your "fundamental constitutional rights."⁸³ Errors that can be raised for the first time on appeal include the following scenarios:

(1) You were tried twice for the same offense in violation of your rights against double jeopardy guaranteed by the New York State or U.S. Constitutions⁸⁴ (this protection does not apply to rights against double jeopardy provided by statute rather than a constitution⁸⁵);

(2) You were deprived of your right to a lawyer;⁸⁶

(3) You were deprived of your right to be present at an important stage of the trial⁸⁷ or other important court proceedings;⁸⁸

(4) Your lawyer was not told of the contents of a note the judge received from the jury before the judge answered the jury's questions;⁸⁹

(5) You were deprived of your right to have your trial supervised by a judge;⁹⁰ or

(6) Your sentence, or the way in which it was determined, was illegal.⁹¹

(b) Errors Subject to the Preservation Requirement

Other errors that do not fall into the categories that were presented in Section (a) above will not be reviewed by the appellate court unless it was preserved in the trial court.⁹² Errors that will only be reviewed when preserved at the trial court include:

(1) You want to withdraw a guilty plea or want the judgment of conviction vacated;⁹³

(2) A challenge to the constitutionality of a statute;⁹⁴

(3) Deprivation of your right to confront a witness;⁹⁵

(4) Admissibility of evidence;⁹⁶

(5) Comments or conduct of counsel, or of the court;⁹⁷

(6) Severance or joint trials. A joint trial occurs when only one trial is held but the case involves more than one defendant. A severance allows a defendant to be tried separately from the other defendants in the case on one or more counts.;⁹⁸

(7) Jurisdiction and venue. Jurisdiction is the state and court that the case is in, while venue is the county.;⁹⁹

(8) Jury selection;¹⁰⁰ or

(9) Excessive or harsh sentences.¹⁰¹

Keep in mind that because most errors are not preserved for appeal, this is an incomplete and partial list. You should assume that an error will be subject to the preservation requirement, and needs to be raised at trial in order to be argued on appeal.

69. If you make no protest, the intermediate appellate court cannot review the error as a "question of law." N.Y. Crim. Proc. Law § 470.05(2) (McKinney 2014). But an appellate court nonetheless may decide to review the error "in the interest of justice." N.Y. Crim. Proc. Law § 470.15(6)(a) (McKinney 2014). The "in the interest of justice" exception to the preservation requirement is discussed in Part (b) of this Subsection.

70. See People v. Hawkins, 11 N.Y.3d 484, 492, 900 N.E.2d 946, 950, 872 N.Y.S.2d 395, 399 (2008) (holding that a motion must be "specifically directed" at the error to preserve it); People v. Dien, 77 N.Y.2d 885, 886, 571 N.E.2d 69, 70, 568 N.Y.S.2d 899, 900 (1991) (holding that "defendant made only a general objection, thus failing to preserve his argument" for appellate review); People v. Rivera, 73 N.Y.2d 941, 942, 537 N.E.2d 618, 618, 540 N.Y.S.2d 233, 233 (1989) (holding that defendant's general objection did not preserve his argument for appellate review). But see People v. Vidal, 26 N.Y.2d 249, 254, 257 N.E.2d 886, 889, 309 N.Y.S.2d 336, 340 (1970) ("If the proffered evidence is inherently...