People v. Gray

• Decision Date: 11 May 1995
• Citation: 652 N.E.2d 919,86 N.Y.2d 10,629 N.Y.S.2d 173
• Parties: , 652 N.E.2d 919 The PEOPLE of the State of New York, Appellant, v. Mike GRAY, Respondent. The PEOPLE of the State of New York, Appellant, v. Patricia COOPER, Respondent. The PEOPLE of the State of New York, Appellant, v. Marshal GORDON, Respondent. The PEOPLE of the State of New York, Respondent, v. Lenton IVEY, Appellant. The PEOPLE of the State of New York, Respondent, v. Michael BARNES, Appellant. The PEOPLE of the State of New York, Respondent, v. Francisco TEJADA, Also Known as Rubin Rodriguez, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 173

629 N.Y.S.2d 173

86 N.Y.2d 10, 652 N.E.2d 919

The PEOPLE of the State of New York, Appellant, v. Mike GRAY, Respondent.

The PEOPLE of the State of New York, Appellant, v. Patricia COOPER, Respondent.

The PEOPLE of the State of New York, Appellant, v. Marshal GORDON, Respondent.

The PEOPLE of the State of New York, Respondent, v. Lenton IVEY, Appellant.

The PEOPLE of the State of New York, Respondent, v. Michael BARNES, Appellant.

The PEOPLE of the State of New York, Respondent, v. Francisco TEJADA, Also Known as Rubin Rodriguez, Appellant.

Court of Appeals of New York.

May 11, 1995.

[86 N.Y.2d 13] [652 N.E.2d 920] Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Polly Greenberg, of counsel), for appellant in the first and second above-entitled actions. I.

Jonathan P. Willmott and Philip L. Weinstein, New York City, for respondent in the first above-entitled action. I.

[86 N.Y.2d 14] Susan H. Salomon and Philip L. Weinstein, New York City, for respondent in the second above-entitled action. I.

Robert T. Johnson, Dist. Atty. of Bronx County, New York City (Nancy D. Killian and Peter D. Coddington, of counsel), for appellant in the third above-entitled action.

Adrienne Hale and Philip L. Weinstein, New York City, for respondent in the third above-entitled action. I.

Debevoise & Plimpton, New York City (Elizabeth Buckley, of counsel), and Philip L. Weinstein, for appellant in the fourth above-entitled action. I.

[86 N.Y.2d 15] Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Ellen Sue Handman, of counsel), for respondent in the fourth above-entitled action. I.

Svetlana M. Kornfeind and Philip L. Weinstein, New York City, for appellant in the fifth above-entitled action. I.

[86 N.Y.2d 16] Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Sheryl Feldman, of counsel), for respondent in the fifth above-entitled action. I.

Arthur H. Hopkirk and Philip L. Weinstein, New York City, for appellant in the sixth above-entitled action. I.

[86 N.Y.2d 17] Robert T. Johnson, Dist. Atty. of Bronx County, New York City (Howard B. Sterinbach and Peter D. Coddington, of counsel), for respondent in the sixth above-entitled action. I.

[86 N.Y.2d 18] Brenner & Scott, Melville (Jonathan C. Scott, of counsel), for New York State Ass'n of Crim. Defense Lawyers, amicus curiae in all the above-entitled actions.

Christine Duisin, Riverhead, for New York State Dist. Attys.' Ass'n, amicus curiae in the second, third, fourth, fifth and sixth above-entitled actions.

OPINION OF THE COURT

SMITH, Judge.

We hold that where a defendant seeks to argue on appeal, in accordance with People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51, that the People have failed to establish the defendant's knowledge of the weight of drugs, preservation of that contention is required by an appropriate objection. ¹

In each of these cases the defendant argues that no preservation by specifically raising the issue of proof of the defendant's knowledge of weight is necessary. Some contend that, at most, a general motion to dismiss is all that is necessary in order to claim that the evidence of knowledge of weight is insufficient for a conviction. They rely on both statutory provisions (CPL 470.05, 470.15[4][a], [b] and on the Due Process Clauses of the Federal and State Constitutions. The People counter that preservation is necessary, advancing both historical and practical reasons.

Turning first to defendants' statutory claims, in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court. ² Notwithstanding contentions to the contrary, we hold that preservation is required in these cases. The preservation mandate is not new. We noted in People v. Cona, 49 N.Y.2d 26, 33, n. 2, 424 N.Y.S.2d 146, 399 N.E.2d 1167, that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be "specifically directed" at the alleged error which, here, is the failure of the People to show that the defendants had knowledge of the weight of the contraband. Similarly, in People v. Dekle, 56 N.Y.2d 835, 837, 452 N.Y.S.2d 568, 438 N.E.2d 101, we rejected the defendant's due process challenge, holding that no due process violation occurred where a defendant was convicted upon proof sufficient to satisfy the court's charge where the defendant failed to preserve his attack upon the charge. Recently, in People v. Hill, 85 N.Y.2d 256, 259, 624 N.Y.S.2d 79, 648 N.E.2d 455, supra, we stressed that "where the issue is fully preserved for our review, the knowledge requirement is applicable to the [specified criminal possession and criminal sale charges]" (emphasis supplied).

In People v. Kilpatrick, 143 A.D.2d 1, 2-3, 531 N.Y.S.2d 262, the Appellate Division interpreted the difference between paragraphs (a) and (b) of CPL 470.15(4) and held that where a defendant argues that evidence to support his or her conviction was legally insufficient, the traditional strictures of preservation do not apply. That Court reached this conclusion by focusing upon the omission, in paragraph (b), of the statement included in paragraph (a), that the error be "duly protested" by the defendant. Those paragraphs read:

"4. The kinds of determinations of reversal or modification deemed to be upon the law include, but are not limited to, the following:

"(a) That a ruling or instruction of the court duly protested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment, deprived the defendant of a fair trial;

"(b) That evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted" (emphasis supplied).

Defendants' contention that CPL 470.15(4)(a) and (b) eliminate the necessity of preservation is misplaced. It is true that the specific language of preservation is present in CPL 470.15(4)(a) and absent from CPL 470.15(4)(b). Despite the Appellate Division's and defendants' interpretations, we are of the view that this portion of Kilpatrick, construing CPL 470.15(4) as described, should not be followed given its direct conflict with our holdings in Cona and Dekle, which govern here (see also, People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4 [general motion to dismiss at close of evidence insufficient to preserve claim regarding establishment of particular element of crime]; People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876 [requiring more than blanket trial order of dismissal to preserve specific claim involving critical conversation].

The preservation rule is necessary for several reasons. Under article VI, § 3 of the New York State Constitution, the Court of Appeals, with limited exceptions, is empowered to consider only "questions of law" (People v. Belge, 41 N.Y.2d 60, 390 N.Y.S.2d 867, 359 N.E.2d 377). The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention. A general motion fails at this task (People v. Narayan, 54 N.Y.2d 106, 444 N.Y.S.2d 604, 429 N.E.2d 123). As a practical matter, a general motion to dismiss is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous ground. A sufficiently specific motion might provide the opportunity for cure before a verdict is reached and a cure is no longer possible (see, e.g., CPL 260.30[7].

Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or nonguilt of a defendant.

Defendants' claim that the convictions here, since they are based on insufficient evidence, represent a violation of the proper "mode of proceedings," is also unavailing. This language, derived from our decision in People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, provides an exception to traditional preservation rules in constricted circumstances:

"There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would effect the organization of the court or the mode of proceedings prescribed by law. (Cancemi v. People, 18 N.Y. 128, 138; People ex rel. Battista v. Christian, 249 N.Y. 314, 319 .) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v. Christian (supra), the court ruled that an information charging a defendant with an 'infamous' crime was a nullity, despite defendant's consent, where the State Constitution provided that infamous crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below" (emphasis supplied).

The Patterson exception is, by definition of the Court, narrow in application. Defendants here attempt to apply it broadly, in a fashion not contemplated by this Court. The Patterson Court's description of the exception clarifies that the rule goes to the general and over-all procedure of the trial, forbidding alteration of mandated procedural, structural, and process-oriented standards. The examples set forth by Patterson--changing of the burden of proof, consent to less than a 12- jury in a criminal...