People v. Udzinski

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before THOMPSON; BRACKEN; THOMPSON
• Citation: 541 N.Y.S.2d 9,146 A.D.2d 245
• Decision Date: 17 April 1989
• Parties: The PEOPLE, etc., Respondent, v. Rick S. UDZINSKI, Appellant.

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541 N.Y.S.2d 9 146 A.D.2d 245 The PEOPLE, etc., Respondent,
v.
Rick S. UDZINSKI, Appellant. Supreme Court, Appellate Division,
Second Department. April 17, 1989.

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[146 A.D.2d 246] John F. Middlemiss, Jr., Ronkonkoma (Anna M. Perry, of counsel), for appellant.

Rick S. Udzinski, pro se.

Patrick Henry, Dist. Atty., Riverhead (Arthur P. Scheuermann, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, EIBER and SPATT, JJ.

BRACKEN, Justice.

The principal question in this case is whether an error in a jury charge, which the defendant claims constituted a violation of his constitutional right to be tried only upon [146 A.D.2d 247] theories charged in the indictment, is reviewable as a matter of law in the absence of a timely objection. We hold that it is not, and affirm the conviction.

"A person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact * * * by forcible compulsion" (Penal Law § 130.65[1]. The meaning of the term "forcible compulsion" embraces both the concept of actual force and the concept of the threat of force (Penal Law § 130.00[8][a], [b]. However, when an indictment specifies that an accused committed sodomy in the first degree through the use of actual force alone, it is error for the Trial Judge to instruct the jury, over objection, that the crime may also be committed by the use of the threat of force (People v. Kaminski, 58 N.Y.2d 886, 460 N.Y.S.2d 495, 447 N.E.2d 43; see

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also, People v. Grega, 132 A.D.2d 749, 517 N.Y.S.2d 105, mod. 72 N.Y.2d 489, 534 N.Y.S.2d 647, 531 N.E.2d 279; People v. Charles, 61 N.Y.2d 321, 329, 473 N.Y.S.2d 941, 462 N.E.2d 118).

The defendant in this case argues that a new trial is necessary as to that count of the indictment which charged him with sexual abuse in the first degree, because by allowing the jury to convict him of this charge based upon a finding that the crime was accomplished by the use of the threat of force, where the indictment specifies that actual force was used, the Trial Judge, in effect, altered the theory of the prosecution.

Assuming that the holding of the Kaminski case (supra ) lends validity to this argument, we find that modification of the judgment on this ground would nonetheless be unwarranted, because any error in this regard was not properly preserved for appellate review as a matter of law and would, in any event, be harmless.

I

It is conceded that defense counsel did not object or except to the Trial Judge's definition of the term "forcible compulsion" in its jury charge. Citing People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846, People v. Grega, 132 A.D.2d 749, 517 N.Y.S.2d 105, mod. 72 N.Y.2d 489, 534 N.Y.S.2d 647, 531 N.E.2d 279, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, and People v. Gray, 71 A.D.2d 295, 423 N.Y.S.2d 66, the defendant argues that a question of law is nonetheless presented, since "no objection is necessary to preserve a deprivation of a fundamental constitutional right". The defendant contends that the alleged Kaminski error in this case deprived him of a constitutional right to be tried only upon theories presented in the indictment (see, N.Y. Const. art. I, § 6; see also, People v. Charles, 61 N.Y.2d 321, 329, 473 N.Y.S.2d 941, 462 N.E.2d 118, supra ), so that [146 A.D.2d 248] such error must be considered reviewable as a matter of law. This court has recently held, in a case decided after the argument of this appeal, that such an error is not reviewable as a matter of law in the absence of an objection (see, People v. Prato, 143 A.D.2d 205, 206, 531 N.Y.S.2d 821). Recognizing that this aspect of the Prato case (supra ) apparently conflicts with the holding of the Fourth Department in People v. Rubin (supra), we believe that a more extended discussion of our rationale is warranted.

A

Before proceeding to address this contention, it will be helpful to recall the rationale underlying the doctrine of preservation, as codified in CPL 470.05(2). This doctrine precludes appellate review, as a matter of law, of any ruling made by the court of original instance unless a protest was made to the ruling "at any * * * time when the court had an opportunity of effectively changing the same" (CPL 470.05[2]. By limiting a litigant's right to have a particular error corrected on appeal where no protest was voiced at the time the error was committed, the doctrine of preservation encourages all parties to be vigilant in the protection of their substantive and procedural rights throughout the course of a litigation. "Abandonment of the [preservation doctrine] actually increases [the prospect of] trial error. Absent the finality rule, judges, prosecutors and defense counsel need not carefully watch for errors during trial because errors can be corrected on appeal though not preserved for review" (29 DePaul L.Rev. 753, 760, quoted in People v. Jones, 81 A.D.2d 22, 30, 440 N.Y.S.2d 248).

The Supreme Court of the United States has repeatedly emphasized that appellate review of claims of error which were not properly raised in the court of original instance (see, Fed.Rules of Crim.Pro. 52[b] provides the accused with an "extravagant protection" to be exercised only in exceptional cases (see, United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203; Namet v. United States, 373 U.S. 179, 190, 83 S.Ct. 1151, 1156, 10 L.Ed.2d 278). The refusal to afford appellate review of

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arguments raised for the first time in the appellate court "encourage[s] all trial participants to seek a fair and accurate trial the first time around" (United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816).

At trial, "the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place [146 A.D.2d 249] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification" (Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594). The doctrine of preservation, therefore, should not be viewed as a pretext by which appellate courts may overlook those errors which are inevitable at any trial (People v. Kingston, 8 N.Y.2d 384, 387, 208 N.Y.S.2d 956, 171 N.E.2d 306), but instead should be regarded as an indispensable means of avoiding such errors in the first instance.

The preservation doctrine applies, in general, to all but an extremely narrow class of error. While it is possible to derive from prior decisional law sweeping statements such as "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right" (People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, supra; see also, People v. Gray, 71 A.D.2d 295, 297, 423 N.Y.S.2d 66, supra ), it is now clear that such obiter dictum no longer reflects sound law. In People v. Thomas, 50 N.Y.2d 467, 473, 429 N.Y.S.2d 584, 407 N.E.2d 430, for example, the Court of Appeals stated that "the rule requiring a defendant to preserve his points for appellate review applies generally to claims of error involving Federal constitutional rights".

The preservation doctrine has been applied so as to preclude appellate review of a wide variety of arguments relating to errors which clearly affected fundamental rights (see, e.g., People v. Fernandez, 72 N.Y.2d 827, 530 N.Y.S.2d 547, 526 N.E.2d 38; People v. Russell, 71 N.Y.2d 1016, 530 N.Y.S.2d 101, 525 N.E.2d 747; People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616 [right to confront adverse witnesses]; People v. Ruz, 70 N.Y.2d 942, 524 N.Y.S.2d 668, 519 N.E.2d 614 [ex post facto punishment]; People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383; People v. Dozier, 52 N.Y.2d 781, 783, 436 N.Y.S.2d 620, 417 N.E.2d 1008 [unconstitutionality of criminal statute, due process]; People v. Benedict, 68 N.Y.2d 832, 508 N.Y.S.2d 175, 500 N.E.2d 873 [due process right to fair trial]; People v. Thomas, supra [Sandstrom error]; People v. Miguel, 53 N.Y.2d 920, 922, 440 N.Y.S.2d 923, 423 N.E.2d 400 [Dunaway error]; People v. Cedeno, 52 N.Y.2d 847, 848, 437 N.Y.S.2d 72, 418 N.E.2d 665 [due process violation based on delay in prosecution]; People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [Payton error]; People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062; People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [Miranda error]; People v. Lieberman, 47 N.Y.2d 931, 419 N.Y.S.2d 946, 393 N.E.2d 1019 [violation of constitutional right to speedy trial]. As a matter of Federal constitutional law, state appellate courts may properly decline to review claims of Federal constitutional error on the basis that such claims were not raised in a procedurally correct manner ( see, e.g., Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, supra [Florida procedure, consistent with Federal constitution, required[146 A.D.2d 250] Miranda claim to be raised at trial or not at all]; Engle v. Isaac, 456 U.S. 107, 124-129, 102 S.Ct. 1558, 1570-1573, 71 L.Ed.2d 783 [defendant's failure to except to jury instruction which unconstitutionally shifted burden of proof on defense of justification constituted valid basis for state appellate court's refusal to entertain argument]. A defendant in a state criminal prosecution who forfeits his right to state appellate review of a constitutional argument because of a procedural default on his part may not avoid the consequences

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of such...