People v. Udzinski
Citation | 541 N.Y.S.2d 9,146 A.D.2d 245 |
Parties | The PEOPLE, etc., Respondent, v. Rick S. UDZINSKI, Appellant. |
Decision Date | 17 April 1989 |
Court | New York Supreme Court Appellate Division |
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.
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 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 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.
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 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.
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. (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 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, (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 [ ]; People v. Ruz, 70 N.Y.2d 942, 524 N.Y.S.2d 668, 519 N.E.2d 614 [ ]; 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 [ ]; People v. Benedict, 68 N.Y.2d 832, 508 N.Y.S.2d 175, 500 N.E.2d 873 [ ]; 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 [ ]; 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 [ ]. 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 [ ]; Engle v. Isaac, 456 U.S. 107, 124-129, 102 S.Ct. 1558, 1570-1573, 71 L.Ed.2d 783 [ ]. 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 of such forfeiture by resorting to an application for a writ of habeas corpus in the Federal courts, and it is now settled that...
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Objections & related procedures
...563, 552 N.Y.S.2d 863 (2d Dept. 1990) (failure to object to an error in time for it to be cured constitutes waiver); People v. Udzinski , 146 A.D.2d 245, 541 N.Y.S. 2d 9 (2d Dept. 1989). CASES New Media Holding Co., LLC v. Kagalovsky , 118 A.D.3d 68, 985 N.Y.S.2d 216 (1st Dept. 2014). Defen......
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Objections & related procedures
...563, 552 N.Y.S.2d 863 (2d Dept. 1990) (failure to object to an error in time for it to be cured constitutes waiver); People v. Udzinski , 146 A.D.2d 245, 541 N.Y.S. 2d 9 (2d Dept. 1989). CASES Calhoun v. Cty. of Herkimer , 169 A.D.3d 1495, 92 N.Y.S.3d 838 (1st Dept. 2019). By failing to tim......
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Objections & related procedures
...563, 552 N.Y.S.2d 863 (2d Dept. 1990) (failure to object to an error in time for it to be cured constitutes waiver); People v. Udzinski , 146 A.D.2d 245, 541 N.Y.S. 2d 9 (2d Dept. 1989). Cases Andresen v. Kirschner , 297 A.D.2d 235, 746 N.Y.S.2d 258 (1st Dept. 2002). On cross examination, d......
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Objections & related procedures
...563, 552 N.Y.S.2d 863 (2d Dept. 1990) (failure to object to an error in time for it to be cured constitutes waiver); People v. Udzinski , 146 A.D.2d 245, 541 N.Y.S.2d 9 (2d Dept. 1989). CASES Yu v. New York Cty. Health & Hosps. Corp. , 191 A.D.3d 1040, 142 N.Y.S.3d 580 (2d Dept. 2021). Wher......