Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"

that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.