Insufficient Protest To Insufficient Proof

In 1995, in People v Gray (86 NY2d 10 [1995]) the Court of Appeals held that a motion for a trial order of dismissal on the grounds of insufficiency of proof must specify the insufficiency in order to preserve the issue for review. When motion to dismiss is not sufficiently specific there is not a preserved issue of law before the appellate court (See People v Hawkins, 11 NY3d 484 [2008](discussed here).

One would think that fourteen years later defense attorneys would be familiar with and comply with the requirement that there be a specific motion for a trial order of dismissal. Based on the frequency of decisions in which the appellate court has held that the issue of sufficiency of proof raised on appeal was not preserved for review as a matter of law, it is clear that the holding of Gray had yet to become part of the DNA of defense counsel.

this is not hyperbole. In June and July, 2009, the Appellate Division, Fourth Department issued three packets of decisions. In all three packets there was a decision in which the trial attorney had not raised a specific motion for a trial order of dismissal. First, on June 5, 2009 in People v Joseph (63 AD3d 1658 [June 5, 2009]), then on June 12, 2009, in People v Mills (63 AD3d 1717 [June 12, 2009]) and, again on July 10, 2009 in People v Reome (2009 NY Slip Op 05804 [July 10, 2009]).

Since 1995 there have been more than 1500 such decisions statewide. In an effort to deal with this problem, Don Thompson and I will be lecturing at the Appellate Division, Fourth Department September 2009 trainer on appellate strategies when the attorney failed to preserve the issue. Then in October, I will be be presenting a CLE for NYSDA on the ethical implications of the failure of preserve the issue of insufficiency of proof.