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Exceptions to the Preservation Rule
by Gary Muldoon
Muldoon & Getz
Rochester, New York

The "preservation rule" requires that an attorney raise an issue, usually in the form of an objection, for the issue to be considered on appeal. CPL 470.05. There are four categories where preservation is not required: weight of the evidence; interest of justice; mode of proceedings errors; and specific exceptions to the preservation rule.

Weight of the evidence

The authority to review whether the verdict is against the weight of the evidence rests solely with the intermediate appellate court. CPL 470.15(5). The issue need not be preserved at the trial level; a trial court in fact lacks authority to grant this relief. People v Roman, 217 AD2d 431 (1st Dept 1995). The Court of Appeals also lacks authority to review the weight of the evidence. See People v Bleakley, 69 NY2d (1987). (In contrast, the trial court as well as both levels of appellate courts have authority to review whether the evidence was "not legally sufficient." CPL 330.30(1) (trial court); CPL 470.15(4)(b) (appellate courts)).

Interest of justice

Second, an intermediate appellate court has "interest of justice" jurisdiction to address an unpreserved issue. CPL 470.15(6)(a). This authority is sparingly exercised. See People v Sinha, 84 AD3d 35 (1st Dept 2011), affd 19 NY3d 932 (2012).

Mode of proceedings

Third, under the "mode of proceedings" rule, certain variances from fundamental procedure, usually occurring at trial, will result in reversal despite lack of preservation. People v Patterson, 39 NY2d 288 (1976); People v O’Rama, 78 NY2d 270 (1991).

Specific exceptions

Finally, a limited number of exceptions to the preservation rule are recognized. With these, the Court of Appeals has held that preservation is unnecessary for the issue to be reviewed on appeal. As stated by Judge Robert S. Smith, "[w]e review unpreserved questions when common sense and practical necessity dictate we should." Misicki v Caradonna, 12 NY3d 511, 525 (2009) (dissenting); see also, People v Udzinski, 146 AD2d 245 (2d Dept 1989).

The reasons for not requiring preservation may vary: with ineffective assistance of trial counsel, stated Judge Smith, "it would be absurd to insist on preservation by the very counsel claimed to be ineffective." With other claims, he stated, "it would be unreasonable to expect them to be preserved below." Misicki v Caradonna, supra.

The exceptions include:

• ineffective assistance of counsel, see People v Lewis, 2 NY3d 224, n. 2 (2004).
• violation of right to counsel, People v Banks, 53 NY2d 819 (1981); see also, People v McLean, 15 NY3d 117 (2010).
• inclusory concurrent count, People v Lee, 39 NY2d 388 (1976); People v Rodrigues, 74 AD3d 1818 (4th Dept 2010).
• if a guilty plea allocution undercuts the elements of the crime, People v Lopez, 71 NY2d 662 (1988) (the "rare case" exception).
• some forms of double jeopardy, see People v Michael, 48 NY2d 1 (1979); cf. People v Biggs, 1 NY3d 225 (2003).
• sentencing: a defendant is entitled to be sentenced according to law. People v Samms, 95 NY2d 52 (2000); cf. People v Nieves, 2 NY3d 310 (2004) (length of order of protection is outside the "illegal sentence" exception).

© 2012 by Gary Muldoon