It is no secret that the Fourth Department focuses intensely on preservation and harmless error issues when reviewing criminal cases. The criminal cases contained in the packet of decisions handed down this past Friday are no exception. In People v Torres (KA 02-01267), defendant-appellant (relying on the Court of Appeals decision in People v Williams [86 NY2d 236]) argued that the trial court, after hearing arguments from both the People and defense counsel, abused its discretion as a matter of law by fashioning a Sandoval ruling that failed to set forth any type of probative-prejudicial balancing, and merely recited the usual "Defendant has placed his own interests above those of society" factor in support of its ruling. Trial defense counsel asked the trial court to reconsider, arguing that the prejudicial effect of the trial court's decision (which allowed the prosecutor to inquire as to the nature of many of Mr. Torres' prior convictions) outweighed any probative value such convictions had on the question of credibility. The trial court adhered to its ruling.
On this record, the Fourth Department found "Defendant's contention with respect to the Sandoval ruling is not preserved for our review." (Torres at 1.) For this ruling, the Fourth Department cited to CPL 470.05, 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.
It is true that trial counsel in Torres did not make his argument precisely the same way as the issue was presented on appeal-- trial counsel did not cite to Williams, nor did defense counsel tell the trial court that its Sandoval ruling was so counter-intuitive and unsupported as to betray not only an abuse of discretion, but a failure to exercise any discretion at all. But defense counsel did set forth his position regarding the Sandoval issue on the record--that the prosecutor should not be allowed to identify Mr. Torres' prior crimes due to the resulting prejudice--and the trial court ruled in a manner contrary to defense counsel's argument. After the trial court set forth its Sandoval ruling, defense counsel asked to be heard and urged the trial court to reconsider. That should have been enough to preserve the Sandoval issue for appeal. However, it would seem that, under the Fourth (and other) Department's increasingly restrictive preservation requirements, trial counsel's failure to argue an issue precisely as counsel on appeal wishes to argue it will constitute a failure to preserve, even if the issue was raised in more general terms and defense counsel's position was known to the trial court. (See also, People v Combo, 291 AD2d 887 [4th Dept 2002] ["By failing 'to raise any objection to the court's ulimate [Sandoval] ruling,' defendant has failed to preserve that contention for our review"]; People v Englert, 285 AD2d 987 [4th Dept 2001] [same]; People v Villanueva, 289 AD2d 425 [2d Dept 2001] [same].)
The Court of Appeals has confronted this type of strict-preservation argument before, and swatted it down. ( See People v DeBour, 40 NY2d 210, 214-215  ["The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve"].) And CPL 470.05 was changed to its current form to do away with overly ritualistic preservation requirements that served to bar appellate courts from hearing substantive issues on technicalities. (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."].) However, it seems the Departments are trying to undue what the Legislature and Court of Appeals have done, and force a reversion to the old hyper-technical "exception" requirements (or its functional equivalent).
Of course, under this type of super-strict, hyper-technical preservation doctrine, appellate counsel's job becomes simply a matter of copying trial defense counsel's arguments verbatim from the trial record into an appellate brief. Anything other than that will be ruled unpreserved for review.