There seems to be a rough split developing among the Judges of the Court of Appeals over preservation requirements. The latest salvo comes from Judge R.S. Smith's concurring opinion in People v Williams, decided earlier this month. The majority held that a jury instruction was erroneous and reversed defendant's conviction on that ground. Judge R.S. Smith thought the jury instruction was fine, but would have reversed on the defendant's alternate ground (the specific issue raised by the defendant is not important for the purposes of this post). Judge R.S. Smith, considering this alternate issue, wrote:
The People's only argument on this branch of the case is that defense counsel's statement 'I will object' was not specific enough to preserve the [...] issue for review. But while we have at times required a more specific objection for preservation purposes, we have never held that simple 'I object' is always insufficient. Here, where the error was egregious, and where the basis for defendant's protest should have been obvious, the general objection fulfilled the purpose of the preservation requirement by alerting the trial judge to the error and giving him a chance to avoid it.
In support of his argument, Judge R.S. Smith cites to Judge Rosenblatt's majority opinion in People v Payne, where Judge Rosenblatt wrote, "We decline to . . . elevate preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question." (People v Payne, 3 NY3d 266, 273 .) Payne backed away from the strict preservation requirements for a legal sufficiency issue set forth in People v Hines (97 NY2d 56 ). Judge Graffeo wrote the majority opinion in Hines, and dissented from Payne.
For the Fourth Department's part, they show no sign of deviating from their recent trend of tightening up preservation requirements. In two decisions handed down for the May, 2005 term, the Fourth Department refused to reach a defendant's Sandoval argument because "Defendant failed to object to the court's 'ultimate' Sandoval ruling and thus failed to preserve for our review his contention concerning that ruling." (People v Ponder, 2005 NY Slip Op 04757; People v O'Connor, 2005 Slip Op 04902.) It will be interesting to see if the Court of Appeals follows Judges R.S. Smith and Rosenblatt's lead, or whether they follow the Fourth Department down the current path towards reviving the old (and rejected) "exception" preservation requirement (see my previous post on this subject here.)