Tuesday, November 21, 2006

CA: legal sufficiency arguments not preserved unless TOD renewed at close of all proof

People v Lane, 2006 NY Slip Op 08641 [available here]

Making explicit what was previously somewhat unclear, the Court of Appeals has held in People v Lane that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof. Without much fanfare, the Court simply held,

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review.

(People v Lane, 2006 NY Slip Op 08641 [citations omitted].)

The Court cited to its previous decisions in People v Hines and People v Payne, but neither of those decisions went as far as the Court does in Lane. In Hines, the Court held that the defendant could not argue on appeal that the People's evidence was insufficient to support a verdict where defendant put on proof after the People rested and filled in some gaps in the People's case. In that case, even though the TOD motion was made at the end of the People's case and not thereafter renewed, the reviewing appellate court was obligated to consider the sufficiency of all the evidence (defendant's included) and was not bound to put itself in the shoes of the trial court at the time it decided the TOD motion (i.e. with only the People's evidence to consider). (See Hines, 97 NY2d 56.) The Court's decision in Payne suggested that the issue in Hines was one of waiver, and not preservation--"[w]hen a trial court denies such a motion at the close of the People's case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People's evidence." (Payne, 3 NY3d 266.) This is a big distinction--under the "waiver" reasoning of Payne, a defendant who made a TOD motion at the close of the People's case and did not renew after presenting evidence could still press his legal sufficiency arguments on appeal, but would have to base his arguments on the entirety of the proof. The Court's decision in Lane moves away from Payne and clarifies that a defendant who does not renew his TOD motion at the close of all proof is out of luck, and any legal sufficiency arguments are unpreserved for review. A harsh decision, but completely in character for an increasingly preservation-obsessed Court.

The Fourth Department has been interpreting Hines in this manner for some time now, so the moral for Fourth Department criminal defense practicioners is not new--make a specific TOD motion when the People rest and renew it at the close of all proof. (See, e.g., People v Carter, 2006 NY Slip Op 08552 [available here] ["Defendant failed to preserve for our review his contention that the conviction of criminal possession of a weapon is not supported by legally sufficient evidence inasmuch as he failed to make a sufficiently specific motion to dismiss, and he also failed to preserve his contention for our review inasmuch as he failed to renew his motion after presenting evidence."].)