In People v. Bacon, the New York Court of Appeals reaffirmed a long-standing rule: if your defense lawyer fails to raise a specific constitutional objection during trial, you may lose the ability to argue that issue on appeal. This decision is a clear warning to anyone charged with a serious crime—the preservation of your rights depends heavily on the conduct and awareness of your attorney during every stage of trial. It is essential to use experienced counsel when facing charges in New York.
What Happened in This Case
The case arose from a robbery and assault in Brooklyn. Two victims gave statements to police officers at the scene. One of them, while being treated in an ambulance, described the attackers, including the defendant. The prosecution did not call either victim to testify at trial. Instead, two police officers testified about what the victims had allegedly said, including identifying information about the defendant.
During the trial, defense counsel made only one specific objection to the officers’ testimony: a hearsay objection to a statement by one victim about what the other had said. The court sustained that limited objection. However, no constitutional objection was made under the Confrontation Clause, which protects your right to cross-examine the witnesses against you.
After the prosecution rested, the defense moved for a trial order of dismissal, arguing that the People’s evidence was not sufficient. Counsel mentioned that the jury could not evaluate the female victim’s physical or mental condition, and noted there had been no chance to cross-examine her. Still, the motion focused solely on the quality and sufficiency of the evidence, not on a constitutional violation.
Why the Court Rejected the Appeal
On appeal, the defense argued for the first time that admitting the victims’ statements without live testimony violated the Sixth Amendment right to confront witnesses. But the Court of Appeals held that this claim was not preserved for appellate review under Criminal Procedure Law § 470.05.
The court explained that an appellate issue must be clearly raised and ruled upon in the trial court. Defense counsel never invoked the Constitution, never cited confrontation caselaw, and never alerted the judge that this was a constitutional matter. Instead, the defense focused on evidence strength and whether the People met their burden to prove the charges.
The court emphasized that merely referring to the absence of cross-examination does not automatically raise a constitutional argument. A general reference is not enough to trigger full appellate review. The judge must be given a real opportunity to address and correct an alleged violation at trial. Since that did not happen here, the appellate court declined to consider the constitutional claim.
The Importance of Clear Objections at Trial
This ruling underscores a critical fact: your trial lawyer must preserve all significant legal issues, especially constitutional claims, or you risk losing them forever. Preservation is not just a technicality. It is the difference between being able to challenge a violation and being stuck with a decision that may not have been fair.
In criminal trials, statements made outside of court—especially from witnesses who never testify—can be deeply damaging. If the government introduces those statements and your lawyer does not object on Confrontation Clause grounds, the appellate courts will usually not save you after the fact.
Your Defense Must Be Strategic From the Start
This case illustrates why you cannot wait until appeal to start thinking about constitutional rights. Your lawyer must recognize confrontation issues immediately and put objections on the record in clear terms. Silence, vague comments, or general complaints are not enough.
At Tilem & Associates, P.C., we prepare every case with preservation in mind. We raise the right objections at the right time, and we make sure that your rights are fully protected throughout your case. Our team understands the law and how to use it to your advantage—at trial and beyond.
Contact Tilem & Associates for Strategic, Constitutional Defense
If you are charged with a crime and concerned about your right to confront witnesses or any other constitutional issue, you need experienced trial attorneys who know how to preserve your rights at every stage. Do not wait until appeal to find out that a critical argument was lost. Call Tilem & Associates, P.C. today at (516) 559-0168 to schedule a confidential consultation. We will review your case and help you take immediate action to defend your future.