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Preservation of Error in New York Criminal Cases

When someone is convicted of a crime in New York, they are entitled to appeal the conviction or to have a higher court review the conviction to make sure that the judge presiding over the trial did not commit any legal errors that may have invalidated the conviction. However, as a general rule, a New York criminal appeal will only be successful if certain steps are taken at trial to preserve the error for appellate review.

The concept behind requiring the preservation of error is that a judge should have the opportunity to review the alleged error at the time it was made so that she can revisit the decision. If a trial judge’s potential mistake is not brought to the attention of the trial judge, there is no opportunity for the judge to reverse their decision or take other corrective actions to remedy the error. In addition, the legislature wants to encourage litigants to bring potential errors to the attention of the judge sooner, rather than later, in order to reduce the chance that a trial is carried on in vain.

For these reasons, a party must generally make a specific objection in order to preserve an error for appellate review. Absent a specific objection, the reviewing court will likely dismiss the appeal. A recent case illustrates this concept.

The Facts of the Case

The plaintiff was charged in a prison assault case with several other men. Allegedly, the defendant and his codefendants assaulted the complaining witness, another prisoner, in his cell and then later when the complaining witness went to report the initial assault.

The codefendants’ theory of the case was that the complaining witness started the fight after the defendants called him names. When the complaining witness testified as to what happened, the defendant questioned him about the names that he was called, specifically, that the defendants called him an “old n*****.” Defense counsel asked the complaining witness several times if he was referred to as an “old n*****,” and at some point, one of the jurors stood up and threatened to leave if the word was used again.

The court admonished the juror. The defendant moved for a mistrial, and was denied. One of the codefendants then asked the court to inquire if the juror could still be fair, given what she had heard. The judge denied this request. The defendant never joined in the codefendant’s request, or made a similar one of his own.

The case proceeded, and all codefendants were eventually found guilty. The defendant appealed, arguing that it was an error for the judge to deny the codefendant’s request to question the juror about whether she could still be fair and impartial.

The court dismissed the defendant’s claim, finding that he did not preserve the issue for appellate review. The court explained that an error will not be preserved based on a codefendant’s objection, and each defendant needs to object independently. Thus, because the defendant failed to do so, he could not complain about the issue on appeal.

Have You Been Charged with a Serious New York Felony?

If you or a loved one has recently been arrested and charged with a New York crime, you should contact the dedicated New York criminal defense attorneys at Tilem & Associates. At Tilem & Associates, we represent those charged with all types of criminal offenses, including drug crimes, gun crimes, and violent crimes. We take every step to ensure that our clients’ rights are respected throughout the process. While we cannot ensure that judges will make favorable legal decisions, we take care to ensure all issues are preserved in the event an appeal is necessary. To learn more, and to schedule your free consultation, call 877-377-8666 today.

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