As Justice Felix Frankfurter aptly observed, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”1 With certain limited exceptions, however, issues raised for the first time on appeal will not be considered as a ground for a reversal or modification. There is an element of unfairness about seeking to reverse a judgment on a point not called to the attention of the trial court, and on which the court was not given an opportunity to rule or correct its asserted error. Furthermore, the preservation requirement affords the opposing party an opportunity to make a necessary factual showing or take available legal countersteps.

As in civil proceedings, the Appellate Division has the power in criminal proceedings to review “any question of law or issue of fact involving error or defect***which may have adversely affected the appellant” (see, N.Y. Criminal Procedure Law [CPL] §470.15[a][1]). This broad, comprehensive scope of intermediate appellate review includes discretionary jurisdiction to consider a point raised for the first time on appeal in “the interest of justice.”2

Specifically, a reversal or modification of a judgment, sentence or order may be based, among other grounds, upon a determination made “[a]s a matter of discretion in the interest of justice” (see, CPL §470.15[3][d]). Subdivision 6 of section 470.15 specifies the kinds of determinations of reversal or modification deemed to be made as a matter of discretion in the interest of justice. These include, but are not limited to, the following:

(a) That an error or defect occurring at a trial resulting in a judgment, which error or defect was not duly protested at trial as prescribed in subdivision two of section 470.05 so as to present a question of law, deprived the defendant of a fair trial;3

(b) That a sentence, though legal, was unduly harsh or severe.

Even though the Appellate Division possesses interest of justice jurisdiction, it is to be “exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations.”4 Generally, the court focuses on whether the unprotested error implicated a constitutional or fundamental right, and thus, materially affected the outcome of the proceedings and deprived the appellant of a fair trial. Absent constitutional or fundamental error, the court will not exercise its interest of justice jurisdiction, and the ruling in question—even if erroneous—becomes the law of the case.

New Trial in ‘People v. Rosado’

People v. Rosado,5 decided on June 19, 2012, involved an interesting application of the court’s interest of justice jurisdiction to review unpreserved error in a drug possession case. The majority in Rosado exercised such jurisdiction to review an unpreserved claim of error in a jury instruction relating to the so-called “drug factory presumption,” which creates a rebuttable inference of constructive possession of certain drugs in open view by each person discovered in close proximity to the drugs (see, N.Y. Penal Law §220.25[2]). In a strongly-worded dissent, Justice John W. Sweeny, Jr. postulated that the court’s exercise of such jurisdiction was unwarranted under the facts of the case.

The trial evidence in Rosado showed that, pursuant to the execution of a no-knock warrant, the police entered Vincent Rosado’s “small” apartment and immediately saw him coming out of the bedroom. Ignoring a call to stop, he ran into the bathroom and slammed the door shut. After breaking open the door, the police found him “hovering” over the toilet. The police found $550 on his person in denominations of $20 and $100 dollar bills. Then, upon entering the “small” bedroom from where Rosado had fled, the police saw, in plain view, two plastic containers that held glassine envelopes encased in rice. Looking into the open bedroom closet they saw an additional clear plastic container with a see-through lid, also with glassine envelopes encased in rice. A total of 95 glassines of cocaine and heroin were recovered. Both the majority and dissent agreed that this evidence met all the conditions for instructing the jury on the drug factory presumption.

Without any objection from Rosado’s counsel, the jury was charged on this presumption with regard to the charge of criminal possession of a controlled substance in the third degree, which in this case required intent to sell, and seventh-degree possession, which required only simple possession. During its deliberations, the jury inquired whether the “definition of room presumption and constructive possession” applied “equally to the charges of possession in the third degree and the seventh degree,” to which the court answered affirmatively. The defense counsel not only did not object to the subsequent charge but even agreed with the court that the presumption applied to the third and seventh degrees. The jury convicted Rosado of the seventh-degree possession counts, but acquitted him of the third-degree counts.

On appeal, Rosado argued that even if the instruction on the drug factory presumption was proper with regard to the charge of third-degree possession (intent to sell), the jury should have been instructed that the presumption did not apply to the charge of seventh-degree possession (simple possession). He argued that the presumption was only intended to apply to possession charges containing a weight or intent element, not simple possession charges. Although this issue was unpreserved, the majority nevertheless considered it “in the interest of justice in order to clarify the scope of the drug factory presumption.”

The majority reversed Rosado’s conviction and granted a new trial on the ground that the drug factory presumption was not intended to apply to a seventh-degree possession charge requiring only simple possession, and thus, the jury instruction was erroneous:

The underlying purpose of the drug factory presumption is to hold criminally responsible those participants in a drug operation who may not be observed in actual physical possession of drugs at the moment the police arrive. We note that defendant was acquitted of the third-degree possession counts. We do not believe that the drug factory presumption was intended to apply to seventh-degree possession, because implicit in the idea of a drug factory is that drugs are being prepared for sale. Therefore it should only apply to crimes requiring intent to sell, or crimes involving amounts of drugs greater than what is required for misdemeanor possession.6

Dissent in ‘Rosado’

In his dissent, Sweeny took issue with the majority’s perceived use of its interest of justice jurisdiction for statutory interpretation. Such jurisdiction, he wrote, should only be applied “on a case by case basis” where a particular defendant has been individually deprived of a fair trial by a fundament error:

The majority argues that interest of justice review is needed “in order to clarify the scope of the drug factory presumption.” This is a curious position since, as noted, this issue was neither raised or preserved for our review at trial. Indeed, precedential cases involving interest of justice review make clear that such review applies on a case by case basis, individually and is not designed or intended to be used for statutory interpretation.***. Therefore, the basic premise of the majority that an issue, not preserved for our review, should in any event be reviewed in the interest of justice to “clarify” a legal presumption stands on dubious grounds.

To accept this reasoning would mean that interest of justice review is now available in any case to review any issue, whether fundamental or not, which has either been waived or not preserved at the trial level. Such a procedure is patently unfair to the trial bench who will now be left with the task of ensuring that any potential issue, even those that may be waived as part of counsel’s trial strategy, must be taken into consideration in formulating jury instructions.7

In Sweeny’s view, the trial evidence—including Rosado’s close proximity to the drugs that were recovered, the amount of money and denominations in his pocket, and his actions upon the entry of the police into the apartment—raised “the inference that defendant was, at least, a participant in a drug-selling operation and constructive possessor of the drugs, rather than a customer or visitor.”8 Accordingly, he would have declined to review the presumption issue, and would have affirmed the conviction.

Fortunately for Rosado, he was the beneficiary of the court’s interest of justice jurisdiction because the presumption issue had importance beyond his individual case. The exercise of such jurisdiction, however, remains very rare. Thus, a threshold consideration for any proposed appeal is whether the asserted error has been preserved for appellate review. In some cases, the only thing standing between the appellant and a new trial is the word “objection.” Failure to object to evidence, to submit requests to charge, or to object to an erroneous jury instruction, generally will be fatal to an appeal. By the same token, an appellate court cannot address questions relating to evidence not contained in the record on appeal. The court will not be in a position to review the trial court’s decision to exclude evidence unless the excluded evidence has been marked for identification or, in the case of testimonial evidence, an adequate offer of proof has been made. Failure to comply with these requirements generally results in a waiver of an appellate issue, no matter how ostensibly meritorious.

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Endnotes:

1. See, Henslee v. Planters National Bank & Trust, 335 U.S. 595, 600 (1949).

2. The Court of Appeals has no equivalent interest of justice jurisdiction. The scope of its review is limited to preserved “questions of law only, except that it shall also review questions of fact where the appellate division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment pursuant thereto is entered” (see, CPLR 5501[b]).

3. Subdivision 2 of section 470.05 describes the steps that an appellant must take to preserve an error by timely adequate protest: “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 protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.”

4. See, People v. Harmon, 181 A.D.2d 34, 36 (1st Dept., 1992).

5. —A.D.3d—, 2012 WL 2299525 (1st Dept.).

6. 2012 WL 2299515, at * 1 (citations omitted).

7. Id. at *2 (citation omitted).

8. Id. at *3 (citation omitted).