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
