Majority
OPINION OF THE COURT
We hold that where a defendant seeks to argue on appeal, in accordance with People v Ryan ( 82 NY2d 497 ), that the People have failed to establish the defendant’s knowledge of the weight of drugs, preservation of that contention is required by an appropriate objection.[1]
In each of these cases the defendant argues that no preservation by specifically raising the issue of proof of the defen
1 In People v Hill ( 85 NY2d 256 ), we recently held that the knowledge requirement of our decision in People v Ryan should be applied retroactively, where the issue was preserved, in cases pending on direct appeal as of December 16, 1993.
Turning first to defendants’ statutory claims, in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court.[2] Notwithstanding contentions to the contrary, we hold that preservation is required in these cases. The preservation mandate is not new. We noted in People v Cona ( 49 NY2d 26 , 33, n 2) that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be "specifically directed” at the alleged error which, here, is the failure of the People to show that the defendants had knowledge of the weight of the contraband. Similarly, in People v Dekle ( 56 NY2d 835 , 837), we rejected the defendant’s due process challenge, holding that no due process violation occurred where a defendant was convicted upon proof sufficient to satisfy the court’s charge where the defendant failed to preserve his attack upon the charge. Recently, in People v Hill ( 85 NY2d 256 , 259, supra), we stressed that "where the issue is fully preserved for our review, the knowledge requirement is applicable to tbe [specified criminal possession and criminal sale charges]” (emphasis supplied).
In People v Kilpatrick ( 143 AD2d 1 , 2-3), the Appellate Division interpreted the difference between paragraphs (a) and (b) of CPL 470.15 (4) and held that where a defendant argues
2 CPL 470.05 reads, in part: "2. 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. Such protest need not be in the form of an ’exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.”
"4. The kinds of determinations of reversal or modification deemed to be upon the law include, but are not limited to, the following:
"(a) That a ruling or instruction of the court duly protested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment, deprived the defendant of a fair trial;
"(b) That evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted” (emphasis supplied).
Defendants’ contention that CPL 470.15 (4) (a) and (b) eliminate the necessity of preservation is misplaced. It is true that the specific language of preservation is present in CPL 470.15 (4) (a) and absent from CPL 470.15 (4) (b). Despite the Appellate Division’s and defendants’ interpretations, we are of the view that this portion of Kilpatrick, construing CPL 470.15 (4) as described, should not be followed given its direct conflict with our holdings in Cona and Dekle, which govern here (see also, People v Bynum, 70 NY2d 858 , 859 [general motion to dismiss at close of evidence insufficient to preserve claim regarding establishment of particular element of crime]; People v Stahl, 53 NY2d 1048 , 1050 [requiring more than blanket trial order of dismissal to preserve specific claim involving critical conversation]).
The preservation rule is necessary for several reasons. Under article VI, § 3 of the New York State Constitution, the Court of Appeals, with limited exceptions, is empowered to consider only "questions of law” (People v Beige, 41 NY2d 60 ). The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court’s attention. A general motion fails at this task (People v Narayan, 54 NY2d 106 ). As a practical matter, a general motion to dismiss is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous ground. A sufficiently specific motion might provide the opportunity for cure before a verdict
Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or nonguilt of a defendant.
Defendants’ claim that the convictions here, since they are based on insufficient evidence, represent a violation of the proper "mode of proceedings,” is also unavailing. This language, derived from our decision in People v Patterson ( 39 NY2d 288 , 295, affd 432 US 197 ), provides an exception to traditional preservation rules in constricted circumstances:
"There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would effect the organization of the court or the mode of proceedings prescribed by law. (Cancemi v People, 18 NY 128 , 138; People ex rel. Battista v Christian, 249 NY 314 , 319.) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v Christian (supra), the court ruled that an information charging a defendant with an 'infamous’ crime was a nullity, despite defendant’s consent, where the State Constitution provided that infamous crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below” (emphasis supplied).
The Patterson exception is, by definition of the Court, narrow in application. Defendants here attempt to apply it broadly, in a fashion not contemplated by this Court. The Patterson Court’s description of the exception clarifies that the rule goes to the general and over-all procedure of the trial, forbidding alteration of mandated procedural, structural, and process-oriented standards. The examples set forth by Patterson— changing of the burden of proof, consent to less than a 12-
We also note that concerns that defendants’ rights are diminished by the holding here are misplaced. It should be emphasized that even where defendants have failed to adequately preserve claims for appellate review, they may request that the Appellate Divisions apply their "interest of justice” jurisdiction under CPL 470.15 (3). Nothing we hold here intrudes upon that jurisdiction.
We turn now to the specific cases before us.
People v Gray
Defendant was convicted of criminal possession of a controlled substance in the fourth degree. The Appellate Division, although not detailing the facts, concluded that the evidence did not support the conclusion that he had knowledge of the weight of the controlled substance ( 204 AD2d 35 ). It relied on People v Kilpatrick ( 143 AD2d 1 , 3, supra) in determining that no preservation was necessary.
Leave to appeal was granted by a Judge of this Court.
We reverse and remit to the Appellate Division.
People v Gordon
Defendant was convicted of criminal possession of a controlled substance in the fifth degree after a jury trial. The Appellate Division modified the judgment, on the law, by reducing the conviction to criminal possession of a controlled substance in the seventh degree ( 204 AD2d 22 ). Sua sponte, leave to appeal to this Court was granted by one of the two dissenting Justices.
In reducing the verdict, the Appellate Division concluded that despite the absence of a specific objection to the lack of evidence of knowledge of weight, the issue was preserved as determined in People v Kilpatrick ( 143 AD2d 1 , supra). The Appellate Division concluded that there was no evidence of knowledge of weight and that People v Ryan had to be retrospectively applied.
Justice Sullivan concurred in the order. While he stated that preservation of the issue of knowledge of weight was necessary, he concluded that the issue of scienter had been given to the jury in two supplemental instructions that the cocaine was " 'knowingly and unlawfully possessed by the defendant in a weight of five hundred milligrams or more’ ” and that the defendant " 'knowingly and unlawfully possessed an amount of cocaine in excess of 500 milligrams.’ ” ( 204 AD2d 22 , 23.) He further concluded that the evidence was insufficient to support a jury verdict that defendant had knowledge of the weight of the substance.
Justice Asch dissented. He agreed that the scienter requirement was properly charged to the jury. He concluded, however, that defendant’s knowledge of the weight could be found in the number of vials and in the weight of almost three times the threshold required.
Because there was no preservation, we reverse and remit to the Appellate Division.
People v Cooper
Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division modified the judgment by reducing the conviction to criminal possession of a controlled substance in the seventh degree ( 204 AD2d 24 ).
The evidence was that when a police officer observed the defendant knotting a plastic bag, she volunteered that the white powder was cocaine which she had bought for $40. The expert testimony was that there were 28 grains consisting of 1,814 milligrams which was 62.3% pure cocaine.
Justice Asch dissented. He interpreted Kilpatrick to mean that the Appellate Division could review an issue in the absence of preservation where the claim was that the evidence was insufficient in light of the charge to the jury. He, thus, would have affirmed the conviction. The dissenting Justice, sua sponte, granted leave to appeal to this Court.
We reverse and remit to the Appellate Division.
People v Ivey
Defendant was convicted, following a jury trial, of criminal possession of a controlled substance in the second degree. The evidence was that he had possessed a substance of an aggregate weight of more than two ounces of cocaine. The Appellate Division affirmed ( 204 AD2d 16 ). Justice Sullivan, writing for the majority, noted that prior to People v Ryan, trial and intermediate appellate courts, as well as prosecutors and defense attorneys, had relied on the fact that no scienter requirement existed with respect to the weight element of a drug possession charge. Citing People v Dekle ( 56 NY2d 835 , 837, supra), the Court noted that where there was no objection to the charge for failure to include the issue of scienter, the issue was not preserved. The majority also interpreted Kilpatrick to permit review of the sufficiency of the evidence only in light of the charge to the jury.
Two Justices concurred in the result in an opinion written by Justice Ellerin. While they concluded that Kilpatrick made it unnecessary to preserve the scienter issue, they found knowledge of the weight in the defendant’s handling of a substance which weighed almost four ounces. Leave to appeal was granted by the concurring Justice Rosenberger.
People v Barnes
Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed, with two Justices dissenting ( 204 AD2d 33 ). Leave to appeal to this Court was granted, sua sponte, by Justice Rosenberger, one of the dissenting Justices.
The facts indicate that the police were given a tip by a passerby that "a young black kid” was on the street, near 41st Street and Eighth Avenue in Manhattan, selling drugs. When the police approached the youth, he threw a bag to the ground which turned out to contain 22 vials with 887 milligrams of pure crack cocaine. Defendant was arrested as he tried to run away.
The Appellate Division relied on People v Ivey (supra) and concluded that the Ryan issue had not been preserved. In dissent Justice Rosenberger relied on Kilpatrick to conclude that the issue of knowledge of weight had been preserved. He concluded further that the People had failed to prove that the defendant had knowledge of the weight of the drugs. Noting that "[t]he difference between misdemeanor weight and the amount of cocaine possessed by the defendant was .01365 ounce” (204 AD2d, at 35), Justice Rosenberger determined that the amount was too small to determine weight from mere handling. In a separate dissent, Justice Tom relied on Kilpatrick in concluding that the issue was preserved. He also relied on People v Cooper (supra) and determined that People v Ryan was retroactive.
We affirm.
People v Tejada
Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fourth degree. The Appellate Division affirmed ( 204 AD2d 30 ). Leave to appeal was granted, sua sponte, by Justice Tom, one of the dissenting Justices.
The facts, as related in the dissent, indicate that a gypsy cab was stopped near University Avenue and Hall of Fame Terrace in the County of Bronx, New York City, after it went through a red light. Prior to the stop and after it had gone through the light, the cab picked up two passengers. When the officers approached the cab, one of the two passengers sitting in the back attempted to slide a zippered pouch to the other. The other passenger put the pouch on the floor and attempted to kick it towards the front seat. A police officer retrieved the pouch and found foil packets which later were proved to
The majority relied on People v Ivey (supra) in affirming the conviction. In a dissent which Justice Wallach joined, Justice Tom relied on his partial dissent in People v Barnes.
We affirm.
Accordingly, in People v Gray, People v Cooper, and People v Gordon, the order of the Appellate Division in each case should be reversed and the case remitted to the Appellate Division, First Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b). In People v Ivey, People v Barnes and People v Tejada, the order of the Appellate Division in each case should be affirmed.
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.
In People v Gray, Cooper and Gordon: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.
In People v Ivey, Barnes and Tejada: Order affirmed.
Cases cited
- People v. Ryan 82 NY2d 497 p. 13, p. 14, p. 15, p. 16, p. 17, p. 18
- People v. Dekle 56 NY2d 835 at 837 p. 13, p. 15, p. 16, p. 18, p. 19, p. 24
- People v. Cipolla 6 NY2d 922 p. 13, p. 16
- People v. Gomez 67 NY2d 843 p. 13, p. 14, p. 15, p. 16, p. 17
- People v. Velasquez 76 NY2d 905 p. 13, p. 14, p. 16, p. 17, p. 18
- People v. Logan 74 NY2d 859 p. 13, p. 14, p. 17
- People v. Bynum 70 NY2d 858 at 859 p. 13, p. 14, p. 15, p. 17, p. 18, p. 20
- People v. Chaitin 61 NY2d 683 p. 13, p. 14, p. 17
- People v. Darragh 141 App Div 408 p. 13
- Lapier v. Gonyo 203 NY 527 p. 13
- People v. Turley 153 App Div 671 p. 13
- People v. Blake 193 NY 616 p. 13
- People v. Blacknall 63 NY2d 912 p. 13, p. 16, p. 17
- People v. Favor 82 NY2d 254 p. 13, p. 14, p. 16, p. 17
- People v. Mitchell 80 NY2d 519 p. 13, p. 14, p. 16, p. 17
- Griffith v. Kentucky 479 US 314 p. 13, p. 16, p. 17
- Gurnee v. Aetna Life & Casualty Co. 55 NY2d 184 p. 13, p. 14, p. 16, p. 17
- People v. Kaplan 76 NY2d 140 p. 13, p. 16, p. 17
- People v. Reisman 29 NY2d 278 p. 13, p. 14, p. 16, p. 17
- People v. Sprowal 84 NY2d 113 p. 13, p. 16
- People v. Leyva 38 NY2d 160 p. 13
- Leary v. United States 395 US 6 p. 13
- Tot v. United States 319 US 463 p. 13
- People v. Scarborough 49 NY2d 364 p. 13, p. 14, p. 17
- Osborne v. Ohio 495 US 103 p. 14
- People v. McLaurin 157 Misc 2d 783 p. 14
- People v. Vientos 79 NY2d 771 p. 14, p. 17
- People v. Velasquez 151 AD2d 159 p. 14, p. 17
- People of State of New York v. Grega 72 NY2d 489 p. 14, p. 17
- People v. Colavito 70 NY2d 996 p. 14, p. 17
- People v. Kennedy 68 NY2d 569 p. 14, p. 17
- People v. Ryan 184 AD2d 24 p. 14
- People v. Pepper 53 NY2d 213 p. 14, p. 17
- People v. Morales 37 NY2d 262 p. 14
- Desist v. United States 394 US 244 p. 14
- People v. Wallens 297 NY 57 p. 15, p. 17
- People v. Patterson 39 NY2d 288 at 295 p. 15, p. 17, p. 18, p. 21
- People v. Steele 26 NY2d 526 p. 15, p. 17
- People v. Williams 62 NY2d 765 p. 15
- Jackson v. Virginia 443 US 307 p. 15, p. 16, p. 17, p. 18
- People v. Acosta 80 NY2d 665 p. 15
- People v. Tejeda 73 NY2d 958 p. 15
- People v. Carter 63 NY2d 530 p. 15
- People v. Malizia 62 NY2d 755 p. 15
- People v. Contes 60 NY2d 620 p. 15
- People v. Lewis 64 NY2d 1111 p. 15
- People v. Benzinger 36 NY2d 29 p. 15
- People v. Steinberg 79 NY2d 673 p. 15
- People v. Bleakley 69 NY2d 490 p. 15, p. 17, p. 18
- People v. Walker 81 NY2d 661 p. 15
- People v. Williams 66 NY2d 629 p. 15
- Arcara v. Cloud Books, Inc. 478 US 697 p. 15
- People v. Thompson 60 NY2d 513 p. 15
- People v. Anderson 66 NY2d 529 p. 15
- People v. Barber 289 NY 378 p. 15
- People v. Briggins 50 NY2d 302 p. 16
- People v. Wrieden 299 NY 425 p. 16
- People v. McCarthy 250 NY 358 p. 16
- People v. Ledwon 153 NY 10 p. 16
- People v. Bennett 49 NY 137 p. 16
- People v. Drislane 8 NY2d 67 p. 16
- People v. Robinson 36 NY2d 224 p. 16, p. 18
- Wilke v. People 53 NY 525 p. 16
- Johnson v. People 55 NY 512 p. 16
- Wood v. People 53 NY 511 p. 16
- People v. Antommarchi 80 NY2d 247 p. 16, p. 17
- People v. Nixon 248 NY 182 p. 17
- People v. Abdullah 164 AD2d 260 p. 17
- People v. Mendoza 81 NY2d 963 p. 17
- People v. Thomas 36 NY2d 514 p. 17
- People v. Chipp 75 NY2d 327 p. 18
- People v. Bamberg 51 NY2d 868 p. 18
- People v. Alfinito 16 NY2d 181 p. 18
- People v. Smith 63 NY2d 41 p. 18
- People v. Davis 43 NY2d 17 p. 18
- People v. Crum 272 NY 348 p. 18
- People v. McLucas 15 NY2d 167 p. 18
- Smith v. United States 360 US 1 p. 18
- People v. Foy 32 NY2d 473 p. 18
- People v. Spadafora 131 AD2d 40 p. 18
- County Court v. Allen 442 US 140 p. 18
- People v. James 111 AD2d 254 p. 18
- People v. Martin 50 NY2d 1029 p. 18
- People v. Kilpatrick 143 AD2d 1 at 2-3, at 3 p. 18, p. 19, p. 22, p. 23, p. 24
- People v. Lawrence 64 NY2d 200 p. 18
- People v. Bonaparte 78 NY2d 26 p. 18
- People v. Mehmedi 69 NY2d 759 p. 18
- People v. Creech 60 NY2d 895 p. 18
- People v. Cona 49 NY2d 26 at 33 p. 19
- People v. Hill 85 NY2d 256 at 259 p. 19
- People v. Stahl 53 NY2d 1048 at 1050 p. 20
- People v. Narayan 54 NY2d 106 p. 20
- Patterson v. New York 432 US 197 p. 21
- Cancemi v. People 18 NY 128 at 138 p. 21
- People ex rel. Battista v. Christian 249 NY 314 at 319 p. 21
- People v. Thomas 50 NY2d 467 at 472 p. 22
- People v. Gordon 204 AD2d 22 at 23 p. 22, p. 23
- People v. Cooper 204 AD2d 24 p. 23
- People v. Ivey 204 AD2d 16 p. 24
- People v. Barnes 204 AD2d 33 p. 25
- People v. Tejada 204 AD2d 30 p. 25