Factual background: Finch was an invited guest of Bradley, a leaseholding tenant at a federally subsidized housing project, with whom Finch had a child.  The police knew this, but arrested Finch for criminal trespass anyway; upset, Finch resisted and was charged with not only trespass but resisting arrest.  A jury convicted Finch of both charges.  On appeal to the County Court, the trespass charges were reversed and dismissed since, as an invited guest of a tenant with a lease, Finch could not be guilty of trespass.  The County Court left the resisting arrest charge undisturbed, since the officer, in its view, had probable cause to arrest.  At arraignment, the defense lawyer had specifically moved to dismiss since the trespass charge, in light of Finch’s status as an invited guest of a lease-holding tenant, could not be sustained.  The court specifically rejected this argument, explaining that the law was otherwise.  At the ensuing trial, counsel did not renew this argument in the form of a motion for a trial order of dismissal.

 

Issues before the Court: (1) Whether, “where a criminal defendant has unsuccessfully argued before trial that the facts alleged by the People do not constitute the crime charged, and the court has rejected the argument, defendant need not specifically repeat the argument in a trial motion to dismiss in order to preserve the point for appeal.”  (2) Whether the trial evidence was insufficient to establish resisting arrest, the only remaining court.

 

The Court held: (1) Where the court “definitively” rejected the sufficiency argument prior to trial, the defendant need not repeat his argument during trial in order for the issue to be preserved.  (2) The evidence was not only insufficient to establish resisting arrest, but defendant was “factually innocent” of the crime.

 

CAL Observes: The Court split 4 to 3, with Judge Smith writing for the majority (including Judges Lippman, Rivera, and Pigott), and Judge Abdus-Salaam (joined by Judges Graffeo and Read [who also separately dissented]) penning the dissent.  The split was on the preservation question; the dissent did not reach the merits.  (1)Viewed in its purist form, the majority holding is unexceptional even if the factual scenario underlying the preservation issue is unique.  What is striking is the vitriolic nature of Judge Abdus-Salaam’s dissent.  (Judge Read’s “concurring dissent” reflects profound disappointment rather than vitriol.)  While Judge Smith’s opinion is written in his customary wry tone, Judge Abdus-Salaam’s language reflects outright hostility.  Apparently, there is a sharp schism on the Court, reflected now in this split opinion, on the matter of preservation.  The 7 judges are in two camps: the preservation “realists,” on the one hand, and the preservation “ritualists” on the other.  The realists believe that the preservation rules, while valuable, should serve the ends of justice, while the ritualists view them almost as an end in themselves.  That Judge Smith is in the forefront of the preservation realists should come as no surprise to the close followers of his opinions in criminal cases.  On the other hand, the invective flowing from Judge Abdus-Salaam’s opinion appears uncharacteristic – for her and even for Judge Lippman’s post-Kaye-Court de-emphasis on consensus and civility in its opinions.  (2) The majority opinion, perhaps, reflects the judges’ realization of the disconnect between New York’s stringent preservation rules and the reality that all but the most skilled criminal trial defense practitioners are simply unable to navigate the niceties of this State’s complex preservation requirements.  Trial public defense offices, in particular, do not hire young attorneys based on the promise they show in mastering the art of preserving the record.  Nor do trial advocacy training sessions integrate the preservation aspect into their line of instruction.  And, obviously, “The Art of Preserving the Record” is not a class taught in law school, even at the clinical level.  (3) One interesting assertion in Judge Abdus-Salaam’s dissent is that a defendant with a colorable claim of actual innocence, but saddled with an unpreserved sufficiency claim, can rely on the Appellate Division, with its interest of justice jurisdiction, to intervene to prevent a wrongful conviction.  This assertion no doubt caused some bewilderment amongst defense attorneys with active intermediate appellate court practices, leading them to raise some bemused eyebrows.  Judge Smith’s response, that “procedural rules should be so designed as to keep unjust results to a minimum,” was characteristically restrained.