Page 15 - Court of Appeal and Appellate Practice

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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S15

tive instructions when the objections were for a mistrial (if proper) and a curative instruc- Jury Deliberations. When the jury is inal- preserved “either because they were raised

sustained, and did not make a timely motion tion (if the mistrial motion is denied).17 If a ly sent to deliberate, much of counsel’s job is in the post-trial motion or during trial.”29 But
for a mistrial based upon the speciic grounds curative instruction is insuficient, counsel simply to wait around for the verdict. But not in Leonard v. Unisys, the Third Department
asserted on appeal.”12
should say so on the record.18
always. The jury might give some indication held that the defendants had waived any
Evidence. Similar principles apply to What if one’s own evidence is excluded? that its deliberations are not being conducted request for a new trial by their “failure to
evidentiary objections. To preserve those, In that case, counsel should make what is properly—another potential ground for an preserve the issue by posttrial motion to set
a party must make a “timely,” speciic objec- called an “offer of proof”—a presentation of appeal.
aside the verdict.”30 To be cautious, make the
tion.13 Once again, that usually means object- the evidence outside of the presence of the For example, a new trial may be granted motion.
ing immediately when the opposing party jury to “demonstrate [its] relevance.”19 Offers where the jury’s deliberations were affected By now, the theme should be obvious.
seeks to introduce the evidence deemed to of proof “must be made clearly and without
by “improper extraneous information or out-
When an error occurs, counsel should

be improper.
object right away, object
In some (but not all) states, the denial of clearly, and secure a rul-
a pretrial motion to exclude evidence is suf- ing. Preservation is not An objection is not always enough. If a comment is
icient to preserve the error for appeal, even rocket science, but it does
if counsel fails to object when the evidence require vigilance, attention —that is, if it was made in “bad faith”
is introduced at trial. In New York, the issue to detail, and a willingness particularly egregious
is unclear; the appellate courts do not seem to be a bit of a pest—often
to have ruled on the question of whether the under circumstances where or causes “undue prejudice”—the objecting party should also

denial of a motion in limine is suficient to counsel feels natural pres- move for a mistrial.
preserve error in the absence of a contempo- sure to appear genial and
raneous objection. Therefore, counsel should cooperative. No lawyer
object to purportedly improper evidence at wants to tell a judge that
trial even if he has already unsuccessfully his ruling is erroneous, or to insist on articu- ambiguity ., leaving no room for debate side inluence”—that is, by facts outside the
moved in limine to exclude that evidence. And lating an objection the judge has indicated he about what was intended.”20 Again, the best record.23 Sometimes, a jury will send a note to
if a motion in limine has been granted with does not wish to entertain. For this reason, practice is to be as thorough as possible.
the court asking for information or explaining
respect to a particular category of evidence, it is often quite helpful to have a dedicated Jury Instructions. Jury instructions may the status of deliberations. Such notes can
counsel must be vigilant about policing that member of the trial team—a “legal issues law- be the most important aspect of appellate often be a powerful indicator of whether the

ruling. If the other side introduces evidence yer”—assigned to handle preservation. That preservation. Errors in instructions can be jurors are playing by the rules and limiting
that was excluded prior to the trial, and no way, trial counsel can concentrate on build- a very fertile ground for appeal, but they are their consideration to the facts in front of
contemporaneous objection is lodged, the ing a rapport with the judge and jury (and also easy to accidentally waive.
them. If the jury sends a note, make sure that
error is not preserved.
attempting to win the trial!), while appellate The irst rule is to make written requests the note is read, and responded to, in open
Sometimes, counsel can rely on a “con- counsel is busy making sure that everything for all of the jury instructions that counsel court.24 And if there has been foul play, object
tinuing” objection to a particular category is in place for appeal—in case the effort is
believes are required.21 Make sure these and move for a mistrial before the verdict is
of evidence. New York courts have noted unsuccessful.
instructions are correct in all respects. Oth- delivered; do not wait to see what the jury
that continuing objections may, in certain erwise, even if the trial court erred in failing decides.25
circumstances, eliminate the need to make •••••••••••••••••••••••••••••
to give a portion of a proposed instruction, Motions for Judgment as a Matter of

repeated objections to similar evidence,14 but 1. People v. Casanova, 62 A.D.3d 88, 91 (1st Dep’t 2009). that error may not be reversible on appeal. Law. Finally, a few notes about dispositive
that they are sometimes “ill-advised.”15 Con- 2. People v. Martin, 50 N.Y.2d 1029, 1031 (1980).
3. Casanova, 62 A.D.3d at 91.
Counsel should carefully divide up the pro- motions. There is technically no requirement
tinuing objections are helpful only if (1) the 4. People v. Hopkins, 76 N.Y.2d 872, 873 (1990).
posed instructions so that the trial court has in the CPLR that a party may only move for
court expressly rules on them in advance, and 5. People v. Butler, 214 A.D.2d 1014, 1015 (4th Dep’t 1995).
to issue a ruling on each component. If appro- judgment notwithstanding the verdict after
(2) they are very well deined. It is dangerous 6. Gamell v. Mt. Sinai Hosp., 40 A.D.2d 1010, 1011 (2d priate, offer alternative forms of the same trial if he irst moves for directed verdict at
to depend on a continuing objection if there Dep’t 1972).
instruction, in case the trial court rejects a the close of the opposing party’s evidence.26
is any ambiguity about whether a particular 7. People v. Foster, 100 A.D.2d 200, 204 (2d Dep’t 1984). 8. People v. Hampton, 73 A.D.3d 442, 444 (1st Dep’t 2010). more aggressive form.
In fact, the CPLR was intended to “abolish[]
exhibit or line of testimony falls within the 9. See Cattano v. Metro St. Ry., 173 N.Y. 565, 572 (1903). In addition to proposing instructions, coun- that notion.”27 Nonetheless, some courts con-
10. People v. Melendez, 178 A.D.2d 366, 367 (1st Dep’t 1991).
original objection. If so, object again.
11. See People v. Canty, 228 A.D.2d 245, 245 (1st Dep’t 1996). sel should object to the trial court’s instruc- tinue to apply this requirement. In Hurley v.
Once the court has ruled on an evidentiary 12. 288 A.D.2d 323, 324 (2d Dep’t 2001).
13. Warren v. N.Y. Presbyterian Hosp., 88 A.D.3d 591, tions as given to the extent that they deviate Cavitolo, for example, the Second Department
objection, counsel is faced with more choices. 592 (1st Dep’t 2011).
from the proposed version. “No party may held that “[b]y failing to move for a direct-
If the objection is overruled, counsel should 14. See Kulak v. Nationwide Mut. Ins., 40 N.Y.2d 140, assign as error the giving or the failure to ed verdict” on an issue at the close of the
(if necessary) ask for a limiting instruction 145 (1976).
give an instruction unless he objects thereto opponent’s evidence, “the plaintiff implicitly
deining the contours by which the jury may 15. People v. Santarelli, 49 N.Y.2d 241, 253 (1980).
before the jury retires to consider its verdict conceded that the issue was for the trier of
consider the evidence.16 For example, if evi- 16. See, e.g., People v. Williams, 50 N.Y.2d 996, 998 (1980). 17. See People v. Harvin, 254 A.D.2d 29, 2930 (1st Dep’t
stating the matter to which he objects and fact,” thus barring the party from arguing on
dence has been admitted solely to prove a 1998).
the grounds of his objection.”22 The best time appeal that she was entitled to judgment as
defendant’s state of mind, the jury should 18. See People v. Santiago, 52 N.Y.2d 865, 866 (1981). to do this is in a charge conference on the a matter of law.28 To be cautious, make both
19. People v. Billups, 132 A.D.2d 612, 613 (2d Dep’t 1987).
be told that it cannot be considered for any 20. People v. Greany, 185 A.D.2d 376, 37778 (3d Dep’t 1992). 21. See CPLR §4110b.
record but outside the presence of the jury— motions.
other purpose, and it is up to the defendant’s 22. Id. (emphasis added).
which counsel should request if the trial court It is also unclear whether New York law
counsel to secure that instruction.
23. People v. Redd, 164 A.D.2d 34, 39 (1st Dep’t 1990). does not schedule one on its own. If the trial requires a party to make a motion for new trial
If the court sustains an objection to a piece 24. See Emp’rs Mut. Liab. Ins. of Wis. V. Di Cesare &
court refuses to conduct a charge conference in order to preserve a claim for that relief on
of evidence, counsel’s job is not necessar- Monaco Concrete Constr., 9 A.D 379, 385 (1st Dep’t 1959). on the record, counsel should object to the appeal. In Huff v. Rodriguez, for example, the
ily done. The jury may very well have been 25. See Reilly v. Wright, 55 A.D.2d 544, 545 (1st Dep’t 1976). 26. See CPLR §4404.
procedure and should ile a set of written Fourth Department rejected the defendants’
prejudiced by the evidence despite being 27. Commentary to CPLR § 4404, at C4404:1.
objections memorializing any objections and argument that the plaintiff had waived cer-
told to disregard it. If so, as with opening 28. 239 A.D.2d 559, 559 (2d Dep’t 1997).
rulings that were made at an off-the-record tain arguments by failing to raise them in her
and closing statements, counsel should ask
29. 64 A.D.3d 1221, 1222 (4th Dep’t 2009) (emphasis added). charge conference.
motion for new trial, holding that they were
30. 238 A.D.2d 747, 751 (3d Dep’t 1997).

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