People v. Hoke

Memorandum.

The appeal should be dismissed.

Although the Appellate Division order states that reversal of defendant’s conviction was on the law, the opinion reveals that it was in fact based upon an exercise of discretion. After the trial court had denied defendant’s requested alibi charge and, in its place, given a different alibi charge, defendant did not specify why the charge as given was inadequate. Thus, while there was preservation as to the court’s refusal to charge in accordance with defendant’s request, there was no preservation with respect to error in the alibi charge as given. The Appellate Division reversal was not grounded in the failure to charge as requested, but in its conclusion that the trial court’s alibi instructions as given were burden-shifting. Accordingly, its determination rested on an exercise of its interest of justice jurisdiction, and does not satisfy the jurisdictional predicate for review by this court (CPL 450.90, subd 2). (See People v Dercole, 52 NY2d 956.)

Far from carrying “the concept of preservation much too far” (dissent, at p 1024), the requirement of specific objection in these circumstances serves a salutary purpose. Defense counsel, having heard the charge as given and knowing best how it fails to satisfy his request, by objection at that point gives the court the opportunity to correct any error.