People v. Davis

Appellate Division of the Supreme Court of New York, Fourth Department · 2025 · Criminal Law

Criminal LawSelective ProsecutionPreservationLegal SufficiencyTrial Order of DismissalAppellate Procedureselective prosecutionpreservation

Facts

Defendant was convicted after a bench trial of criminal possession of a weapon in the third degree under Penal Law § 265.02 (8). On appeal, he argued that he had been selectively prosecuted and that the evidence was legally insufficient. At the close of the People's proof, defendant moved for a trial order of dismissal, and County Court reserved decision. Defendant renewed the motion at the close of his proof, but the court never ruled on it and later rendered a guilty verdict.

Issue

Whether defendant's selective prosecution claim was preserved for appellate review, and whether the Appellate Division could review his legal sufficiency challenge when County Court never ruled on his trial order of dismissal motion. Also, what procedural remedy was appropriate given the unresolved motion.

Rule

A claim of selective prosecution is unpreserved for appellate review if the defendant fails to make a pretrial motion to dismiss on that ground. Where a trial court reserves decision on a trial order of dismissal motion and never rules on it, an appellate court cannot treat that omission as a denial and therefore cannot review the defendant's legal sufficiency challenge; instead, the proper course is to hold the case, reserve decision, and remit for a ruling on the motion.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Buffalo, Marcus Hale was charged with felony drug possession. He went to a bench trial without filing any pretrial motions, was convicted, and then argued on appeal that prosecutors charged him because he had publicly criticized the district attorney's office.

How should the appellate court treat Marcus's selective prosecution argument?

Explanation. The governing rule is that a selective prosecution claim is unpreserved for appellate review unless the defendant made a pretrial motion to dismiss on that ground. Raising the issue only after conviction does not preserve it.