As discussed in our Feb. 1, 2006 New York Law Journal column, the fact that a losing party may take an appeal from a judgment or order to the Court of Appeals, either as of right or by permission, does not guarantee review of every adverse ruling sought to be challenged.¹ The concepts of "appealability" and "reviewability" are different, especially in Court of Appeals practice.

Appealability relates to "whether or not, and under what circumstances and in what manner, whether as of right or by permission, an appeal may be taken to the Court of Appeals."² Reviewability relates to "what issues, of law, fact, or discretion, are open for review in the Court of Appeals after the appeal is properly lodged there."³

This month, we examine People v. Baumann & Sons Buses, Inc.,⁴ in which a single Judge of the Court of Appeals granted the appellant's motion for leave to appeal to the Court of Appeals (see N.Y. Criminal Procedure Law [CPL] 460.20), thereby satisfying the appealability criterion. The Court subsequently denied the respondent's motion to dismiss the appeal for lack of jurisdiction, but after full briefing and argument by the parties, the Court dismissed the appeal on the ground that the issue raised was not preserved for review. Baumann involved a challenge to the constitutionality of an anti-noise statute that was not raised before the trial court and, thus, was beyond the Court of Appeals' review power. Though Baumann was a criminal case, its core holding on the preservation requirement is transferable to civil cases.

By way of background, the Appellate Division and Appellate Term review questions of law and questions of fact, including exercises of discretion. These intermediate appellate courts possess interest of justice jurisdiction to review unpreserved legal error that deprived the defendant of a fair trial. In contrast, as stated in Baumann, the Court of Appeals lacks interest of justice jurisdiction, and with few exceptions, only reviews questions of law that have been properly preserved for review in the lower court:

Although the intermediate appellate courts have broad power to review questions of fact, as well as broad discretionary powers (see CPL 470.15), this Court, as a court of limited jurisdiction, may, with few exceptions, consider only questions of law (see N.Y. Const, art VI, §3[a]; see also CPL 470.35). A "question of law with respect to a ruling...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 at any subsequent time when the court had an opportunity of effectively changing the same" (CPL 470.05[2]). Thus, only questions that "have been properly preserved for review by appropriate motion or objection in the court of first instance[ ] may be brought before the Court of Appeals (Karger, Powers of the New York Court of Appeals §1:3, at 9 [3d ed rev]).⁵

Mr. Baumann was charged with violating Islip Town Code §35-3(D), which prohibits unreasonable engine noise. Section 35-3(D) classifies as a violation the "operation, including the stationary idling, of any engine, including, but not limited to, an automobile, truck, motorcycle, motorbike, motorboat or minibike engine, so as to create a noise disturbance." A "noise disturbance" is defined as "[t]hat level of sound which...[a]nnoys or disturbs a reasonable person of normal auditory sensitivities" (§35-2[A]). The accusatory instrument alleged that at a specific time and place, the continuous running of Mr. Baumann's bus engines "annoyed and disturbed the undersigned complainant, a reasonable person of normal auditory sensitivities, i.e., a person of average tolerance, without any hearing enhancement or impairment."

After a nonjury trial, the district court found Mr. Baumann guilty, concluding that the People had proved beyond a reasonable doubt that on the date in question, defendant continuously operated approximately 50 bus engines for several hours beginning at 5:30 a.m. The court further found that the operation of these engines was audible beyond the real property where it originated and thereby disturbed the individual named complainant.

The Appellate Term reversed the judgment of conviction "on the law" and dismissed the information, holding that "[i]t is well-settled that anti-noise statutes are designed to prevent those noises which are of such a pitch as to constitute a public nuisance and a wrong against the community, and are therefore the proper subject of public prosecution. These statutes are reserved for situations that go beyond the concern of the individual to a point where they become a potential or an immediate public problem."⁶ The court noted that the accusatory instrument alleged that Mr. Baumann's bus engines created an unreasonable noise, in that the noise disturbed "the complainant" (singular) on private property, but "it failed to allege the public nature of the nuisance."⁷ This omission in the accusatory instrument, the Appellate Term held, rendered it facially insufficient and required its dismissal.

As noted, a single Judge of the Court of Appeals granted the appellant's motion for leave to appeal to the Court of Appeals.⁸ The Court subsequently denied the respondent's motion to dismiss the appeal for lack of jurisdiction.⁹ The jurisdictional issue resurfaced on full briefing and argument by the parties, however, and the appeal was ultimately dismissed.

At the outset, the Court of Appeals noted that the Appellate Term reversed the conviction on the basis of an unpreserved error since Mr. Baumann's appeal to the Appellate Term called into question the validity of the Islip ordinance, which had not been challenged before the trial court:

As both parties acknowledge, the validity of the Islip ordinance was not challenged before the trial court. Accordingly, the issue whether an anti-noise statute requires an element of public nuisance--as the Appellate Term concluded--is unpreserved for our review. Although the Appellate Term recited that its reversal was on the law, that court necessarily decided the unpreserved issue within its interest-of-justice jurisdiction. As the intermediate appellate court reversed the conviction on the basis of an unpreserved error, and therefore as a matter of discretion in the interest of justice, its order is not appealable to this Court.¹⁰

To avoid this preservation problem, the People pointed out that a claim that an accusatory instrument is facially insufficient presents a jurisdictional question exempt from the requirement of preservation.¹¹ While acknowledging the correctness of this point, the Court noted that "the alleged error involved not a claim that the information failed to set forth factual allegations sufficient to establish any particular element of the charged anti-noise offense as set forth in the Islip Town Code, but rather that an anti-noise statute must contain an additional element neither found in the text of the ordinance nor previously read into the statute by a construing court."¹²

As noted, the Islip ordinance proscribed sound that annoys or disturbs "a" reasonable person of normal auditory sensitivities. The information alleged that Mr. Baumann's continuous running of his bus engines annoyed and disturbed "the undersigned complainant, a reasonable person of normal auditory sensitivities." This information, the Court of Appeals held, contained allegations sufficient to establish, if true, every element of the offense as defined in the Islip ordinance.

Mr. Baumann argued at the intermediate appellate level that an additional element should be read into the Islip ordinance, namely, that the noise went "beyond the concern of the individual to a point where [it became] a potential or an immediate public problem." The trial court was never asked to rule on the existence of this proposed additional "public nuisance" element. The Appellate Term considered this unpreserved issue in the exercise of its interest of justice jurisdiction, and in dismissing the accusatory instrument as "defective," the court engrafted a "public nuisance" element into the Islip ordinance. As the Court of Appeals noted, "[A]ssuming that such a requirement exists, it arises not from the ordinance as adopted by the Islip Town Board, but from this Court's precedent suggesting that an anti-noise statute proscribing merely private disputes may be unconstitutionally vague."¹³

Unpreserved Constitutional Question.

The Court of Appeals will not review a constitutional question that was not initially properly raised in the court of first instance, even though such question may have been raised in the intermediate appellate court. Once the Court of Appeals characterized the issue relating to the existence of a "public nuisance" element in an anti-noise statute as an unpreserved constitutional question, dismissal of the People's appeal necessarily followed:

A challenge to the constitutionality of a statute must be preserved. This requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt. Moreover, while courts must construe statutes so as to preserve their constitutionality whenever possible, an appellate court is not required to undertake such a construction when no constitutional issue has been raised below. For this Court to consider a constitutional claim in the guise of an argument that the accusatory instrument is facially insufficient would permit an end run around the parties' obligation to preserve constitutional claims before the trial court. Thus, despite our denial of defendant's previous motion to dismiss the appeal, after full briefing and argument by the parties we conclude that dismissal is required.¹⁴

Accordingly, the Court dismissed the appeal on the ground that the reversal by the Appellate Term was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90[2][a]).

Baumann's lesson is clear: In deciding whether to pursue an appeal to the Court of Appeals, the would-be appellant must consider not only whether the appeal may be taken, either as of right or by permission (i.e., the concept of appealability), but also whether the issues sought to be raised are open for review in the Court of Appeals (i.e., the concept of reviewability). Failure to consider the latter concept may result in a Pyrrhic victory after the Court is constrained to dismiss the appeal based upon unpreserved errors that are beyond its power to review.

1. See T. Newman and S. Ahmuty, Court of Appeals Review of Fact Questions, NYLJ Feb. 1, 2006, pp. 1, 7.
2. See Arthur Karger, "The Powers of the New York Court of Appeals," (3rd ed. [rev.] 2005), p.4.
3. Id.
4. -- NY3d--, 2006 WL 721507 (2006 Slip Op. 02234) (March 23, 2006).
5. Id. at *1.
6. 7 Misc.3d 128 (App. Tm., 2d Dept., 2005).
7. Id.
8. See 5 N.Y.3d 785 (2005).
9. See 6 N.Y.3d 771 (2006).
10. -- NY3d at --, 2006 WL 721507 at *1 (internal citations omitted).
11. See People v. Alejandro, 70 N.Y.2d 133 (1987).
12. -- NY3d at--, 2006 WL 721507 at *1 (internal citations omitted).
13. Id. at *2 (internal citations omitted).
14. Id. (internal citations omitted).

Thomas R. Newman is of counsel to Duane Morris and author of New York Appellate Practice (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.