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Muldoon article featured in Law Review

Gary Muldoon

A recent issue of Buffalo Law Review features an article by a Rochester attorney on a criminal law topic. “Understanding New York’s ‘Mode of Proceedings’ Muddle,” by Gary Muldoon, explores a doctrine that is unique to New York state. The issue is one that may be raised in a state court criminal appeal.

Under the “mode of proceedings” doctrine, certain issues that were unpreserved in the trial court may be raised on appeal, despite the lack of preservation. And the issue may be reversible, despite the absence of prejudice. Caselaw holds that the types of error within that class are by their nature prejudicial.

Mode of proceedings was first recognized in an 1858 murder trial, which used a 11-person jury. The Court of Appeals found such a procedure to be an error affecting “the organization of the court or mode of proceedings prescribed by law.” The doctrine was revived over a century later, in 1976, in People v. Patterson.

Perhaps the most frequent “mode” error arises where the trial judge, in addressing jury questions, fails to follow the Criminal Procedure Law in including attorneys before formulating a response to the jury — what is sometimes called O’Rama error.

Muldoon’s article identifies nine areas where the Court of Appeals has recognized mode of proceedings error. The law review article points out that the issue that was the genesis of the doctrine, an 11-person jury, was overruled in 2007, in People v. Gajadhar — also a murder trial.

According to the article, “mode of proceedings” is also important because of the jurisdiction of the Court of Appeals. Under the state constitution, the jurisdiction of the Court of Appeals is limited to issues that were preserved in the courts below. Despite this limitation, a mode of proceedings error — by definition, unpreserved — is one that is reviewable by the Court of Appeals.

Muldoon is a partner in the law firm of Muldoon & Getz.

The article is located at 59 Buffalo Law Review 1169.