| People v Colon |
| 2007 NY Slip Op 09544 [46 AD3d 260] |
| December 4, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Norma Colon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Matthew Galluzzo of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered March 11,2005, convicting defendant, after a jury trial, of failure to disclose the origin of a recording in thesecond degree, and sentencing her to a term of one year, unanimously modified, as a matter ofdiscretion in the interest of justice, to the extent of reducing the sentence to 90 days and threeyears probation, and otherwise affirmed.
Defendant was convicted of selling "pirated" music compact discs bearing the names of theperformers but not the names and addresses of the manufacturers. Penal Law § 275.35states, "The omission of the actual name and address of the manufacturer, or the omissionof the name of the performer or principal artist, or the omission of both, shall constitutethe failure to disclose the origin of a recording" (emphasis added). To the extent that defendant isarguing that the statute is violated only when both omissions are present, that argument iscontrary to the language of the statute. The "or the omission of both" clause is surplusage, andalso makes clear that the statute is violated when both omissions are present. Accordingly, in itsjury charge the court properly deleted any reference to "omission of the name of the performer orprincipal artist," because that portion of the statute did not apply to the facts presented (seee.g. People v Gaines, 74 NY2d 358, 363 [1989] ["remains unlawfully" theory ofburglary should not be charged where inapplicable]). To the extent that defendant is arguing thatthe statute is not violated if the sole omission is either the name or the address of themanufacturer, that contention was never advanced before the trial court. Accordingly, it is notpreserved for review (CPL 470.05 [2]), and we decline to review it in the interest of justice.
Contrary to the People's position, defendant did preserve for appellate review her contentionthat the word "address" in Penal Law § 275.35 includes an Internet or Web site address. Tobe sure, defendant did not voice any objection when the trial court responded to the jury's inquirywhether an e-mail address or Web site address constituted an "address" within the meaning of thestatute. In its response, the court instructed the jury, inter alia, that it should use its commonsense, that "the web did not [exist] in 1990 when the legislature adopted [Penal Law §275.35]" and that "there's not been a ruling as to what constitutes an address." At the close of thePeople's case, however, defendant moved for a trial order of dismissal and argued that the[*2]"address" requirement had been satisfied by proof of a Web siteaddress. In response, the trial court unequivocally stated that a "website is not an address, anaddress with a street" and that "[i]t is my ruling that a website is not an address under themeaning of the statute." Under these circumstances, defendant was not required to belabor herpreviously stated position when the trial court responded to the jury's inquiry (see CPL470.05 [2] ["a party who without success has either expressly or impliedly sought or requested aparticular ruling or instruction, is deemed to have thereby protested the court's ultimatedisposition of the matter . . . regardless of whether any actual protest thereto wasregistered"]).
On the merits, however, we conclude that the term "address" does not include an Internet orWeb site address. In ordinary parlance, the term "address" refers to a physical location (seee.g. Webster's Third New International Dictionary [2002] [defining "address" as "7 a: thedesignation of a place (as a residence or place of business) where a person or organization maybe found or communicated with . . . b: the directions for delivery given on theoutside of an object to be delivered"]; New Oxford American Dictionary [2005] [defining"address" as "the particulars of the place where someone lives or an organization is situated"]),and nothing in the text of the statute suggests that a different meaning was intended (seeWe're Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148, 151 [1985] ["Words ofordinary import in a statute are to be given their usual and commonly understood meaning, unlessit is clear from the statutory language that a different meaning was intended"]).
The jury also asked during deliberations whether "the defendant must have known that theCD was missing the manufacturer's address." In response, the court instructed the jury that theknowledge element of the statute "does not apply to the knowledge of the lack of the material on[a CD]." Defendant did not object to this instruction. Nor did defendant object during an earliercharge conference in which the trial court agreed with the prosecutor's contention that "theknowledge requirement should only apply to the selling of the CD and not to whether or not thename and address . . . appears." Thereafter, the trial court issued a written decision,inter alia, explaining this ruling (8 Misc 3d 569, 577-580 [2005]). Whether defendant haspreserved for review her claim that the statute is not violated unless the actor knows that "theactual name and address of the manufacturer or the name of the performer or principal artist" isnot disclosed presents an issue of statutory construction. A 1986 amendment to the statutedefining New York's contemporaneous-objection rule, CPL 470.05 (2), amended the secondsentence thereof by adding to it a final clause providing that a timely protest is sufficient topreserve a question of law if, inter alia, "in re[s]ponse to a protest by a party, the court expresslydecided the question raised on appeal" (CPL 470.05 [2]). Regardless of whether the court"expressly decided" the question defendant now raises on appeal when it stated its agreementwith the prosecutor during the charge conference, the court "expressly decided" that question inresponse to the jury's inquiry during deliberations.[FN*]
Nevertheless, defendant's claim is still not preserved for review because the court did notexpressly decide the question "in re[s]ponse to a protest by a party" (CPL 470.05 [2]). To thecontrary, the court expressly decided the question in response to the jury's inquiry. To the extentthe court "expressly decided" the question during the charge conference, it did so in response to[*3]the prosecutor's statement of the People's position. At nopoint did defendant object or give the court any reason to believe that she disagreed with thecourt's instruction to the jury.
To read out of CPL 470.05 (2) the requirements of a timely "protest by a party" and a causalnexus between the protest and the question "expressly decided" would violate a fundamentalcanon of construction. Just as "a court cannot amend a statute by inserting words that are notthere" (Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995][internal quotation marks and citation omitted]), it cannot amend a statute by failing to "giveeffect to every word of a statute" (Matter of Yolanda D., 88 NY2d 790, 795 [1996];see also People v Hedgeman, 70 NY2d 533, 539 [1987] ["words which define or delimitthe reach of statutory provisions may not be disregarded as superfluous, but must be givenmeaning and effect"]).
These requirements, moreover, unquestionably further the compelling public purposes thatthe contemporaneous-objection rule is designed to advance. A timely objection "may lead to theexclusion of the evidence objected to, thereby making a major contribution to finality in criminallitigation" (Wainwright v Sykes, 433 US 72, 88 [1977]). The rule also promotes society'sinterest in the fairness and efficiency of criminal litigation (People v Dekle, 56 NY2d835, 837 [1982] ["There is neither constitutional nor jurisprudential error in permitting guilt to bedetermined under a penal statute as construed by the common assumption of both attorneys andthe court. To hold otherwise is to encourage gamesmanship and waste judicial resources in orderto protect a defendant against a claimed error protection against which requires no more than aspecific objection on his part"]). In addition, busy trial judges do not and should not give as muchcare and attention to the many "decisions" they make without apparent disagreement by theparties as they give to decisions that directly address the protests prompting them. Eliminatingthe requirements of a timely protest and a nexus between the protest and the question "expresslydecided" would make little if any sense. The result would be that questions of law would bepreserved for review by ill-considered decisions, less-than-fully-considered decisions and evendecisions that are tantamount to off-the-cuff advisory opinions, despite the defendant's actual ortacit agreement in those decisions.
In People v Prado (4 NY3d725, 726 [2004]) and People vFeingold (7 NY3d 288, 290 [2006]), the Court of Appeals concluded that a question oflaw was preserved for review because the trial court had "expressly decided" the question.Neither decision discusses the statutory requirements of a timely protest and a causal nexusbetween the protest and the question "expressly decided" by the trial court. In the absence of anexpress holding by the Court of Appeals that no such protest or nexus is required, we cannotdisregard the statutory text as superfluous (People v Hedgeman, 70 NY2d at 539).
Defendant never moved to suppress any of the property seized during the execution of thesearch warrant on the ground that although the warrant was for counterfeit CDs, pirated CDswere seized. Accordingly, this contention is also unpreserved and we decline to review it in theinterest of justice.
We find the sentence excessive to the extent indicated. Concur—Mazzarelli, J.P.,Saxe, Williams, Buckley and McGuire, JJ. [See 8 Misc 3d 569.]
Footnote *: The court's subsequent, writtendecision simply memorialized and explained the ruling the court made in responding to the jury'sinquiry.