The “Bacon Preservation Rule” — Clarifying How and When a Confrontation-Clause Objection Must Be Raised in New York

Introduction

People v. Bacon (2025 NY Slip Op 03692) presented the New York Court of Appeals with a familiar Sixth-Amendment problem (out-of-court testimonial statements admitted without cross-examination) entwined with a procedural one (failure to preserve the constitutional claim).

Zavearr Bacon was convicted of robbery and assault after police officers repeated to the jury what the two alleged victims had said at the scene; the victims never testified. On appeal, Bacon asserted that the admission of those statements violated the Confrontation Clause. The Court of Appeals, in a 4-3 split, affirmed the conviction solely on preservation grounds, holding that defense counsel’s trial objections and mid-trial motion for a “trial order of dismissal” did not unambiguously alert the trial court to a Confrontation-Clause claim.

The majority opinion, juxtaposed against a vigorous dissent, crystallises a new procedural directive: when counsel wishes to challenge the admission of testimonial hearsay on constitutional grounds, the objection must be clear and specific; a passing reference to an inability to cross-examine, especially when embedded in an insufficiency motion, will not suffice. This commentary explores that holding, the competing rationales, and the likely ripple effects across criminal litigation in New York.

Summary of the Judgment

Holding: The Appellate Division’s affirmance of Bacon’s conviction is itself affirmed. Bacon’s Confrontation-Clause argument was unpreserved; therefore the Court declined to reach its merits.
Key Point: Under Criminal Procedure Law § 470.05(2), an appellate claim is preserved only when the objection “fairly apprises” the trial judge of the legal ground being urged at a time when the court can correct the error. Bacon’s motion at the close of the People’s case—labelled a “trial order of dismissal” and focused on legal sufficiency—did not meet that standard.
Result: Conviction stands; no new trial. The dissent (Rivera, J., joined by Wilson, Ch. J., and Troutman, J.) would have reversed, finding both preservation and a textbook Confrontation-Clause violation.

Analysis

1. Precedents Cited and Their Influence

People v. Cabrera, 41 NY3d 35 (2023)
Reaffirmed that an objection preserves an issue only if the trial court expressly decides that exact question or the objection was specifically raised at a point where correction was possible. The majority in Bacon relies heavily on this “express decision or specific protest” language.
People v. Garcia, 25 NY3d 77 (2015)
In Garcia the Court deemed preserved a Confrontation-Clause objection where counsel said, “We don’t have that witness here.” The Bacon majority distinguishes Garcia as an instance where the objection was contemporaneous and not wrapped inside a sufficiency motion. The dissent argues Bacon is indistinguishable from Garcia.
People v. Kello, 96 NY2d 740 (2001)
Stands for the proposition that vague references to rights or fairness do not preserve constitutional arguments. The majority invokes Kello to underscore that a mere mention of “no ability to cross-examine” is too vague.
Federal precedents (Crawford v. Washington, Davis v. Washington, Michigan v. Bryant) are discussed extensively in the dissent to show why the admitted statements were testimonial and therefore unconstitutional without cross-examination. The majority does not engage these cases because it never reaches the merits; nevertheless, their presence highlights what is at stake when preservation bars review.

2. The Court’s Legal Reasoning

The majority deployed a two-step analytic path:

Identify the nature of the trial objection. The defense moved at the close of the People’s case for a “trial order of dismissal” under CPL 290.10, a motion that by definition targets legal sufficiency. The trial judge explicitly asked whether that was indeed the question, and counsel affirmed. Therefore, says the Court, the motion was confined to sufficiency.
Apply CPL 470.05(2) to gauge preservation. Because counsel did not mention the Confrontation Clause, cite authority, or request a limiting instruction or mistrial at the moment the hearsay was introduced, the constitutional claim was never put before the trial court in a correctable posture. Post-admission motions aimed at sufficiency cannot retroactively cure that omission.

In a footnote, the majority rejects the dissent’s charge of “creating a new preservation hurdle,” stating that once the court queried counsel and counsel confirmed the scope, any earlier ambiguity evaporated.

3. Potential Impact of the Judgment

Heightened Precision Required at Trial Defense lawyers in New York must now assume that ambiguous or generic objections will risk forfeiting constitutional claims on appeal. The safest approach is to utter the magic words—“Confrontation Clause” or “Sixth Amendment”—at the moment evidence is offered.
Strategic Split in Mid-Trial Motions Counsel will likely separate sufficiency motions (CPL 290.10) from evidentiary objections to avoid conflation. Expect more frequent contemporaneous motions to strike hearsay testimony followed by precise constitutional citations.
Prosecutorial and Judicial Awareness Prosecutors gain an additional buffer: unless the defense is meticulous, testimonial hearsay may slip through unchallenged. Trial judges, however, could see an uptick in explicit constitutional objections, requiring more on-the-record rulings.
Appellate Landscape The decision arms reviewing courts with a clear tool to dispose of Confrontation-Clause appeals procedurally, reducing the need to delve into the underlying constitutional merits. Expect a rise in “affirmed on preservation” outcomes.

Complex Concepts Simplified

Confrontation Clause – A component of the Sixth Amendment guaranteeing that a defendant can face, and cross-examine, the witnesses whose statements are used to prove guilt.
Testimonial Statements – Out-of-court assertions made primarily to establish facts for later prosecution (e.g., police questioning after an event). Such statements may be admitted only if the declarant appears for cross-examination or was previously subject to cross-examination.
Preservation (CPL 470.05) – New York’s rule that an appellate issue is reviewable only if the lawyer objected at trial in a manner that alerted the court to the specific legal ground (constitutional or otherwise).
Trial Order of Dismissal (CPL 290.10) – A motion made at the close of the People’s case asking the judge to dismiss counts because the evidence, even if credited, fails to establish a prima facie case.
Legal Sufficiency vs. Evidentiary Objection – Sufficiency challenges look at the quantity/quality of proof; evidentiary objections protest the admission of particular items. They require different preservation steps.

Conclusion

People v. Bacon does not add new substance to Confrontation-Clause doctrine; instead, it sharpens the procedural lens through which such claims must travel. By insisting that objections be explicit and timely, the Court erects what this commentary terms the “Bacon Preservation Rule.” Whether this promotes orderly trials or places undue formalistic burdens on defense counsel will be tested in future cases, but the immediate message is clear: if you believe testimonial hearsay violates the Sixth Amendment, say so—in so many words—before the jury hears it. The decision thus reinforces the paramount importance of contemporaneous, precise objections in safeguarding constitutional rights within New York’s criminal justice system.