The opinion of the court was delivered by: Smith, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Defendant, while backing her car, hit and killed a pedestrian. At the time of that event, defendant's license to drive had been suspended, because of an earlier incident with some noticeable similarities to the later, fatal one. Defendant was convicted of criminally negligent homicide, after a trial in which the trial court admitted into evidence the fact of her license suspension. We hold that this evidence was properly admitted.
On January 2, 2003, defendant, driving on Third Avenue in Manhattan, stopped her car and backed it up to let her passengers out at a pizza shop. She backed too quickly, and failed to see an elderly woman, Francesca Maytin, who was crossing the avenue at or near a crosswalk. The car hit Maytin, who died later that day.
This was not the first time defendant had backed a car carelessly. Three months earlier, on October 3, 2002, her car was illegally parked at a bus stop, and a police officer began to write a ticket. Arriving at her car, defendant sought to escape the parking ticket by jumping into the car and backing away quickly -- going, according to the People's description, into a busy intersection in the vicinity of a school at 8:30 in the morning. Her escape was thwarted when a bus blocked her path, and she received four summonses, including one for unsafe backing and one for failing to yield to pedestrians in a crosswalk. Her license to drive was suspended as a result.
Before defendant's trial, the People sought permission to put into evidence the details of the October 3 incident. Supreme Court rejected that request, but the People were allowed to, and did, show that defendant's license had been suspended and that it remained so on the day of the fatal event. Defendant, convicted of criminally negligent homicide, appealed to the Appellate Division, which reversed, holding that evidence of the license suspension should not have been admitted (People v Caban, 51 AD3d 455 [1st Dept 2008]). A Judge of this Court granted the People leave to appeal, and we now reverse the Appellate Division's order.
We must first decide whether the alleged error in admitting the license suspension was preserved for appellate review. Taking opposite positions from the ones they took in the Appellate Division, the People now argue that it was, and defendant that it was not. The reason the parties have changed sides is that, under our precedents, an Appellate Division reversal that is based on an unpreserved error is considered an exercise of the Appellate Division's interest of justice power, not reviewable in our Court (People v Baumann & Sons Buses, Inc., 6 NY3d 404, 406-407 ; People v Fava, 58 NY2d 807 ). Thus, if defendant failed to preserve the alleged error, she would benefit from her mistake, for we would be required to dismiss the People's appeal.
We conclude that the alleged error was preserved, though the relevant record is a bit complicated. The People moved before trial for the admission of evidence about the October 3, 2002 incident, and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor. It is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position.
Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.
Defendant's argument, which the Appellate Division accepted, is that her license suspension was irrelevant to her guilt or innocence. In defendant's view, the license suspension sheds no light on whether she was criminally negligent in causing Maytin's death, but only served to prejudice the jury against her as someone who violated the law by driving illegally. We reject this argument, and conclude that the license suspension was relevant to the issue of criminal negligence.
Criminal negligence is defined by Penal Law § 15.05 (4):
"A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross ...