| People v Boykins |
| 2011 NY Slip Op 04838 [85 AD3d 1554] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Kenneth Boykins, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered September 17, 2007. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree (two counts), assault in the first degree (two counts), assault in the seconddegree, burglary in the first degree (three counts) and attempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of attempted murder in the second degree anddismissing the ninth count of the amended indictment and by directing that the sentences on theremaining counts shall run concurrently with respect to each other and as modified the judgmentis affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [2])arising from a home invasion. We agree with defendant that the conviction of attempted murderin the second degree must be reversed. Although the ninth count of the amended indictment,charging defendant with that crime, refers to a single attempt to cause the death of the intendedvictim by shooting him, the People presented evidence at trial establishing that there were twodistinct shooting incidents that may constitute the crime of attempted murder in the seconddegree. "Reversal [of that conviction and dismissal of the ninth count] is required because thejury may have convicted defendant of an unindicted [attempted murder], resulting in theusurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine thecharges" (People v McNab, 167 AD2d 858, 858 [1990]; see People v Comfort, 31 AD3d1110, 1111 [2006], lv denied 7 NY3d 847 [2006]). In addition, because the trialevidence establishes two distinct acts that may constitute attempted murder, "[i]t is impossible toascertain . . . whether different jurors convicted defendant based on different acts"(McNab, 167 AD2d at 858; seePeople v Jacobs, 52 AD3d 1182, 1183 [2008], lv denied 11 NY3d 926 [2009]).Although defendant failed to preserve his contention for our review, "[p]reservation is notrequired inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes andupon only those theories charged in the indictment is fundamental and nonwaivable' " (People v Bradford, 61 AD3d 1419,1420-1421 [2009], affd 15 NY3d 329 [2010]), as is the right to a unanimous verdict(see CPL 310.80). We therefore modify the judgment [*2]by reversing that part convicting defendant of attempted murder inthe second degree and dismissing the ninth count of the amended indictment. As the Peoplecorrectly concede, the sentences imposed on the remaining counts must run concurrently withrespect to each other, and we therefore further modify the judgment accordingly (seegenerally People v Parks, 95 NY2d 811, 814-815 [2000]; People v Davis, 68 AD3d 1653, 1655 [2009], lv denied 14NY3d 839 [2010]).
We reject defendant's further contention that Supreme Court erred in denying his motion tosever his trial from that of his codefendant (see People v Clark, 66 AD3d 1489 [2009], lv denied 13NY3d 906 [2009]). Finally, defendant contends for the first time on appeal that the fifth count ofthe amended indictment, charging him with assault in the second degree (Penal Law §120.05 [6] [felony assault]) is jurisdictionally defective because it fails to state that theunderlying felony is not one "defined in [Penal Law article 130 that] requires corroboration forconviction." "Although . . . a jurisdictional defect in an indictment . . .may be raised for the first time on appeal" (People v Iannone, 45 NY2d 589, 600 [1978]),we reject defendant's contention (see generally People v D'Angelo, 98 NY2d 733,734-735 [2002]). Present—Scudder, P.J., Fahey, Lindley, Green and Gorski, JJ.