| People v Montgomery |
| 2013 NY Slip Op 01953 [104 AD3d 1291] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ParisD. Montgomery, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered November 26, 2008. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and the indictment is dismissed without prejudice to the People to re-present anyappropriate charges to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). We agree with defendant that reversal is required because theevidence presented at trial rendered the indictment duplicitous, thus creating the dangerthat he was convicted of a crime for which he was not indicted (see People v Filer, 97 AD3d1095, 1096 [2012], lv denied 19 NY3d 1025 [2012]). The trial evidenceestablished that a police officer observed defendant engaging in conduct indicative of adrug sale on the front porch of a house on North Clinton Avenue containing a singleoccupied apartment. During the course of the transaction, the officer observed defendantentering the house, presumably to retrieve the drugs for the purchaser. When the policeexecuted a search warrant that evening, they discovered a sandwich bag containing 28individually packaged portions of cocaine in the entryway of the house located partiallyunder the door of a vacant apartment. In the occupied apartment, which was at the top ofthe stairs in the entryway, the police recovered a digital scale and a jacket that containedseveral small empty plastic bags and a quantity of uncut cocaine. It is apparent from therecord that the grand jury returned only a one-count indictment, having found theevidence of possession of the uncut cocaine insufficient to return a second count.Although neither the indictment nor the bill of particulars indicated which cocainedefendant was charged with possessing, i.e., the cocaine in the sandwich bag or the uncutcocaine, the People orally specified before trial that the grand jury had found theevidence insufficient to charge defendant with possession of the uncut cocaine, and thusdefendant had the requisite notice of the offense charged in the indictment (see generally People v Alonzo,16 NY3d 267, 269 [2011]). The indictment was rendered duplicitous, however,because the People presented evidence at trial that defendant had constructive possessionof both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutoradvanced that theory in her opening [*2]statement and onsummation. "Under the circumstances, there can be no assurance that the jury 'reached aunanimous verdict' " with respect to defendant's constructive possession of the cocaine inthe sandwich bag as opposed to the uncut cocaine (People v Bracewell, 34 AD3d 1197, 1199 [2006], quotingPeople v Keindl, 68 NY2d 410, 418 [1986], rearg denied 69 NY2d 823[1987]). We therefore reverse the judgment of conviction and dismiss the indictmentwithout prejudice to the People to re-present new charges to another grand jury (seeFiler, 97 AD3d at 1096).
In light of the foregoing, it is unnecessary to address defendant's remainingcontentions. Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.