| People v Thomas |
| 2014 NY Slip Op 00753 [114 AD3d 1138] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vJeffrey Thomas, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered April 14, 2010. The judgment convicted defendant, upon a juryverdict, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that there was evidence that he possessed both a revolver and a pistoland thus that he may have been convicted of an unindicted offense. "Because defendant'sright to be tried and convicted of only those crimes charged in the indictment isfundamental and nonwaivable, we reach this issue despite the fact that it is unpreserved"(People v McNab, 167 AD2d 858, 858 [1990]). We nevertheless rejectdefendant's contention. Defendant was charged with possessing "a loaded pistol and/orrevolver." Prosecution witnesses testified that defendant fired at the victim with arevolver in one hand and a pistol in the other, and that the victim died from a gunshotwound to the chest from a .38 caliber revolver. The prosecution also presented asevidence defendant's statement to the police wherein he admitted that he possessed a 9millimeter pistol but denied that he possessed a revolver. Defendant presented testimonythat he did not have a weapon. There was no evidence that defendant possessed morethan two loaded weapons (cf.People v Ball, 57 AD3d 1444, 1445 [2008], lv denied 12 NY3d 755[2009]), or that he possessed a weapon of a type different from the weapons alleged inthe indictment. We therefore conclude that the jury did not convict him of an unindictedcrime and that the prosecution did not usurp the authority of the grand jury to determinethe charges (cf. id.; McNab, 167 AD2d at 858). Here, the indictmentgave defendant the requisite notice of the charge against him (cf. Ball, 57 AD3dat 1445; McNab, 167 AD2d at 858), to enable him to prepare a defense (seegenerally People v Grega, 72 NY2d 489, 495-496 [1988]).
Defendant also implicitly contends that the indictment is facially duplicitous becauseit charges two offenses in one count (see generally CPL 200.30 [1]; People v Bauman, 12 NY3d152, 154-155 [2009]), and thus that reversal is required because the verdict may nothave been unanimous with respect to which weapon or weapons he possessed. Defendantfailed to preserve [*2]that contention for our review,however, inasmuch as he did not challenge the indictment as duplicitous within 45 daysof his arraignment on the indictment (see CPL 255.20 [1]; People v Brown, 82 AD3d1698, 1700 [2011], lv denied 17 NY3d 792 [2011]). In any event, we rejectdefendant's contention. Here, "[t]here was no violation of the requirement of aunanimous verdict, since the single count of second-degree weapon possession had asingle factual basis, that is, the People's theory that, in a brief, continuing incident,defendant . . . possessed [one or two loaded weapons] as part of a. . . criminal enterprise" (People v Jones, 64 AD3d 427, 428 [2009], lv denied13 NY3d 797 [2009]; cf. Bauman, 12 NY3d at 155). " 'Plainly there is nogeneral requirement that the jury reach agreement on the preliminary factual issues whichunderlie the verdict' " (People v Mateo, 2 NY3d 383, 408 [2004], cert denied542 US 946 [2004], quoting Schad v Arizona, 501 US 624, 632 [1991],reh denied 501 US 1277 [1991]), i.e., which particular loaded weapon orweapons defendant possessed. Indeed, "the jury need not necessarily concur in a singleview of the transaction, in order to reach a verdict . . . '[I]f the conclusionmay be justified upon [more than one] interpretation[ ] of the evidence, the verdictcannot be impeached by showing that a part of the jury proceeded upon oneinterpretation and part upon the other' " (id. at 408 n 13, quoting People vSullivan, 173 NY 122, 127 [1903]).
Finally, we reject defendant's challenge to the severity of the sentence.Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.