| People v Wade |
| 2014 NY Slip Op 04587 [118 AD3d 1370] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1] (June 20, 2014)
| The People of the State of New York, Respondent, vMichael Wade, Appellant. |
James S. Kernan, Public Defender, Lyons (Mary P. Davison of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), renderedSeptember 19, 2012. The judgment convicted defendant, upon a jury verdict, of burglaryin the second degree (two counts), grand larceny in the fourth degree, burglary in thethird degree and petit larceny (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of petit larceny under count five ofthe indictment and dismissing that count of the indictment, and as modified the judgmentis affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, two counts of burglary in the second degree (Penal Law § 140.25[2]) and three counts of petit larceny (§ 155.25), defendant contends thatCounty Court erred in denying that part of his omnibus motion seeking to suppress theshowup identification testimony of one of the victims on the ground that the showupprocedure was unduly suggestive. Although we agree with defendant that the People"failed in their threshold responsibility to call any witness who could testify to thecircumstances under which defendant was actually identified" by that victim (Peoplev Ortiz, 90 NY2d 533, 538 [1997]), we conclude that the court's error in refusing tosuppress that identification testimony is harmless beyond a reasonable doubt (see People v Siler, 45 AD3d1403, 1403 [2007], lv denied 10 NY3d 771 [2008]; People v Davis, 15 AD3d930, 931 [2005], lv denied 5 NY3d 761 [2005]). That victim did not identifydefendant at trial and, moreover, defense counsel conceded during summation thatdefendant was the person who was present at the scene and spoke with the victims, andthus that victim's identification of defendant was not at issue at trial (see Siler, 45AD3d at 1403; Davis, 15 AD3d at 931).
Contrary to defendant's further contention, the counts of the indictment charging himwith burglary in the second degree are not multiplicitous. Although an indictment may bemultiplicitous where " 'two separate counts of the indictment charge the samecrime' " (People v Brandel, 306 AD2d 860, 860 [2003]; see People vKindlon, 217 AD2d 793, 795 [1995], lv denied 86 NY2d 844 [1995]), anindictment may include separate counts charging the same crime provided that eachcrime "constitutes a separate and distinct offense" (Brandel, 306 AD2d at 860).Here, there was evidence, albeit circumstantial, from which the jury could haveconcluded that defendant entered the victims' home, stole property including sunglassesand a wallet, and then exited the home. The circumstantial evidence also permitted thejury to conclude that, at another point in time, defendant entered a different part of thathome and stole other property. Thus, defendant was properly charged with two separatecounts of burglary in the second degree (see People v Felder, 2 AD3d 365, 365 [2003], lvdenied 2 NY3d 799 [2004]; see generally People v Brown, 255 AD2d 686,687 [1998], lv denied 92 NY2d 1029 [1998]).
We agree with defendant's further contention, however, that count five of theindictment, charging him with petit larceny, was rendered duplicitous by the trialevidence. We therefore modify the judgment accordingly. "Because defendant's right tobe tried and convicted of only those crimes charged in the indictment is fundamental andnonwaivable" (People v McNab, 167 AD2d 858, 858 [1990]; see People v Filer, 97 AD3d1095, 1096 [2012], lv denied 19 NY3d 1025 [2012]), we review defendant'scontention despite his failure to preserve it. CPL 200.30 (1) provides that "[e]ach countof an indictment may charge one offense only." Count five of the indictment chargeddefendant with stealing a bicycle and thus was not facially defective. At trial, however,the evidence established that two bicycles were stolen. Consequently," '[r]eversal is required because the jury may have convicted defendant of anunindicted [petit larceny], resulting in the usurpation by the prosecutor of the exclusivepower of the [g]rand [j]ury to determine the charges' . . . , as well as the'danger that . . . different jurors convicted defendant based on differentacts' " (People vJacobs, 52 AD3d 1182, 1183 [2008], lv denied 11 NY3d 926 [2009]).Under the circumstances presented here, we dismiss that count of the indictment withprejudice.
Defendant's remaining contentions are not preserved for our review, and we declineto exercise our power to review those contentions as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Present—Smith, J.P., Peradotto,Lindley, Sconiers and Valentino, JJ. [Prior Case History: 2012 NY Slip Op31778(U).]