Opinion
883 KA 16-00067
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Zachary HURSH, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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, of robbery in the third degree ( Penal Law § 160.05 ), defendant contends that the evidence at trial, coupled with County Court's jury instructions, created the possibility that he was convicted of the crime upon a different theory from the one charged in the indictment as supplemented by the bill of particulars, and that the indictment was therefore rendered duplicitous.
We note that, as the Court of Appeals recognized in People v. Allen, 24 N.Y.3d 441, 449, 999 N.Y.S.2d 350, 24 N.E.3d 586 (2014), this Court had previously "held that duplicity created by trial evidence violates a defendant's right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant's right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary." In Allen , however, the Court of Appeals ruled that any such "uncertainty could have easily been remedied with an objection during opening statements or the witness testimony, or to the jury charge," and that "[r]equiring preservation will prevent unnecessary surprise after the conduct of a complete trial" ( id. ). "Accordingly, [the Court of Appeals held] that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review" ( id. at 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ). We therefore conclude here that defendant was required to preserve his challenge for our review (see id. ; see also People v. Zeman , 156 A.D.3d 1460, 1461, 65 N.Y.S.3d 827 [4th Dept. 2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 666, 102 N.E.3d 443 [2018] ; People v. Garner , 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ). Insofar as several cases from this Court issued after Allen indicate that a defendant need not preserve an "issue[ ] of non-facial duplicity" that is based wholly or partially on a jury charge ( 24 N.Y.3d at 449, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; see e.g. People v. Barber , 155 A.D.3d 1543, 1544, 64 N.Y.S.3d 430 [4th Dept. 2017] ; People v. Graves , 136 A.D.3d 1347, 1348, 25 N.Y.S.3d 477 [4th Dept. 2016], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ), they are no longer to be followed. Here, defendant failed to preserve his contention for our review (see People v. Tirado , 175 A.D.3d 970, 971, 105 N.Y.S.3d 338 [4th Dept. 2019], lv denied , 34 N.Y.3d 984, 113 N.Y.S.3d 644, 137 N.E.3d 14 [2019], reconsideration denied 34 N.Y.3d 1133, 118 N.Y.S.3d 532, 141 N.E.3d 488 [2020] ; People v. Vail , 174 A.D.3d 1365, 1366, 105 N.Y.S.3d 772 [4th Dept. 2019] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).