Fourth
Department criminal defendants were dealt a significant blow last week by the
Court of Appeals in People v Allen (__ NY3d __, 2014 NY Slip Op 8222 [2014]), in
which the Court held that non-facial duplicity errors must be preserved for
appellate review. Terrell Allen was indicted for attempted murder and murder.
The proof at trial showed that Allen first attempted to shoot the victim, but
his gun did not fire. Ten minutes later he tried again. This time he fired the
gun twice, with one bullet missing and the other striking the victim in the
head, killing him. Neither the indictment nor the bill of particulars specified
whether the attempted murder count referred to the first attempt, where the gun
did not fire, or the second one, where the bullet missed. The trial court’s
instructions to the jury likewise did not specify which incident the
attempted-murder count referred to. Defense counsel did not object to the jury
charge, and the jury convicted Allen of both counts.
On appeal,
Allen argued that the indictment was rendered duplicitous by the proof at
trial. He contended that the proof and the court’s charge made it impossible to
tell whether he was convicted based on the act for which he was indicted, and
that the error did not require preservation. The Court of Appeals disagreed,
first noting that three years earlier, in People
v Becoats (17 NY3d 643 [2011]), it held that facial duplicity arguments—i.e.,
those that are apparent on the face of an indictment—required preservation (Allen at *4). The Becoats Court
was particularly concerned that if such errors did not have to be preserved,
defendants would engage in gamesmanship by sitting quiet at trial, but if
convicted, would raise the duplicity issue to obtain a new trial (id.). Similar concerns led the Court in Allen to find that non-facial duplicity
errors had to be preserved:
“Any uncertainty could
have easily been remedied with an objection during opening statements, the
witness testimony, or to the jury charge. Requiring preservation will prevent
unnecessary surprise after the conduct of a complete trial. Accordingly, we
hold that issues of non-facial duplicity, like those of facial duplicity, must
be preserved for appellate review.” (Id. at *5).
In so
holding, the Court expressly overruled 30 years of Fourth Department precedent
which, starting with People v Rubin
(101 AD2d 71 [4th Dept 1984]), had held that non-facial duplicity errors
constituted mode of proceedings ones, exempt from the rules of preservation.
This doctrine was unique to the Fourth Department, the other three Appellate
Divisions all having declined over the years to hold that an objection was not
required. The doctrine was rooted in what the Fourth Department had held was
the fundamental and nonwaivable “right of an accused to be tried and convicted
of only those crimes and upon only those theories charged in the indictment” (id. at 77).
In light
of Allen, trial counsel must be all
the more vigilant for so-called non-facial duplicity problems. Defendants can
no longer rely on the mode of proceedings error exception where trial counsel
fails to object. Both trial and appellate attorneys should also be aware that
the failure to object to such errors can be grounds for an ineffective
assistance of counsel claim (see e.g.
People v Norfleet, 267 AD2d 881,
883-884 [3d Dept 1999]).
