“Non-facial duplicity” arguments must be preserved – 30 years of Fourth Department caselaw overruled

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]).