MONTGOMERY, PARIS D., PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    260
    KA 09-00153
    PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    PARIS D. MONTGOMERY, DEFENDANT-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Richard A.
    Keenan, J.), rendered November 26, 2008. The judgment convicted
    defendant, upon a jury verdict, of criminal possession of a controlled
    substance in the third degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law and the indictment is dismissed
    without prejudice to the People to re-present any appropriate charges
    to another grand jury.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of criminal possession of a controlled substance
    in the third degree (Penal Law § 220.16 [1]). We agree with defendant
    that reversal is required because the evidence presented at trial
    rendered the indictment duplicitous, thus creating the danger that he
    was convicted of a crime for which he was not indicted (see People v
    Filer, 97 AD3d 1095, 1096, lv denied 19 NY3d 1025). The trial
    evidence established that a police officer observed defendant engaging
    in conduct indicative of a drug sale on the front porch of a house on
    North Clinton Avenue containing a single occupied apartment. During
    the course of the transaction, the officer observed defendant entering
    the house, presumably to retrieve the drugs for the purchaser. When
    the police executed a search warrant that evening, they discovered a
    sandwich bag containing 28 individually packaged portions of cocaine
    in the entryway of the house located partially under the door of a
    vacant apartment. In the occupied apartment, which was at the top of
    the stairs in the entryway, the police recovered a digital scale and a
    jacket that contained several small empty plastic bags and a quantity
    of uncut cocaine. It is apparent from the record that the grand jury
    returned only a one-count indictment, having found the evidence of
    possession of the uncut cocaine insufficient to return a second count.
    Although neither the indictment nor the bill of particulars indicated
    -2-                           260
    KA 09-00153
    which cocaine defendant was charged with possessing, i.e., the cocaine
    in the sandwich bag or the uncut cocaine, the People orally specified
    before trial that the grand jury had found the evidence insufficient
    to charge defendant with possession of the uncut cocaine, and thus
    defendant had the requisite notice of the offense charged in the
    indictment (see generally People v Alonzo, 16 NY3d 267, 269). The
    indictment was rendered duplicitous, however, because the People
    presented evidence at trial that defendant had constructive possession
    of both the uncut cocaine and the cocaine in the sandwich bag.
    Indeed, the prosecutor advanced that theory in her opening statement
    and on summation. “Under the circumstances, there can be no assurance
    that the jury ‘reached a unanimous verdict’ ” with respect to
    defendant’s constructive possession of the cocaine in the sandwich bag
    as opposed to the uncut cocaine (People v Bracewell, 34 AD3d 1197,
    1199, quoting People v Keindl, 68 NY2d 410, 418, rearg denied 69 NY2d
    823). We therefore reverse the judgment of conviction and dismiss the
    indictment without prejudice to the People to re-present new charges
    to another grand jury (see Filer, 97 AD3d at 1096).
    In light of the foregoing, it is unnecessary to address
    defendant’s remaining contentions.
    Entered:   March 22, 2013                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 09-00153

Filed Date: 3/22/2013

Precedential Status: Precedential

Modified Date: 10/8/2016