People v. Boykins

• Decision Date: 10 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Kenneth BOYKINS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1554

924 N.Y.S.2d 711

2011 N.Y. Slip Op. 04838

The PEOPLE of the State of New York, Respondent,

v.Kenneth BOYKINS, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 10, 2011.

Timothy P. Donaher, Public Defender, Rochester (David Juergens Of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[2] ) arising from a home invasion. We agree with defendant that the conviction of attempted murder in the second degree must be reversed. Although the ninth count of the amended indictment, charging defendant with that crime, refers to a single attempt to cause the death of the intended victim by shooting him, the People presented evidence at trial establishing that there were two distinct shooting incidents that may constitute the crime of attempted murder in the second degree. “Reversal [of that conviction and dismissal of the ninth count] is required because the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges” ( People v. McNab, 167 A.D.2d 858, 858, 562 N.Y.S.2d 590; see People v. Comfort, 31 A.D.3d 1110, 1111, 817 N.Y.S.2d 811, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71). In addition, because the trial evidence establishes two distinct acts that may constitute attempted murder, “[i]t is impossible to ascertain ... whether different jurors convicted defendant based on different acts” ( McNab, 167 A.D.2d at 858, 562 N.Y.S.2d 590; see People v. Jacobs, 52 A.D.3d 1182, 1183, 859 N.Y.S.2d 541, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). Although defendant failed to preserve his contention for our review, “[p]reservation is not required inasmuch as ‘[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable’ ” ( People v. Bradford, 61 A.D.3d 1419, 1420–1421, 877 N.Y.S.2d 586, affd. 15 N.Y.3d 329, 910 N.Y.S.2d 771, 937 N.E.2d 528), as is the right to a unanimous verdict ( see CPL 310.80). We therefore modify the judgment by reversing that part convicting defendant of attempted murder in the second degree and dismissing the ninth count of the amended indictment. As the People correctly concede, the sentences imposed on the remaining counts must run concurrently with respect to each other, and we therefore further modify the judgment accordingly ( see generally People v. Parks, 95 N.Y.2d 811, 814–815, 712 N.Y.S.2d 429, 734 N.E.2d 741; People v. Davis, 68 A.D.3d 1653, 1655, 893 N.Y.S.2d 411, lv. denied 14 N.Y.3d 839, 841, 842, 901 N.Y.S.2d 146, 147, 148, 927 N.E.2d 567, 568, 569).

We reject defendant's further contention that Supreme Court erred in denying his motion to sever his trial from that of his codefendant ( see People v. Clark, 66 A.D.3d 1489, 885 N.Y.S.2d 797, lv. denied 13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909). Final...