This appeal addresses whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment. The appellant/defendant, Terrell Allen (“defendant”), was charged with one count of second-degree murder and one count of attempted second-degree murder for the death of the victim. Accordingly, the defendant attempted to shoot the victim while he was in the street but the gun did not fire. Ten minutes later the defendant fired two shots at the victim near the front stoop of the victim’s house. One shot missed the victim but the other shot hit the victim in the head killing him. The victim’s wife witnessed some of the event and spoke to police offices about what she saw, which included naming Welds, the co-defendant (“Welds”). Welds told the police that the defendant had fired the gun at the victim. Three days later, the police arrested the defendant in New Jersey. A lineup was conducted at the 113th precinct in Queens, where the victim’s wife identified the defendant as the shooter. Ballistics evidence also showed that the bullet recovered at the scene and from the victim’s body were fired from the same gun. The defendant and Welds were charged in a single indictment. Welds case was severed from the defendants. Welds stood trial first and was convicted of murder in the second degree by the jury. In an exchange for a promise of leniency, Welds agreed to testify against the defendant.
After the defendant was convicted he claimed three errors at trial. First, the defendant claimed the indictment is duplicitous. The defendant filed a request for a bill of particulars seeking specification of the substance of each aspect of the defendants conduct in relation to each charge. The defendant also filed an omnibus motion, which challenged the indictment as multiplicitous. The defendant claimed that the count one (1) and two (2) of the indictment charging murder in the second degree and attempted murder in the second degree are multiplicitous since they encompass either the same or a single continuing offense and should not be separate counts. Second, the defendant claimed that the Supreme Court erred in denying his motion to suppress identification testimony, which he claimed was made in a lineup that was conducted in violation of his right to counsel. Third, the defendant claimed that the trial court erred in refusing to allow the defendant to introduce extrinsic evidence on a collateral matter to impeach the credibility of a witness.
The Appellate Division held that the indictment which charged the defendant with murder and attempted murder in the second degree were not duplicitous on its face. Accordingly an indictment is duplicitous when a single count charges more than one offence. People v. Alonzo. Here, the defendant contends that at trial, the charges for attempted murder did not become arguably duplicitous until the trial evidence suggested that there was another incident involving the defendant and the victim. However, at trial, the defendant did not object during the opening statement, witness’s testimony, or to the jury charge, which could have remedied any uncertainty at trial. The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review. The preservation to the constitutional right to a public trial requires the preservation of public trial claims. Bringing a public trial violation to a judge’s attention would have ensured the timely opportunity to correct the errors. Therefore, the Appellate Division held that the defendant’s claim that the indictment became duplicitous based on trial evidence could not be considered since the defendant failed to preserve his claim for review.
As for the defendant’s second claim, the Appellate Division held that the trial court did err in denying the defendants motion to suppress the lineup identification, however such an error was deemed harmless. The Appellate Division found the error to be harmless beyond a reasonable doubt due to the overwhelming evidence of the defendant’s guilt. There were three eyewitnesses, ballistics evidence, a confession to one o the witnesses, and the defendant’s effort to avoid arrest by hiding in an attic. Therefore, the error of the admission of the lineup identification was deemed harmless.
Furthermore, the Appellate Division held that the trial court did not abuse its discretion in preventing the defendant from using the police reports to impeach the credibility of the victim’s wife at trial. Accordingly, “…prior statements are often collateral to the ultimate issue before the jury and bear only upon the credibility of the witness, the [statements] admissibility is entrusted to the sound discretion of the Trial Judge whose rulings are not subject to review unless there has been an abuse of discretion as a matter of law.” People v. Duncan. Here, the police records were properly found to be inadmissible extrinsic evidence on a collateral matter, and the defendant failed to show the source of the information in the police reports was the wife herself. Therefore, the Appellate Division found that the trial court did not abuse its discretion in preventing the defendant from using police reports to impeach the witness’s credibility at trial.
Accordingly, the Court of Appeals of New York held that the Appellate Division’s order should be affirmed.
999 N.Y.S.2d 350 (N.Y. 2014)