        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

26
KA 12-02042
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL WADE, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (MARY P. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered September 19, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree (two
counts), grand larceny in the fourth degree, burglary in the third
degree and petit larceny (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of petit larceny under count five of the indictment and
dismissing that count of the indictment, and as modified the judgment
is affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, two counts of burglary in the second degree
(Penal Law § 140.25 [2]) and three counts of petit larceny (§ 155.25),
defendant contends that County Court erred in denying that part of his
omnibus motion seeking to suppress the showup identification testimony
of one of the victims on the ground that the showup procedure was
unduly suggestive. Although we agree with defendant that the People
“failed in their threshold responsibility to call any witness who
could testify to the circumstances under which defendant was actually
identified” by that victim (People v Ortiz, 90 NY2d 533, 538), we
conclude that the court’s error in refusing to suppress that
identification testimony is harmless beyond a reasonable doubt (see
People v Siler, 45 AD3d 1403, 1403, lv denied 10 NY3d 771; People v
Davis, 15 AD3d 930, 931, lv denied 5 NY3d 761). That victim did not
identify defendant at trial and, moreover, defense counsel conceded
during summation that defendant was the person who was present at the
scene and spoke with the victims, and thus that victim’s
identification of defendant was not at issue at trial (see Siler, 45
AD3d at 1403; Davis, 15 AD3d at 931).
                                 -2-                            26
                                                         KA 12-02042

     Contrary to defendant’s further contention, the counts of the
indictment charging him with burglary in the second degree are not
multiplicitous. Although an indictment may be multiplicitous where
“ ‘two separate counts of the indictment charge the same crime’ ”
(People v Brandel, 306 AD2d 860, 860; see People v Kindlon, 217 AD2d
793, 795, lv denied 86 NY2d 844), an indictment may include separate
counts charging the same crime provided that each crime “constitutes a
separate and distinct offense” (Brandel, 306 AD2d at 860). Here,
there was evidence, albeit circumstantial, from which the jury could
have concluded that defendant entered the victims’ home, stole
property including sunglasses and a wallet, and then exited the home.
The circumstantial evidence also permitted the jury to conclude that,
at another point in time, defendant entered a different part of that
home and stole other property. Thus, defendant was properly charged
with two separate counts of burglary in the second degree (see People
v Felder, 2 AD3d 365, 365, lv denied 2 NY3d 799; see generally People
v Brown, 255 AD2d 686, 687, lv denied 92 NY2d 1029).

     We agree with defendant’s further contention, however, that count
five of the indictment, charging him with petit larceny, was rendered
duplicitous by the trial evidence. We therefore modify the judgment
accordingly. “Because defendant’s right to be tried and convicted of
only those crimes charged in the indictment is fundamental and
nonwaivable” (People v McNab, 167 AD2d 858, 858; see People v Filer,
97 AD3d 1095, 1096, lv denied 19 NY3d 1025), we review defendant’s
contention despite his failure to preserve it. CPL 200.30 (1)
provides that “[e]ach count of an indictment may charge one offense
only.” Count five of the indictment charged defendant with stealing a
bicycle and thus was not facially defective. At trial, however, the
evidence established that two bicycles were stolen. Consequently,
“ ‘[r]eversal is required because the jury may have convicted
defendant of an unindicted [petit larceny], resulting in the
usurpation by the prosecutor of the exclusive power of the [g]rand
[j]ury to determine the charges’ . . . , as well as the ‘danger that .
. . different jurors convicted defendant based on different acts’ ”
(People v Jacobs, 52 AD3d 1182, 1183, lv denied 11 NY3d 926). Under
the circumstances presented here, we dismiss that count of the
indictment with prejudice.

     Defendant’s remaining contentions are not preserved for our
review, and we decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
