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

10
KA 10-01130
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY THOMAS, DEFENDANT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered April 14, 2010. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal possession of a weapon in the second degree (Penal
Law § 265.03 [3]), defendant contends that there was evidence that he
possessed both a revolver and a pistol and thus that he may have been
convicted of an unindicted offense. “Because defendant’s right to be
tried and convicted of only those crimes charged in the indictment is
fundamental and nonwaivable, we reach this issue despite the fact that
it is unpreserved” (People v McNab, 167 AD2d 858, 858). We
nevertheless reject defendant’s contention. Defendant was charged
with possessing “a loaded pistol and/or revolver.” Prosecution
witnesses testified that defendant fired at the victim with a revolver
in one hand and a pistol in the other, and that the victim died from a
gunshot wound to the chest from a .38 caliber revolver. The
prosecution also presented as evidence defendant’s statement to the
police wherein he admitted that he possessed a 9 millimeter pistol but
denied that he possessed a revolver. Defendant presented testimony
that he did not have a weapon. There was no evidence that defendant
possessed more than two loaded weapons (cf. People v Ball, 57 AD3d
1444, 1445, lv denied 12 NY3d 755), or that he possessed a weapon of a
type different from the weapons alleged in the indictment. We
therefore conclude that the jury did not convict him of an unindicted
crime and that the prosecution did not usurp the authority of the
grand jury to determine the charges (cf. id.; McNab, 167 AD2d at 858).
Here, the indictment gave defendant the requisite notice of the charge
                                 -2-                            10
                                                         KA 10-01130

against him (cf. Ball, 57 AD3d at 1445; McNab, 167 AD2d at 858), to
enable him to prepare a defense (see generally People v Grega, 72 NY2d
489, 495-496).

     Defendant also implicitly contends that the indictment is
facially duplicitous because it charges two offenses in one count (see
generally CPL 200.30 [1]; People v Bauman, 12 NY3d 152, 154-155), and
thus that reversal is required because the verdict may not have been
unanimous with respect to which weapon or weapons he possessed.
Defendant failed to preserve that contention for our review, however,
inasmuch as he did not challenge the indictment as duplicitous within
45 days of his arraignment on the indictment (see CPL 255.20 [1];
People v Brown, 82 AD3d 1698, 1700, lv denied 17 NY3d 792). In any
event, we reject defendant’s contention. Here, “[t]here was no
violation of the requirement of a unanimous verdict, since the single
count of second-degree weapon possession had a single factual basis,
that is, the People’s theory that, in a brief, continuing incident,
defendant . . . possessed [one or two loaded weapons] as part of a . .
. criminal enterprise” (People v Jones, 64 AD3d 427, 428, lv denied 13
NY3d 797; cf. Bauman, 12 NY3d at 155). “ ‘Plainly there is no general
requirement that the jury reach agreement on the preliminary factual
issues which underlie the verdict’ ” (People v Mateo, 2 NY3d 383, 408,
cert denied 542 US 946, quoting Schad v Arizona, 501 US 624, 632, reh
denied 501 US 1277), i.e., which particular loaded weapon or weapons
defendant possessed. Indeed, “the jury need not necessarily concur in
a single view of the transaction, in order to reach a verdict . . .
‘[I]f the conclusion may be justified upon [more than one]
interpretation[] of the evidence, the verdict cannot be impeached by
showing that a part of the jury proceeded upon one interpretation and
part upon the other’ ” (id. at 408 n 13, quoting People v Sullivan,
173 NY 122, 127).

     Finally, we reject defendant’s challenge to the severity of the
sentence.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
