        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
