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

638
KA 07-02086
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH BOYKINS, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered September 17, 2007. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree (two counts), assault in the first degree (two counts), assault
in the second degree, burglary in the first degree (three counts) and
attempted murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of attempted murder in the second degree and dismissing the
ninth count of the amended indictment and by directing that the
sentences on the remaining counts shall run concurrently with respect
to each other and as modified the judgment is affirmed.

     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
AD2d 858, 858; see People v Comfort, 31 AD3d 1110, 1111, lv denied 7
NY3d 847). 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
                                 -2-                           638
                                                         KA 07-02086

defendant based on different acts” (McNab, 167 AD2d at 858; see People
v Jacobs, 52 AD3d 1182, 1183, lv denied 11 NY3d 926). 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 AD3d 1419, 1420-1421, affd 15 NY3d 329), 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 NY2d 811, 814-815;
People v Davis, 68 AD3d 1653, 1655, lv denied 14 NY3d 839, 841, 842).

     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 AD3d 1489, lv denied 13 NY3d 906). Finally,
defendant contends for the first time on appeal that the fifth count
of the amended indictment, charging him with assault in the second
degree (Penal Law § 120.05 [6] [felony assault]) is jurisdictionally
defective because it fails to state that the underlying felony is not
one “defined in [Penal Law article 130 that] requires corroboration
for conviction” (§ 120.05 [6]). “Although . . . a jurisdictional
defect in an indictment . . . may be raised for the first time on
appeal” (People v Iannone, 45 NY2d 589, 600), we reject defendant’s
contention (see generally People v D’Angelo, 98 NY2d 733, 734-735).




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
