=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 206
The People &c.,
            Respondent,
        v.
Terrell Allen,
            Appellant.




          Angie Louie, for appellant.
          Nancy Fitzpatrick Talcott, for respondent.




LIPPMAN, Chief Judge:
          The primary issue presented by this appeal is 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.   We hold that such error must be preserved, and find
that none of the other issues raised by defendant warrant

                               - 1 -
                                                             No. 206

reversal.
            On June 22, 2008, shortly before 1:30 a.m., defendant
attempted to shoot the victim while he was in the street, but the
gun did not fire.   Approximately ten minutes later, by the stoop
in front of the victim’s house, defendant fired two shots, one
missing and one hitting the victim in the head and killing him.
            The victim’s wife witnessed some of the events leading
up to the shooting, and on the night of the murder, spoke to
police officers about what she saw.     She mentioned to Detective
Mark Lobel the name of the co-defendant in this case (Welds), who
told police that defendant had fired the gun. Three days later,
defendant was arrested by police, including Detective Lobel, in
New Jersey, after he attempted to avoid arrest by hiding in an
attic.   Police brought defendant to the 113th precinct in Queens.
Detective Lobel conducted a lineup at the station, and the
victim’s wife identified defendant as the shooter.    Ballistics
evidence showed that the bullet recovered at the scene and the
bullet recovered from the victim’s body were	fired from the same
gun. Defendant and Welds were charged in a single indictment.
Welds’ case was ultimately severed from defendant’s.    Welds stood
trial first and was convicted by a jury of murder in the second
degree. Facing a sentence of up to 15 years to life, Welds agreed
to testify against defendant in exchange for a promise of
leniency.   Welds was sentenced to 7 1/2 years to life.




                                - 2 -
                                                             No. 206

             Defendant was charged with one count of second-degree
murder and one count of attempted second-degree murder among
other charges.    The indictment charged defendant and co-defendant
with:
        "murder in the second degree, committed as follows: The
        defendants, on or about June 22, 2008, in the County of
        Queens, acting in concert with each other and with the
        intent to cause the death of Kevin Macklin, caused the
        death of Kevin Macklin, by luring him off the front
        steps of his home and shooting him with a loaded
        firearm."

Defendant, alone, was charged with:

        "attempted murder in the second degree, committed as
        follows: The defendant, on or about June 22, 2008, in
        the County of Queens, with the intent to cause the
        death of Kevin Macklin, attempted to cause the death of
        Kevin Macklin by discharging a loaded firearm at and in
        his direction."

Defendant filed a request for a bill of particulars, seeking
specification of the substance of each aspect of defendant’s
conduct encompassed by each charge, the distinctions in conduct
between the counts of the indictment, and the exact date, time
and location of the alleged crimes charged.    Defendant also filed
an omnibus motion, which challenged the indictment as
multiplicitous, arguing:
        "It appears the Counts 1 and 2 of the indictment
        charging murder in the second degree (intentional) and
        attempted murder in the second degree are
        multiplicitous counts as . . . the defendant is charged
        [with] attempting to cause the death of Kevin Macklin
        by discharging a loaded firearm at and in his
        direction, and . . . the defendant is charged with
        luring him off the front steps of his home and shooting
        him with a loaded firearm, causing his death. It
        appears that these counts encompass either the same

                                 - 3 -
                                                             No. 206

     conduct or a single continuing offense and should not
     be separate counts in this indictment."
     In response, the People stated that the substance of
defendant’s conduct was that:
     "On June 22, 2008, at approximately 01:35 a.m., in the
     vicinity of 112-02 148th Street, the defendant, acting
     in concert with co-defendant . . . pointed a pistol at
     Kevin Macklin, and attempted to shoot Kevin Macklin,
     and thereafter did fire at Kevin Macklin, striking him
     in the head, thereby causing his death."
          After a Wade hearing, Supreme Court denied defendant’s

motion to suppress identification testimony, which had claimed,

inter alia, that the identification was made in a lineup that was

conducted in violation of defendant’s right to counsel.   There

was conflicting testimony from defendant and the police officers

as to whether or not defendant had requested the presence of his

attorney at the lineup. The court concluded that “even if

defendant Allen in fact had told detectives prior to the lineup

that he wanted his lawyer, they were under no obligation to

contact or provide counsel at the lineup.”
          During opening arguments, the People raised both
incidents of defendant attempting to shoot the victim (both the
gun not firing, and the missed shot in front of the house ten
minutes later), applying the term "attempted murder" only to the
earlier one.   Defendant made no objection. During the testimony
of the People’s witnesses, the prosecution asked questions about
both incidents. The People presented three eyewitnesses who
testified about the events that occurred that night, ballistics

                                - 4 -
                                                             No. 206

evidence, and an inculpatory statement made by defendant to one
of the witnesses an hour after the shooting.   The People also
presented evidence of defendant's attempts to avoid apprehension
and arrest by the police.   During trial, the court refused to
allow defendant to introduce the extrinsic evidence, consisting
of several police reports of the incident, to impeach the
credibility of one of the People’s witnesses on the stand.
According to the officers who wrote these reports, they were
based on secondhand information since neither of the officers had
spoken to the witness directly.
          In the closing argument, the prosecutor did not clarify
which incident formed the basis of the attempted murder count.
The court also did not specify which conduct the attempted murder
charge was based upon, stating:
     "Under the second count the People are required to
     prove beyond a reasonable doubt two elements: One, on
     or about June 22, 2008 in the County of Queens this
     defendant acting in concert intended to commit the
     crime of murder in the second degree. I have given you
     those elements. And two, the defendant engaged in
     conduct which tended to effect the commission of that
     crime."
Defendant did not object to the charge.

          Defendant was convicted on all counts, and sentenced to
25 years to life for murder, 25 years for attempted murder, 15
years for each of two criminal possession of a weapon counts, and
one year for menacing.   The attempted murder sentence was imposed
consecutively to the other counts.



                               - 5 -
                                                             No. 206

           The Appellate Division unanimously modified the

judgment of conviction, as a matter of discretion in the interest

of justice, by directing that all the terms of imprisonment run

concurrently with each other, and as so modified, affirmed,

holding that: (1) although the trial court erred in denying

defendant’s motion to suppress the lineup identification, the

error was harmless; (2) the trial court properly refused to allow

defendant to introduce extrinsic evidence on a collateral matter

to impeach the credibility of a witness; and (3) the duplicity

argument was unpreserved (105 AD3d 754 [2d Dept 2013]).1

           “An indictment is duplicitous when a single count

charges more than one offense” (People v Alonzo, 16 NY3d 267, 269

[2011]).   Defendant argues that the count of the indictment

charging him with attempted murder was rendered duplicitous due

to events that unfolded during the course of the trial.

     The indictment in this case appears to cite the incident

that occurred in front of victim’s house (the two shots fired

within seconds of each other) as the basis for the attempted

murder count against defendant.   The bill of particulars, which

says that "defendant pointed a pistol and attempted to shoot . .

. and thereafter fired," may be read as tying the attempted

murder charge to the earlier incident (the misfire), but it does


1
   The Appellate Division also held that defendant's multiplicity
argument was preserved but without merit. Defendant does not
pursue the multiplicity claim on appeal to this Court.

                               - 6 -
                                                             No. 206

not eliminate the ambiguity. At trial, beginning with the opening

statement, the People presented to the jury two separate

incidents in which a gun was pointed at the victim, and defendant

pulled the trigger.   Neither the People, in their closing

argument, nor the court, in its instructions to the jury,

clarified the basis of the attempted murder count.   Thus

defendant contends that the jury verdict on the attempted murder

count could have represented either a finding as to the first

incident, the second incident, or a combination of the two.

            Defendant argues that preservation is unnecessary where

a count is not duplicitous on its face, but where it is the

evidence adduced at trial that renders a count duplicitous,

contending that the defect constitutes a mode of proceedings

error.

            In People v Becoats (17 NY3d 643 [2011]), defendant

contended that the indictment was facially duplicitous.     This

Court held that such issues must be preserved at trial.     We

reasoned:

     "To allow an unpreserved claim of duplicitousness to be
     raised on appeal would open the door to abuse.
     Defendants accused of multiple offenses may not much
     care how many counts they face, or may prefer to face
     one count (and thus one conviction) rather than
     several. Under the rule defendants here seek, it would
     be possible for them to make that choice at trial by
     letting a duplicitous indictment stand without
     objection, and make the opposite choice on appeal; they
     might thus obtain a new trial on the basis of an error
     they consciously decided not to challenge because they
     thought it insignificant, or welcomed it. To expand the

                                - 7 -
                                                             No. 206

     definition of 'mode of proceedings' error too freely
     would create many such anomalous results."

Becoats (17 NY3d at 651).   Here, defendant asserts that the

charge for attempted murder did not become arguably duplicitous

until the trial evidence suggested that there had been another

incident involving defendant and the victim.

          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 (see People v
Sinha, 84 AD3d 35, 43-44 [1st Dept 2011], affd 19 NY3d 822
[2011]; People v Nash, 77 AD3d 687, 688 [2d Dept 2010]).     The
Fourth Department, however, has held that duplicity created by
trial evidence violates a defendant’s right to be tried and
convicted only of the crimes and theories charged in the
indictment, which is a fundamental and non-waivable right, and
that such error also violates a defendant’s right under CPL
310.80 to a unanimous verdict, and that preservation is
unnecessary (see People v Montgomery, 104 AD3d 1291 [4th Dept
2013]; People v Filer, 97 AD3d 1095 [4th Dept 2012]; People v
Boykins, 85 AD3d 1554 [4th Dept 2011]).
          As we held in People v Alvarez (20 NY3d 75, 81 [2012],

cert denied — US —, 133 S Ct 1736 [2013]), in relation to the

constitutional right to a public trial, “preservation of public

trial claims is still required.   Bringing a public trial

violation to a judge’s attention in the first instance will


                               - 8 -
                                                             No. 206

ensure the timely opportunity to correct such errors” (see also

People v Garcia, 95 NY2d 946, 947 [2000]; People v Nieves, 90

NY2d 426, 431 [1997]).   Therefore, defendant’s argument that he

need not preserve an issue that has constitutional significance

is unconvincing.2

          Any uncertainty could have easily been remedied with an

objection during opening statements, the witness testimony, or to

the jury charge. Requiring preservation will prevent unnecessary

surprise after the conduct of a complete trial.   Accordingly, we

hold that issues of non-facial duplicity, like those of facial

duplicity, must be preserved for appellate review. The Fourth

Department cases holding otherwise should not be followed.

          As to the lineup identification, any error in its
admission "must be deemed harmless beyond a reasonable doubt when
considered in light of the overwhelming evidence of defendant's
guilt" (People v Owens, 74 NY2d 677, 678 [1989]; accord People v
Harris, 80 NY2d 796 [1992].   Here, there were three eyewitnesses,
two of whom knew the defendant personally, ballistics evidence, a
confession to one of the witnesses an hour after the shooting,
and defendant’s strenuous efforts to avoid arrest.
          Finally, we reject defendant's claim that he was
improperly limited in establishing through police reports that
2
   We note this is not a case where defendant was tried without
an indictment at all or on a crime removed from anything for
which he was indicted, but rather one in which there is a lack of
clarity as to which of two incidents the relevant count of the
indictment refers to.

                               - 9 -
                                                                  No. 206

the People’s main witness, the victim's wife, described the
shooter to the police and that the description matched that of
the alleged accomplice in this case. As to limitations on cross-
examination of prosecution witnesses, it is well settled that “an
accused's right to cross-examine witnesses . . . is not absolute”
(People v Corby, 6 NY3d 231, 234-235 [2005]).         Because prior
statements are “often collateral to the ultimate issue before the
jury and bear only upon the credibility of the witness, [their]
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,
46 NY2d 74, 80 [1978], cert denied 442 — US — 910 [1979]).            The
trial court, acting in accordance with these principles, did not
abuse its discretion when it ruled that the police reports were
inadmissible extrinsic evidence on a collateral matter. Defendant
failed to demonstrate that the source of the information in the
reports was actually the victim’s wife herself.        The
officers/authors of the reports wrote that they were based on
second-hand information, and neither of them had ever spoken to
the victim’s wife personally.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *        *
Order affirmed. Opinion by Chief Judge Lippman. Judges Graffeo,
Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided November 25, 2014

                                 - 10 -
