People v. Allen, 25 N.Y.3d 444 (2015)
A duplicity argument based on trial evidence, where the count is not duplicitous on the face of the indictment, must be preserved for appeal by timely objection.
Summary
Allen was convicted of murder and attempted murder. The attempted murder charge became potentially duplicitous at trial when evidence of two separate incidents involving the defendant pointing a gun at the victim emerged. The New York Court of Appeals held that a duplicity argument based on trial evidence, as opposed to a facially duplicitous indictment, must be preserved with a timely objection to be raised on appeal. Allen’s failure to object during the trial to the potential duplicity of the attempted murder charge waived his right to raise the issue on appeal. The Court also found that the lineup identification, even if improperly admitted, was harmless error given the overwhelming evidence of guilt.
Facts
On June 22, 2008, Allen attempted to shoot the victim but the gun misfired. Approximately ten minutes later, Allen shot the victim, resulting in his death. The victim’s wife witnessed some of the events and identified Allen in a police lineup. Ballistics evidence linked the bullet recovered from the scene to the bullet recovered from the victim’s body. Allen was charged with murder and attempted murder. During the trial, evidence of both the initial misfire and the later shooting was presented.
Procedural History
Allen was convicted on all counts in Supreme Court. The Appellate Division modified the judgment by directing that all terms of imprisonment run concurrently, and affirmed the conviction as modified, holding that the duplicity argument was unpreserved and that any error in denying the motion to suppress the lineup identification was harmless. Allen appealed to the New York Court of Appeals.
Issue(s)
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.
Holding
No, because issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review to prevent unnecessary surprise after the conduct of a complete trial.
Court’s Reasoning
The Court of Appeals reasoned that to allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse. Defendants could strategically choose not to object at trial and then raise the issue on appeal if convicted. Quoting People v. Becoats, 17 N.Y.3d 643, 651 (2011), the Court stated, “To expand the definition of ‘mode of proceedings’ error too freely would create many such anomalous results.” The Court emphasized that any uncertainty regarding the basis of the attempted murder count could have been easily remedied with an objection during opening statements, witness testimony, or to the jury charge. The Court also held that the admission of the lineup identification, even if erroneous, was harmless beyond a reasonable doubt because of the “overwhelming evidence of defendant’s guilt,” including three eyewitnesses, ballistics evidence, a confession, and Allen’s attempts to avoid arrest. Regarding the limitation on cross-examination, the Court noted that the trial court did not abuse its discretion in ruling that the police reports were inadmissible extrinsic evidence on a collateral matter, because the reports were based on secondhand information and the source of the information was not directly from the victim’s wife. Citing People v. Owens, 74 N.Y.2d 677, 678 (1989), the court stated that the lineup idenfitication must be deemed harmless beyond a reasonable doubt when considered in light of the overwhelming evidence of defendant’s guilt.