The Fourth Department reversed defendant’s conviction on several counts charging sexual offenses because the jury instructions allowed consideration of theories not alleged in the indictment or bill of particulars. Therefore it was not possible to determine whether an uncharged theory was a basis for the jury’s verdict:
Although defendant did not object to the court’s instructions and thus did not preserve his contention for our review, we conclude that “preservation is not required” …, inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged,” as limited by either the bill of particulars or the indictment itself … . Where the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory … . Indeed, such an error cannot be deemed harmless because it is impossible for an appellate court reviewing a general verdict to ascertain on which theory the jury convicted the defendant or whether the jury was unanimous with respect to the theory actually charged in that count … . People v Graves, 2016 NY Slip Op 00853, 4th Dept 2-5-16
CRIMINAL LAW (JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)/JURY INSTRUCTIONS (INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)