Count Rendered Duplicitous by Trial Evidence Dismissed

The Fourth Department determined one count of an indictment had been rendered duplicitous by the trial evidence.  The indictment charged the theft of a bicycle.  However the trial evidence alleged the theft of two bicycles.  Therefore it is possible the jury was not unanimous in determining a specific bicycle had been stolen:

Because defendant’s right to be tried and convicted of only those crimes charged in the indictment is fundamental and nonwaivable” …, we review defendant’s contention despite his failure to preserve it. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Count five of the indictment charged defendant with stealing a bicycle and thus was not facially defective. At trial, however, the evidence established that two bicycles were stolen. Consequently, ” [r]eversal is required because the jury may have convicted defendant of an unindicted [petit larceny], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges’ . . . , as well as the danger that . . . different jurors convicted defendant based on different acts’ “… . People v Wade, 2014 NY Slip Op 04587, 4th Dept 6-20-14