The People, Respondent,v.Pernell A. Flanders, Appellant.

Brief

N.Y.March 25, 2015

To Be Argued By: JOHN J. RASP ANTE Time Requested: 10 Minutes APL-20 14-00019 Qtourt of ~ppeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs-Appellants-Respondents, -against- PERNELL A. FLANDERS, Defendant-Respondent. BRIEF FOR DEFENDANT-APPELLANT August 13,2014 JOHN J. RASP ANTE, ESQ. Attorney for Appellant Hotel Utica Executive Offices 1 02 Lafayette Street, Suite 203 Utica, New York 13502 Telephone: (212) 403-1000 TABLE OF CONTENTS Table of Authorities .......................................................................................... .ii uestlons resente .......................................................................................... 111 Q . p d ... Statement of Facts ................................................................................. ............. 1 Argument. ..................................................................................................... 10 Point I- The trial court's constructive amendment of the indictment created a real potential of prejudice to defendant requiring reversal ....................................... ... l 0 Point II - The admission of the shell casings, without establishing a proper foundation, was in error. ......................................................................................... 13 Point III- Trial counsel's failure to seek dismissal of the duplicitous counts of the indictment denied the defendant he effective assistance of counsel.. ....................... .15 Conclusion .................................................................................................... 17 'fABLE OF AUTHORITIES People v. Perez, 83 NY2d 269 (1994) ................................................................................... 11 People v. Keindl, 68 NY2d 410 (1986) ................................................................................. 11, 12 People v. Davis, 72 NY2d 32 (1988) ..................................................................................... 11 People v. Beauchamp, 74 NY2d 639 (1989) ......................................................................... 11 People v. Jiminez, 239 AD2d 360 (2"d Dep't. 1997) ............................................................. 11 People v. Corrado, 161 AD2d 658 (2"ct Dep't. 1990) ............................................................ 11 People v. Rosado. 64 AD2d 172 (I st Dep't. 1978) ................................................................ 12 People v. Klipfel, 160 NY 371 (1899) ................................................................................... 12 People v. Julian, 41 NY2d 340 (1977) .................................................................................. 14 People v. Steiner, 148 AD2d 980 (4th Dep't. 1989) .............................................................. 14 People v. Brown, 45 NY2d 852 (1978) ................................................................................. 15 People v. Baldi, 54 NY2d 137 (1981) ................................................................................... 15 People v. Rivera, 71 NY2d 705 (1988) ................................................................................. 15 People v. Dalton, 27 AD3d 779 (3'ct Dep't. 2006) ................................................................. 16 Statutes Criminal Procedure Law §200.30(1) ..................................................................................... 11 Criminal Procedure Law §200.70(1) ..................................................................................... 11 ii QUESTIONS PRESENTED Whether the trial court's constructive amendment of the indictment created a real potential of prejudice to defendant requiring reversal? The trial court amended the indictment over the defendant's objection. The Appellate Division affirmed. Whether the admission of the shell casings, without establishing a proper foundation, was in error? The trial court admitted the evidence over the defendant's objection. The Appellate Division affirmed. Whether trial counsel's failure to seek dismissal of the duplicitous counts of the indictment denied the defendant the effective assistance of counsel? The trial court did not address the issue. iii STATEMENT OF FACTS The defendant, Pernell Flanders [Flanders], stood charged by Indictment with Attempted Murder in the Second Degree, in violation of§§ 11 0/125.25(1 ), Assault in the First Degree, in violation of §120.10(1), Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law §265.03(1 )(b) and Reckless Endangerment in the First Degree, in violation of Penal Law §120.25 (r. 4-5). In their opening statement the People alleged that they intended to prove that on June 26, 2010, Flanders and John Thornington [Thorington] had a disagreement wherein Flanders believed that Thorington was involved in the assault of Flander's sister, Mahalia Flanders (r. 165-166). It was alleged that when Thorington observed Flanders driving his motor vehicle near the Thornington residence Thornington pulled his vehicle next to that of Flanders and got out to ask why he was driving by his house (r. 166). Flanders and his passenger, Willie Alexander, Jr. [Alexander] exited their vehicle and Alexander and Thorington engaged in a fist-fight (r. 167). While Thorington and Alexander were fighting, Flanders struck Thorington in the head with a .380 handgun (r. 168). After a verbal exchange Flanders is alleged to have shot Thorington with the .380 handgun (r. 168). Flanders is then alleged to have returned to his vehicle, armed himself with a .22 caliber rifle, and shot Thorington a second time (r. 168). The People informed the jury that they intended to prove that Flanders intended to cause the death of Thorington by means of a deadly weapon to wit: a .380 semi-automatic pistol and .22 rifle (r. 169-170); the defendant did in fact possess a loaded firearm, that being the .380 semi-automatic pistol and a .22 caliber rifle, with the intent to use the same unlawfully against Thorington and Tiffany Harrison [Harrison], a passenger (r. 169-170); and that the defendant fired both the .380 and 22 rifle in the direction of Harrison (r. 169-170). It is not alleged that any firearms were recovered. 1 MarkMinasi Mark Minasi [Minasi] testified that he was operating his taxicab near the intersection of Brinkerhoff and Leah when he heard "four pops" that he believed were .22 caliber gunshots (r. 175-176). Minasi testified that as he approached the intersection he observed an SUV with its doors open and a smaller car behind it (r. 176). According to Minasi, from 150 feet away he observed a black female and black male outside the car and it appeared as though she was arguing with him (r. 176). As Minasi arrived on the scene the smaller car with two black males drove off (r. 177). The female told Minasi that her boyfriend had just been shot (r. 178). Minasi attempted to follow the car that left, but was unable to (r. 178). Minasi testified that the smaller car was blue, but acknowledged that he originally told the police and signed a statement that the car was light tan (r. 180). Gregory Snyder Gregory Snyder [Snyder] testified that he just arrived at his residence on Leah Street, when he heard two very loud gunshot and then five or six lesser gunshots in rapid succession (r. 184). Snyder testified that based on his military experience he believed the first set of shots was from a 9 millimeter and the second set of shots from a .22 caliber (r. 185). According to Snyder he observed a black sedan in the road facing east and a white SUV facing west, doors open (r. 185). Snyder testified there was a black female and black male near the SUV - the black male was bleeding (r. 188). Snyder called 9-1-1 (r. 187). Snyder stated that the dark sedan drove toward him (r. 186). When the police arrived Snyder gave a statement indicating that he saw at least three people in the car, and testified that he still believes there were at least three people in the car (r. 190). 2 Howard Brodt Howard Brodt [Brodt], a Utica Police Officer, testified that was dispatched to the intersection of Leah and Brinkerhoff (r. 192). Upon arrival Brodt observed a white SUV parked in the roadway (r. 192) and a black male and black female approached his vehicle (r. 122). According to Brodt the black male appeared to have been shot several times and an ambulance was requested (r. 193). It was the testimony of Brodt that he had a conversation with Thorington and Harrison and they proved him with the name of the shooter, but he could not recall the name he was given (r. 194). Brodt later admitted that Thorington did not tell him the name of the shooter, but he got the information from Harrison (r. 202). Brodt provided the description of the suspect to dispatch and a BOLO was issued (r. 197). Brodt testified that, with the assistance of other officers, the area was cordoned off to search for physical evidence (r. 200-201) Brodt initially testified to locating "at least 11" shell casings, but admitted that his report indicated eight shell casings, "five .22 caliber and three .380 shell casings" (r. 200). Peter Scalise Peter Scalise [Scalise], a Utica Police Officer, testified that he was night supervisor of the Criminal Investigations Division (r. 206). Scalise testified that the Utica Police Department is equipped with 9-1-1 capacity and all calls received through dispatch are recorded (r. 207). According to Scalise he reviewed the 9-1-1 database for calls related to this incident, located two calls and copied them to a DVD (r. 209). Vito Sinisgalli 3 Vito Sinisgalli [Sinisgalli], a Utica Firefighter, testified that he worked the 9-1-1 center on the night in question (r. 212). After listening to the recording outside the presence of the jury, Sinisgalli testified that he recognized the voice as his (r. 212). Over defense objection the 9-1-1 recording was published to the jury (r. 212-213). Sinisgalli acknowledged that he had no way of verifying the information the caller gave him and essentially took her at her word (r. 215-216). Philip Dalton Philip Dalton [Dalton], a Utica Police Officer, testified that he was dispatched to intersection of Leah and Brinkerhoff (r. 217). When Dalton arrived he observed Officer Brodt talking with Thorington and it appeared that Thomington was bleeding from the chin (r. 217). Dalton testified that he was directed to canvass the area and in doing so located some casings, put some cones down and took photographs (r. 217-218). Dalton further testified that he did not observe anyone retrieve the items and place them in evidence bags (r. 219). According to Dalton he spoke with Thorington and Harrison and they indicated who was responsible for the injury to Thorington (r. 220). Dalton testified that he relayed that information to Brodt (r. 220). Angela Funicello Angela Funicello [Funicello ], a Utica Police Officer, assigned as an evidence technician testified that she was originally dispatched to the hospital and later responded to the intersection of Leah and Brinkerhoff to take pictures and collect evidence (r. 222). According to Funicello there were cones already in place when she arrived and she was told where it was believed the altercation took place (r. 227). Funicello subsequently photographed shell casings and placed them in an evidence bag (r. 227). Funicello acknowledged that she did not make note of the caliber or mark the shell casings that were recovered from the scene (r. 229). Funicello returned 4 to the hospital to photograph Thorington's injuries (r. 231). The photographs were admitted by stipulation and published to the jury (r. 225-233). The defense objected to the admission of the shell casings as the evidence bag had been opened and Funicello was unable to testify that the shell casings were the same ones that she recovered (r. 235). Although the Assistant District Attorney stated that he would not offer the shell casings at that time, the Judge himself questioned the witness, laying a foundation and asked if the People wanted to the renew their offer (r. 237-238). The People renewed their offer to admit the shell casings and the evidence was admitted over the defense objection (r. 238). David Armstrong David Armstrong [Armstrong], a Utica Police Officer, testified that he is assigned as an investigator on the night crew of the Criminal Investigation Division. Armstrong testified that he was advised by Investigator Cardona that "a couple of suspects had developed" and they were Flanders and Alexander (r. 240). Armstrong testified that he sent out a department wide e-mail confirming the information and constructed two photo arrays (r. 241 ). Willie Alexander Willie Alexander [Alexander], was called to testifY by the People (r. 242). Alexander testified that he is a friend of Flanders (r. 242). Alexander further testified that he did not recall the night in question as he was "highly intoxicated" (r. 244). Alexander could not identify a photograph of Flanders' motor vehicle (r. 245), testified that he never rode in Flanders' vehicle (r. 246), testified he never had a fist-fight with John Thorington (r. 246) and testified that he was not at the scene of the shooting (r. 246). Amed Cardona 5 Amed Cardona [Cardona], a Utica Police Officer, testified that he was assigned as an investigator and was dispatched to the shooting at Leah and Brinkerhoff (r. 248-249). Cardona responded to the scene, spoke to the officers and then proceeded to the hospital (r. 249). According to Cardona when he arrived at the hospital he spoke with Harrison, the girlfriend of Thorington and learned that there had been a fight earlier in the involving Flanders' sister Mahalia (r. 251). Cardona further indicated that he obtained photographs of Flanders' motor vehicle, a blue Pontiac Bonneville (r. 252). Cardona testified that he developed Flanders as a suspect after hearing the BOLO and speaking with Thorington and Harrison (r. 260-261). Cardona acknowledged Thornington and Harrison were the only two who identified Flanders (r. 261). Cardona further admitted that after reviewing a video of Flanders, which included Flanders signing his name and initialing twice, Flanders was left handed (r. 265). Tiffany Harrison Tiffany Harrison [Harrison] testified that she was involved in the earlier altercation involving the sister of Flanders (r. 269-270; 284290). Harrison then went to her Mother's house where she met her live-in boyfriend, Thorington (r. 270, 290). Thorington and Harrison left the Mother's residence about midnight, traveling in a white SUV (r. 271). As Thorington and Harrison drove up the street they noticed Flanders driving down the street with his lights off (r. 271) Harrison testified that she !mew Flanders and identified him in the courtroom (r. 271 ). According to Harrison, Thorington backed his vehicle up and approached Flanders who was still seated in his vehicle (r. 272). Thorington and Flanders had a conversation lasting about "three minutes" (r. 295). Thorington asked Flanders why he was on his street (r. 272). Flanders asked Thorington why he cut his sister's face (r. 272). Thorington denied knowing what Flanders was talking about (r. 272). Harrison testified that Flanders and Alexander got out of the car (r. 272). 6 Alexander was wearing black gloves (r. 272), but Flanders did not have any gloves on (r. 276). Harrison testified that she had seen Alexander once before, but did not know his name (r. 273). Alexander punched Thorington in the face and the two began to fight, with Thorington getting the better of Alexander (r. 273). According to Harrison, Flanders came to the aid of Alexander, striking Thorington in the head with a small black handgun (r. 275). Flanders was holding the handgun in his right hand (r. 297). After a verbal exchange, including Thorington taunting Flanders, "Shoot me. If you're going to shoot me, you're dead" (r. 298) Flanders fired the weapon (r. 275-276). Harrison did not know if Thorington was hit (r. 275-276). Harrison retreated behind the passenger side door (r. 275). Harrison testified that Flanders, after firing the handgun, returned to his vehicle, pulled out a rifle with a "skinny barrel" and fired 4 or 5 shots from his hip (r. 277). Harrison was in the back seat of the vehicle searching for a phone when the second series of shots was fired (r. 277) and never left the car until the shooting was over (r. 301). Thorington had positioned himself behind the driver's side door (r. 278). Flanders and Alexander then returned to their car and drove off (r. 280). Harrison testified that she was near Thorington when the first shots were fired, but not the second set of shots (r. 282). According to Harrison she called 9-1-1 and reported that Thorington was shot by Flanders (r. 282). Harrison acknowledged that she spoke with the responding officers and also Inv. Cardona (r. 284). John Thorington John Thorington [Thorington], testified that he had known Flanders for 12 or 13 years and that he had a prior relationship with Flanders's sister Mahalia (r. 304). Thorington described his relationship with Flanders as "friendly" (r. 306). Thorington acknowledge receiving information of the earlier altercation between Harrison and her family against Mahalia Flanders (r. 311 ). Thorington testified that he observed Flanders driving near his residence and stopped to 7 ask Flanders "what he doing in my area" (r. 312). According to Thorington, Flanders jumped out of his car first then Thorington jumped out of his (r. 343). According to Thorington Flanders had a gun in his hand (r. 344) and he was wearing "bone color" white latex gloves like the kind worn at hospitals (r. 312). Thorington testified that he did not know Alexander, "but had seen him around" (r. 313). Thorington describe the gun in Flanders' hand as "chrome", maybe a .25 or something", a "pistol" (r. 314-315,345). According to Thorington he was having a conversation with Flanders regarding the earlier assault of Flanders' sister, when he and Alexander "got into a scuffle" (r. 316). While Thorington was fighting with Alexander, Flanders struck Thorington in the head with the handgun, causing a "scratch" on his head (r. 316). Thorington admitted to punching Flanders and parties faced off about ten feet apart (r. 318). Thorington testified that he heard two shots, but did not know he was shot (r. 319). According to Thorington Flanders was shooting the pistol with his right hand (r. 350). After firing the weapon, Flanders returned to his vehicle and pulled out a rifle and started shooting again at him (r. 320). Flanders and Alexander returned to their vehicle and drove off (r. 321 ). Thorington testified that when the police arrived he just told them that he got shot "that's about it" (r. 322). Thorington did not tell the police who shot him or give a description of the car (r. 352). Thorington identified photographs of his injuries and testified to his hospitalization and treatment (r. 322-327, 354-357). Dr. John Rubin Dr. Jolm Rubin [Rubin] testified that he an emergency department physician, employed at St. Elizabeth's Hospital in Utica. Rubin testified that he was on duty on the night Thorington was brought in for treatment of gunshot wounds (r. 358-360). According to Rubin, Thorington was "very awake, alert and appropriately calm when he spoke with him (r. 288). Rubin testified 8 that the bullet wound that Thorington sustained to his neck was serious and Thorington was transferred to Upstate Medical in Syracuse (r. 362). Daniel Sullivan Daniel Sullivan [Sullivan], testified that he is employed in the Oneida County pistol licensing office (r. 365). According to Sullivan he ran a check and Flanders does not have pistol permit in New York State. The People rested (r. 366). The defendant moved for trial order of dismissal (r. 366). The Court denied the defendant's motion (r. 367). The defense rested (r. 367). 9 ARGUMENT I. THE TRIAL COURT'S CONSTRUCTIVE AMENDMENT OF THE INDICTMENT CREATED A REAL POTENTIAL OF PREJUDICE TO DEFENDANT REQUIRING REVERSAL. The defendant, Pernell Flanders [Flanders], stood charged by Indictment with Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree and Reckless Endangerment in the First Degree. The indictment specifically alleges the defendant's use of both a .380 semi-automatic pistol and a .22 caliber rifle in committing the Assault in the First Degree and Reckless Endangerment in the First Degree (r. 4- 5). The People in their opening statement, (r. 168-170) proof at trial (r. 275-277, 319-320) and closing argument (r. 388-391), alleged the defendant's used both the .380 semi-automatic pistol and a .22 caliber rifle in support of the charges of Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree and Reckless Endangerment in the First Degree. The Court gave a jury instruction that mirrored both the indictment and the trial proof, stating that in order to find the guilty the People were required to prove the defendant's use of a .380 semi-automatic pistol and a .22 caliber rifle (r. 409-410,413- 414). During deliberations the jury sent out a note, identified as "Court Exhibit Number 3", seeking clarification, which read: "In the to wit section for Counts 2 and 4, must we believe both guns were involved and fired by the defendant, 380 semi-automatic pistol and 22 rifle" (r. 425). 10 In response the Court instructed the jury "I don't think there's any requirement that the District Attorney has to prove both guns were involved. It can be either or both" (r. 425). The defendant maintains that this constructive change of the indictment was prejudicial error. The error was properly preserved by objection (r. 425, 429). CPL §200.70(1) provides, in part, that "[a]t any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like." Two significant limitations on the court's power to grant such an amendment are, first, that the amendment must not change the prosecution's theory as reflected by the grand jury evidence and, second, the amendment must not tend to prejudice the defendant on the merits. People v. Perez, 83 NY2d 269, 274 (1994). Here, the Court's supplemental jury instruction prejudiced the defendant, as the amendment constructively rendered the counts of Assault in the First Degree and Reckless Endangerment in the First Degree duplicitous. Pursuant to statute each count of an indictment may only charge one offense. CPL 200.30(1). Where an offense is made out by the commission of one act, that act must be the only offense alleged in that count of the indictment. People v. Keindl, 68 NY2d 410, 417 (1986). A count which charges more than one offense is duplicitous. People v. Davis, 72 NY2d 32, 38 (1988); People v. Keindl, 68 NY2d at 417-418. Even if a count is not duplicitous on its face, it can be rendered duplicitous by trial testimony indicating that the charge includes more than one act per count. People v. Beauchamp, 74 NY2d 639, 640- 641 (1989); People v. Jiminez, 239 AD2d 360 (2nd Dep't. 1997); People v. Corrado, 161 AD2d 658, 659 (2nd Dep't. 1990). The test for duplicity is whether the count charges more than one 11 crime: "Could the defendant be convicted of either one of the crimes charged therein, should the district attorney elect to waive the other?" People v. Rosado, 64 AD2d 172, 177 (I st Dep't. 1978), quoting, People v. Klipfel, 160 NY 371, 374 (1899); See also, Donnino, Practice Commentaries, CPL §200.30 (McKinney 2012). In applying the supplemental instruction to the charge of Assault in the First Degree, the jury was permitted to find that the defendant caused serious physical injury, if the defendant shot Thorington with the .380 pistol or if the defendant shot Thorington with the .22 caliber rifle or if the defendant shot Thorington with both the .380 pistol and the .22 caliber rifle. The error created a real potential for prejudice, as the Court failed to inform the jury that they had to be unanimous as to one of the weapons. The rule against duplicitous pleadings ensures the reliability of the unanimous verdict which is required under both the United States Constitution and New York Statutory Law. "If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses." People v. Keindl, 68 NY2d 410, 417-418 (1986). For example 6 jurors may have been of the opinion that the defendant caused serious physical injury by shooting Thorington with the .380 pistol, but had a reasonable doubt that the defendant fired or caused serious injury with the .22 caliber rifle. Alternatively, the 6 remaining jurors may have been of the opinion that the defendant caused serious physical injury to Thorington by shooting him with the .22 caliber rifle, but due to the inconsistent testimony regarding the description of the weapon (r. 275, 314-315) or testimony that the defendant was left-handed (r. 265) and the 12 shooter right-handed (r. 297, 350) they had a reasonable doubt whether the defendant fired the .3 80 pistol. This same prejudicial instruction also applied to the reckless endangerment charge where the jury was informed could find the defendant caused a grave risk of death by his firing the .380 pistol or the .22 caliber rifle in the direction of Tiffany Harrison. Here, some of the jurors may have been of the opinion that there was defendant did not fire the .380 or .22 rifle or that during either of the two incidents Harrison was not in harms-way. Harrison did offer testimony that she was in near Thorington when the first shots were fired, but was in the back seat searching for a phone when the shooter fired the second series of shots (r. 277, 282). Once again the error created a real potential for prejudice as the Court failed to inform the jury that they had to be unanimous as to one of the weapons. Upon review of all the facts and circumstances revealed by the record, including the indictment, opening statement and proof at trial, the constructive amendment of the indictment made it virtually impossible to determine the particular acts to which the jury reached a unanimous verdict, if they reached one at all. People v. Keindl, 68 NY2d at 421. The constructive amendment to the indictment created a real potential of prejudice to defendant which requires the reversal of his judgment of conviction. II. THE ADMISSION OF THE SHELL CASINGS, WITHOUT ESTABLISHING A PROPER FOUNDATION, WAS IN ERROR. To be admissible, any piece of real evidence must be shown to accurately portray a relevant and material element of the case. When real evidence is purported to be the actual object associated with a crime, the proof of accuracy has two elements. The offering party must 13 establish, first, that the evidence is identical to that involved in the crime; and, second, that it has not been tampered with. People v. Julian, 41 NY2d 340,342-43 (1977). Here, it was the testimony of Angela Funicello, a Utica Police Officer, assigned as an evidence technician, that she photographed shell casings and placed them in an evidence bag (r. 227). FuniceUo acknowledged that she did not note the caliber or mark the shell casings that were recovered from the scene (r. 229). The defense objected to the admission of the shell casings as Funicello admitted that she was unable to testifY that the shell casings were the same ones that she recovered (r. 235). Although the People agreed not to offer the shell casings at that time, the Court questioned the witness in attempt to establish a foundation and then invited the People to renew their offer (r. 238). The People renewed their offer and the Court received the shell casings over the defense objection (r. 238). This was error. Where an item of real evidence is sought to be introduced the offering party must show that the item is identical to that involved in a crime and that it has not been tampered with. People v. Julian, 41 NY2d at 342-343. "[T]he accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence". People v. Steiner, 148 AD2d 980 (4'h Dep't. 1989). Here, the witness admitted that she did not make any notations as to the caliber of the shell casings that she recovered, the evidence bag that contained the shell casings had been opened, and she could not testifY that they were the same shell casing that she recovered (r. 235). The defendant maintains that Court's inquiry regarding the number of casings that witness recovered failed to establish the identity of the specific shell casings that were being offered and their unchanged condition. The admission of the shell casings without establishing their authenticity was not harmless error, as the jury requested information regarding the type of bullets Thorington was shot with (r. 425-431). 14 The Court's admission of the shell casings, over the defense objection, was in error. III. TRIAL COUNSEL'S FAILURE TO SEEK DISMISSIAL OF THE DUPLICITOUS COUNTS OF THE INDICTMENT DENIED THE APPELLANT THE EFFECTIVE ASSISTANCE OF COUNSEL. The right to the effective assistance of counsel is guaranteed by both the State and Federal Constitutions (N.Y. Const., Art. I, §6; U.S. Const., 6th Amendment), thus the defendant appellant respectfully submits that under all the circumstances presented by this case he did not receive adequate or effective representation in any meaningful sense of those words by his prior counsel. Since meaningful and adequate representation requires that counsel guard against inadmissible evidence and that counsel understand basic principles of criminal law. People v. Brown, 45 NY2d 852 (1978). The following facts and law applicable thereto are set forth to show that prior counsel's failure to investigate all appropriate substantive defenses, make the appropriate motions and his failure to master all of the facts relative thereto, resulted in the deprivation of defendant appellant's right to effective assistance of counsel. The standard of review applied to a claim of ineffective assistance of counsel is whether under the circumstances of the case, the defendant received meaningful representation. People v. Baldi, 54 NY2d 137 (1981). Although the failure of counsel to make a specific motion does not per se compel a finding that the defendant received less than effective assistance of counsel, such failure will constitute ineffective assistance when the defendant establishes that no strategic or other legitimate explanation exists for counsel's failure to do so. See, People v. Rivera, 71 NY2d 705 (1988). 15 The defendant maintains that the charges of Attempted Murder in the Second Degree, Assault in the First Degree and Reckless Endangerment were rendered duplicitous by the evidence at trial (r. 275-277, 319-320). A count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict. People v. Dalton, 27 AD 3d 779, 781 (3'd Dep't. 2006). At trial Thorington testified that Flanders shot him with the pistol (r. 319). Flanders returned to his vehicle and pulled out a rifle and started shooting at him again (r. 320). Harrison testified that Flanders, after firing the handgun at Thorington, returned to his vehicle, pulled out a rifle with a "skinny barrel" and fired 4 or 5 shots from the second firearm (r. 277). The testimony of the People's witnesses tended to establish the commission of multiple criminal acts. Here, defense counsel had everything to gain and nothing to lose by making a motion at the close of the People's proof to dismiss on duplicity grounds. There is no legitimate strategic or tactical explanation for defense counsel failure to move to dismiss the most serious counts of the indictment and instead expose the defendant to conviction by a less than unanimous jury verdict. For all of the above, the defendant was prejudiced by former counsel's ineffectiveness and there exists more than a reasonable probability that, but for counsel's unprofessional errors and omissions, the results of the prior proceedings would have been vastly different. The prejudice that has been caused to the defendant as a result has denied him the right to effective assistance of counsel under the constitutions of both this State and the United States. Based on these facts, the conviction of Pernell Flanders must be reversed. 16 CONCLUSION For the aforementioned reasons the Appellant respectfully requests that this court vacate his judgment of conviction and remit this matter back to the local court or in the alternative modify the sentence imposed. Dated at Utica, New York August 13,2014 17 Attorney for Appellant Hotel Utica Executive Offices 102 Lafayette Street, Suite 203 Utica, New York 13502 Tele.: 315.223.4122