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eBook details

• Title: People State New York v. Daniel Mcnab
• Author : Supreme Court of New York
• Release Date : January 16, 1990
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

[167 A.D.2d 858 Page 858] Memorandum: Defendant appeals from a judgment convicting him of one count each of rape in the first degree and assault in
the second degree; he was acquitted of six counts of rape in the first degree and two counts of sodomy. Defendant's rape conviction
must be reversed. Defendant was indicted on seven identical counts of rape by forcible compulsion, the complainant testified
at trial that nine acts of rape occurred, and the jury convicted him of only the seventh count of rape. It is impossible to
ascertain what alleged act of rape was found by the jury to have occurred, whether it was one of the seven for which he was
indicted, or indeed whether different jurors convicted defendant based on different acts. Reversal is required because the
jury may have convicted defendant of an unindicted rape, resulting in the usurpation by the prosecutor of the exclusive power
of the Grand Jury to determine the charges (see, People v Grega, 72 N.Y.2d 489, 495-496). Because defendant's right to be
tried and convicted of only those crimes charged in the indictment is fundamental and non-waivable, we reach this issue despite
the fact that it is unpreserved (see, People v Rubin, 101 A.D.2d 71, 77). Furthermore, appellate review is impossible without
implicating the prohibition against double jeopardy (see, People v Knight, 161 A.D.2d 668; People v Caliendo, 158 A.D.2d 531).
The same reasoning applies to the assault conviction, because the complainant testified to more than one act of assault, but
defendant was indicted on only one count.

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