The decision of the Appellate Division, Fourth Department, in People v Kirk (2012 NY Slip Op 04461 [4th Dept 6/8/12]) is another reminder of how unsettling it is for appellate counsel to have an appellate court grant relief on a ground not raised by counsel, but in the appellant’s pro se supplemental brief:
Defendant’s remaining contentions are raised in his pro se supplemental brief. Although defendant’s contention that the indictment was duplicitous on its face is not preserved for our review (see People v Becoats, 17 NY3d 643, 650-651), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see People v Bracewell, 34 AD3d 1197, 1198). .. We conclude.. that counts 2-7, 19-20, 22, 24 and 26-27 “were rendered duplicitous by the trial evidence tending to establish the commission of [multiple] criminal acts during the time period[s] specified [with respect to those counts]” (People v Bennett, 52 AD3d 1185, 1186, lv denied 11 NY3d 734; see generally People v Keindl, 68 NY2d 410, 417-418, rearg denied 69 NY2d 823). We therefore further modify the judgment by reversing those parts convicting defendant of criminal sexual act in the first degree under counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20, 22 and 24 and sexual abuse in the second degree under counts 7 and 26-27 of the indictment and dismissing those counts without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury (see Bennett, 52 AD3d at 1186; Bracewell, 34 AD3d at 1198-1199).
The danger in failing to raise non-frivolous, but unpreserved error it that you might one day have to write to your client about the issue he won that you did not raise.
