In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.