In People v Boykins (2011 NY Slip Op 04838 [6/10/11) the Appellate Division, Fourth Department reversed a conviction for attempted murder in the second degree and dismissed the count in the indictment charging defendant with that crime, where that count referred to a single attempt to cause the death of the intended victim by shooting him, but the People presented evidence at trial establishing that there were two distinct shooting incidents that may constitute the crime of attempted murder in the second degree. As the Court explained
"Reversal [of that conviction and dismissal of the ninth count] is required because the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges" (People v McNab, 167 AD2d 858, 858; see People v Comfort, 31 AD3d 1110, 1111, lv denied 7 NY3d 847). In addition, because the trial evidence establishes two distinct acts that may constitute attempted murder, "[i]t is impossible to ascertain . . . whether different jurors convicted defendant based on different acts" (McNab, 167 AD2d at 858; see People v Jacobs, 52 AD3d 1182, 1183, lv denied 11 NY3d 926). Although defendant failed to preserve his contention for our review, "[p]reservation is not required 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 Bradford, 61 AD3d 1419, 1420-1421, affd 15 NY3d 329), as is the right to a unanimous verdict (see CPL 310.80).
As quoted above McNab violations are one of the few that are reviewable as a meeter of law absent objection and preservation.
Howard Broder, the excellent appellate attorney who successfully represented Mr. McNab and first raised this issue (and many other), has retired and is moving to Philadelphia. But Howard's legal legacy still grows.