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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Benjamin AYALA, Appellant.


Decided: May 15, 2019

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ. Mark Diamond, New York, NY, for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, Dmitriy Povazhuk, and Jill Oziemblewski of counsel), for respondent. Paul Skip Laisure, New York, NY, former appellate counsel.


Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated January 23, 2007 (People v. Ayala, 36 A.D.3d 827, 829 N.Y.S.2d 154), affirming a judgment of the Supreme Court, Kings County, rendered January 11, 2005.

ORDERED that the application is denied.

The appellant was convicted of three counts of burglary in the first degree.  Contrary to the appellant's contention, the counts charging him with burglary in the first degree were not multiplicitous (see People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495;  People v. Campbell, 120 A.D.3d 827, 991 N.Y.S.2d 341).  The first and third counts of the indictment were not multiplicitous because they involved separate subsections of the relevant burglary statute (Penal Law § 140.30[2], [3] ) and, furthermore, required proof of separate and distinct conduct involving different victims.  The separate subsections of the burglary statutes that provide different ways in which burglary may be committed constitute separate offenses (see CPL 200.30[2];  People v. Griswold, 174 A.D.2d 1038, 572 N.Y.S.2d 202;  People v. Davis, 165 A.D.2d 610, 569 N.Y.S.2d 999).

The first and second counts of the indictment both charged the appellant under Penal Law § 140.30(2) and resulted in convictions of the same subsection of the burglary statute.  Nevertheless, the counts were not multiplicitous, since they involved physical injury to different victims with different methods of injury, occurring at different times and places during the criminal transaction (see People v. Ramirez, 89 N.Y.2d 444, 654 N.Y.S.2d 998, 677 N.E.2d 722;  cf. People v. Rodrigues, 74 A.D.3d 1818, 902 N.Y.S.2d 750;  People v. Aarons, 296 A.D.2d 508, 745 N.Y.S.2d 487).  Multiplicity does not exist when each count requires proof of an additional fact that the other does not (see People v. Henry, 119 A.D.3d 607, 988 N.Y.S.2d 686;  People v. Olson, 116 A.D.3d 427, 982 N.Y.S.2d 760), and a conviction of one count would not have been inconsistent with acquittal on the other (see People v. Henry, 119 A.D.3d 607, 988 N.Y.S.2d 686).

As the claim of multiplicity has no merit, trial counsel was not ineffective for failing to raise it (see People v. McLoyd, 34 A.D.3d 498, 824 N.Y.S.2d 124), and the appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987;  People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883).

The appellant's remaining contentions are without merit.


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