The opinion
Garni and Lindley, JJ.
(dissenting in part). We respectfully disagree with the conclusion of our colleagues that we should not review defendant’s duplicity contention as a matter of discretion in the interest of justice. Inasmuch as defense counsel *1702 failed to move to dismiss the first and second counts of the indictment on duplicity grounds, we also disagree with the majority’s conclusion that defendant received effective assistance of counsel. We therefore dissent in part.
Defendant contends that count one of the indictment, charging him with predatory sexual assault against a child (Penal Law § 130.96), was rendered duplicitous by the evidence at trial. That count alleges underlying conduct constituting criminal sexual act in the first degree (§ 130.50 [4]). Because the People charged defendant with predatory sexual assault of a child based on a single-act theory, the rule prohibiting duplicity applies (see People v Keindl, 68 NY2d 410, 420-421 [1986], rearg denied 69 NY2d 823 [1987]). Although count one is not duplicitous on its face inasmuch as it alleges a single act (see CPL 200.50 [3]-[7]; Keindl, 68 NY2d at 417-418 ), that count was rendered duplicitous by the testimony of the victim tending to establish the commission of multiple criminal acts during the period of time specified in count one (see People v Bracewell, 34 AD3d 1197, 1198 [2006]; People v Dalton, 27 AD3d 779, 781 [2006], lv denied 7 NY3d 754 , 811 [2006]; People v Jelinek, 224 AD2d 717, 718 [1996], lv denied 88 NY2d 880 [1996], cert denied 519 US 900 [1996]). Based on that evidence, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act” (Dalton, 27 AD3d at 781 ). Thus, because count one was rendered duplicitous as a matter of well-settled law but defense counsel failed to move to dismiss that count, the question becomes whether this Court should exercise its discretion to review defendant’s contention in the interest of justice (see CPL 470.15 [6] [a]).
The duplicity principle is designed to protect the accused against successive prosecutions in violation of the Double Jeopardy Clauses of the US and NY Constitutions (see generally People v First Meridian Planning Corp., 86 NY2d 608, 615 [1995]). “State and Federal constitutional prohibitions against double jeopardy are deemed so fundamental that they are preserved despite the failure to raise them at the trial level” (People v Michallow, 201 AD2d 915, 916 [1994], lv denied 83 NY2d 874 [1994]). The prohibition against duplicity contained in CPL 200.30 (1) is essential because it “furthers not only the functions of notice to a defendant and of assurance against double jeopardy, but [it] also ensures the reliability of the unanimous verdict” (Keindl, 68 NY2d at 418 ). We recognize that this case does not present a double jeopardy problem per se. Nonetheless, the fundamental and compelling reasons behind the duplicity principle present interest of justice and constitutional *1703 concerns that warrant our review (see People v Jones, 165 AD2d 103, 109 [1991], lv denied 77 NY2d 962 [1991]). Those reasons transcend the nature of any particular crime or the individual characteristics of any particular defendant. Indeed, they are fundamental to our principles of justice. In light of the indisputable merit in defendant’s duplicity contention, we conclude that it should be reached — as this Court and others have previously done under similar circumstances (see People v Bennett, 52 AD3d 1185, 1186 [2008], lv denied 11 NY3d 734 [2008]; Bracewell, 34 AD3d at 1198 ; see also Jones, 165 AD2d at 109 ).
Although defendant limited his duplicity contention to count one of the indictment, it is readily apparent that count two of the indictment, charging defendant with the single-act crime of sexual abuse in the first degree (Penal Law § 130.65 [3]), was also rendered duplicitous by the trial evidence.
Defendant contends in his pro se supplemental brief that he was denied effective assistance of counsel based upon, inter alia, defense counsel’s failure to move to dismiss the first count of the indictment as duplicitous. “A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” (People v Caban, 5 NY3d 143, 152 [2005]; see People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Flores, 84 NY2d 184, 188-189 [1994]). To establish ineffective assistance of counsel, a defendant must “demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient performance (People v Rivera, 71 NY2d 705, 709 [1988]). Here, there can be no doubt that a motion to dismiss counts one and two on duplicity grounds would have been successful and resulted in the dismissal of those counts. We find no legitimate strategic or tactical explanation for defense counsel’s failure to move to dismiss the two most serious counts of the indictment and instead expose defendant to conviction and possible further subsequent prosecution on one or more of the unspecified criminal sexual acts, as well as the risk of a less than unanimous jury verdict on each of the two duplicitous counts. While the majority concludes that a post-trial application and a “ ‘ “complete record” ’ ” is necessary for a thorough evaluation of defendant’s contention concerning ineffective assistance of counsel, we see no need for such process inasmuch as the trial evidence rendered counts one and two patently duplicitous and thus provided a “clear-cut and completely dispositive” basis for their dismissal (People v Turner, 5 NY3d 476, 481 [2005]). We therefore conclude that, with respect to counts one and two, defendant was denied the right to effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
*1704 We would therefore modify the judgment as a matter of discretion in the interest of justice and on the law by reversing those parts convicting defendant of predatory sexual assault against a child under count one of the indictment and sexual abuse in the first degree under count two of the indictment and dismissing those counts of the indictment without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury. Present — Smith, J.P, Peradotto, Garni, Lindley and Sconiers, JJ.