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Indictments And The Grand Jury: Multiplicitous and Duplicitous Counts


People v. Alonzo

New York Court of Appeals 2011 NY Slip Op 01363

February 24, 2011

Issue : Whether an indictment alleging four counts of sexual abuse is multiplicitous where defendant allegedly attacked two victims at the same time and place and fondled the breasts and buttocks of each victim and defendant was charged with two counts of alleged forcible hand to breast contact and two counts of hand to buttocks.

Holding : Thus, the indictment as returned by the grand jury was multiplicitous (accord, State v Woellhaf, 105 P3d 209 [Colo 2005]). The People err in suggesting that it would have been duplicitous to include the groping of each victim’s breasts and buttocks in a single count. Neither of our leading cases on duplicity, Keindl and Bauman, involves a single, uninterrupted criminal act. In Keindl, several counts of an indictment were held duplicitous when they alleged separate acts of sodomy or sexual abuse occurring on various occasions over a period of weeks or months (68 NY2d at 419). In Bauman, we held an assault count duplicitous where it alleged 11 incidents over an eight month period (12 NY3d at 155).

An indictment is duplicitous when a single count charges more than one offense (e.g., People v Bauman, 12 NY3d 152 [2009]; People v Keindl, 68 NY2d 410 [1986]). It is multiplicitous when a single offense is charged in more than one count (e.g., People v Senisi, 196 AD2d 376 [2d Dept 1994]). A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed.

Facts : According to the evidence presented to a grand jury, defendant persuaded two women to visit him in the middle of the night at the apartment of a friend of his. After a short stay, the women decided they wanted to leave, but found that the door was locked and defendant had concealed the key. An argument on this subject woke another person in the apartment, who persuaded defendant to open the door.

Defendant followed the women out of the building, grabbed one of them from behind and knocked her to the ground. He pinned her down with his body and groped her breasts and buttocks, while the second woman tried to protect her friend by hitting defendant, pulling his hair and screaming. Defendant responded by throwing the second woman down and getting on top of her in turn, groping her breasts and buttocks also. The first victim then came to the aid of the second, hitting and biting defendant and finally ending the encounter with a kick to the stomach that gave the women a chance to run away.

The grand jury indicted defendant on two counts of unlawful imprisonment and four of sexual abuse. Only the sexual- abuse counts concern us here. There are two for each victim, the first alleging forcible hand-to-breast contact, the second hand-to-buttocks. (The second count relating to the second victim uses the word "breast" rather than "buttocks", but the grand-jury transcript shows this to be an error.) Defendant moved to dismiss two of the four counts as multiplicitous. County Court granted his motion, and the Appellate Division affirmed (People v Alonzo, 62 AD3d 720 [2009]).

Legal Analysis : An indictment is duplicitous when a single count charges more than one offense (e.g., People v Bauman, 12 NY3d 152 [2009]; People v Keindl, 68 NY2d 410 [1986]). It is multiplicitous when a single offense is charged in more than one count (e.g., People v Senisi, 196 AD2d 376 [2d Dept 1994]). A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed.

As a general rule, however, it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime. Thus, a physical attack by one person upon another is normally but one assault, though the attacker may hit the victim several times.

Penal Law § 130.65 (1) says that "[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion." "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person . . . for the purpose of gratifying sexual desire" (Penal Law § 130.00 [3]). Here, to use the words of the Appellate Division in People v Moffitt (20 AD3d 687, 690 [3d Dept 2005]) (quoted by County Court below), there was "but a single, uninterrupted occurrence of forcible compulsion." It is true, as the People point out, that there were at least two – indeed probably more – occurrences of "sexual contact." Unsurprisingly, neither victim claimed to remember exactly how often defendant removed his hand and touched her again in the course of groping her, or how often he moved a hand from one body part to another, but it is clear that this happened repeatedly. To hold that each such movement of the hand may be prosecuted as a separate crime would be contrary to common sense.