Duplicitous Indictments: Multiple Acts Charged As A Continuing Crime
2015 NY Slip Op 03768
New York Court of Appeals
Decided on May 5, 2015
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The New York Court of Appeals: When can multiple acts be charged as a continuing crime?
Issue: Whether an indictment is duplicitous where a defendant is accused of using two weapons to carry-out a single uninterrupted assault over a short time frame against the same victims triggered by a single incident of anger?
Summary: Defendant was convicted in the Oneida County Court of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. ?The defendant appealed arguing that (1) the jury instruction and the evidence at trial rendered the indictment duplicitous. A divided court in the Appellate Division, Fourth Department upheld the judgment of conviction. Defendant again appealed, and the Court of Appeals affirmed his conviction in a majority memorandum opinion.
Holding: The Court of Appeals held that the evidence and jury instruction did not render the indictment duplicitous because the prosecution was not required to prove that defendant used two weapons under the plain language of the penal law.The Court interpreted New York’s Criminal Procedure Law 200.30(1), which requires that each count of an indictment may charge one offense only. ?The Court found that the evidence established that the defendant attacked the victim out of one impulse and was a continuing crime; the jury instruction wash, therefore, not erroneous in light of the record.
Facts: Defendant was indicted on one count each of attempted murder in the second degree (Penal Law 110.00, 125.25), assault in the first degree (Penal Law 120.10), criminal possession of a weapon in the second degree (Penal Law 265.03[b]), and reckless endangerment in the first degree (Penal Law 120.25). With respect to the assault and reckless endangerment charges, the indictment alleged that defendant committed those offenses with a .380 semi-automatic pistol and a .22 rifle.
During trial, the prosecution presented evidence that defendant shot the victim following an argument between the victims fiance and the mother of the victims child, who is defendants sister. On the evening of the shooting, the victim saw defendant drive by his house slowly with his vehicle lights off and then pull over. The victim approached defendant to inquire why he was there. During the conversation, the other occupant of defendants vehicle got out of the car and punched the victim in the head, which led to a fist fight. Defendant approached the victim; pistol whipped him in the head; and then shot him with a .380 caliber semi-automatic pistol. Defendant then returned to his vehicle to obtain a second firearm, i.e. a .22 caliber rifle, which he then used to shoot at the victim. The victims fiance was in the immediate vicinity at the time of the shooting. The victim sustained multiple gunshot wounds to the neck, chin, shoulder, and leg.
During its charge, the trial court instructed the jury that it was alleged that defendant committed assault in the first degree by intentionally injuring the victim with a 380 semi-automatic pistol and a 22 caliber rifle. The court further instructed the jury that it was alleged that defendant committed reckless endangerment in the first degree by firing a 380 semi-automatic pistol and a 22 rifle in the direction of [the victims fiance]. During deliberation, the jurors sent a note asking if they must believe that both firearms were involved in order to find defendant guilty of the assault and reckless endangerment charges. The judge instructed the jury that it must be proven to your satisfaction beyond a reasonable doubt, that either of the weapons were involved or both, as long as you find that there was a deadly weapon involved.
The jury thereafter returned a verdict of guilty on all four counts charged in the indictment. Defendant appealed arguing, among other things, that (1) the jury instruction and the evidence at trial rendered the indictment duplicitous. A divided court of the Appellate Division, Fourth Department upheld the judgment of conviction. Defendant again appealed, and the Court of Appeals affirmed his conviction in a majority memorandum opinion.
Legal Analysis: In reaching its decision, the Court of Appeals first recounted that CPL 200.30(1) requires that each count of an indictment may charge one offense only.
Next, it analyzed when a count is duplicitous. According to precedent, [w]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act (People v. Shack, 86 N.Y.2d 529, 540-541). Under Penal Law 120.10(1), a person is guilty of assault in the first degree when with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. Under Penal Law 120.25, a person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person. Thus, the prosecution was not required to prove that defendant used both weapons under the plain language of either statute.
In addition, the evidence at trial did not render the charges duplicitous because defendant attacked the victim out of one impulse ? to seek revenge for the fiances alleged assault on defendants sister. Although defendant used two guns to carry-out the crime, he committed one crime in a single, uninterrupted course of conduct (People v. Alonzo, 16 N.Y.3d 267, 270). This is true even though it was unclear which of the two victims was defendants intended target (People v. Wells, 7 N.Y.3d 51).
Therefore, the counts of the indictment were not rendered duplicitous by the trial courts instructions or the evidence. Accordingly, the majority affirmed defendants judgment of conviction in a memorandum order.
For background, duplicitous (duplicity) is a legal term used to describe an error committed when the count charged on an indictment describes two different offences. An indictment may contain more than one count, but each count must allege only one offence. This allows a defendant, as well as the jury, to know the charges being brought.