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The Court thus conclude that the counts of the indictment alleging assault in the second degree and menacing in the second degree are not duplicitous, and should be reinstated.

One evening, the complainant was working in a grocery store when he became involved in a dispute with his employer, one of the respondents, over the payment of back wages. After all of the customers had left the store, manager instructed another employee, to lock the door. Respondents then allegedly attacked the complainant, beating and kicking him with their hands and feet, and assaulting him with various weapons. According to the complainant, during the course of the assault he was hit in the head with a gun by one of the respondents, another hit him in the face and forehead with a closed knife, and the other hit him in the head and back of the neck with a stick. The complainant lost consciousness and suffered injuries which included a broken facial bone. All four assailants were subsequently arrested and indicted on charges, inter alia, of having acted in concert to commit one count of assault in the second degree by use of a dangerous instrument, and one count of menacing in the second degree.

A Kings County Criminal Lawyer said that after inspecting and reviewing the grand jury minutes, the Supreme Court dismissed the assault and menacing counts of the indictment, concluding that they were duplicitous. Although the court thereafter granted the People’s motion for leave to reargue, it adhered to its determination dismissing the assault and menacing counts. In support of its conclusion that the counts were duplicitous, the court noted that the complainant had testified that three of the four defendants assaulted him with different weapons during the attack, and that each weapon caused discrete physical injuries to different parts of his body. The court also reasoned that the assault count had been submitted to the grand jury “in a manner which did not require 12 or more grand jurors to find that any particular item was the instrumentality which caused the complainant’s physical injury.” During the pendency of the People’s appeal from the order made upon reargument, the Supreme Court, sua sponte, reconsidered the issues raised by the parties’ prior motions, and adhered to the determination made in that order. There was no drug found and Burglary was not involved.

The Supreme Court disagreed with the court’s conclusion that the subject counts are duplicitous, reverse the determination in the order made upon reargument, and reinstate the first and third counts of the indictment. Each count of an indictment may charge only one offense, and a count which charges the commission of a particular offense occurring repeatedly during a designated period of time is duplicitous. The requirement that separate counts of an indictment charge no more than one offense serves to ensure that a defendant is provided with “fair notice of the charges against him so that he can defend himself and establish the defense of double jeopardy if an attempt is made to reprosecute him after acquittal or conviction of those charges”. Prohibiting duplicitous counts also prevents the possibility that individual jurors might vote to convict a defendant of a count on the basis of different offenses, thus permitting a conviction even though no unanimous verdict has been reached.

Here, the defendants were properly charged with one count of assault in the second degree and one count of menacing in the second degree because the charges against them stemmed from a single criminal transaction. According to the testimony presented to the grand jury, the four defendants, acting in concert, committed one continuous assault upon the complainant over a short period of time, with no pronounced break. The fact that more than one dangerous instrument allegedly was used by the defendants, and more than one blow was struck causing the complainant several injuries, does not transform this single criminal incident into multiple assaults or acts of menacing which must be charged by separate counts.

Furthermore, the assault and menacing counts of the indictment are not duplicitous merely because of the possibility that a jury could convict the defendants without reaching a unanimous agreement as to which one or more of the three alleged dangerous instruments was used, and which caused the complainant’s physical injuries. One of the concerns underlying the prohibition against duplicitousness is that individual jurors might vote to convict a defendant of a single count of an indictment on the basis of different offenses. However, no such concerns are implicated where, as here, a count charges a single offense but the evidence presented suggests alternative means by which an element of that offense may have been committed.

This point is illustrated by a decision of the Court of Appeals where the defendant and a codefendant were fleeing from the scene of an armed robbery when they encountered two undercover detectives. One of the detectives announced that he was a police officer and ordered the men to stop. The defendant responded by firing his gun twice in the direction of the two detectives as he ran up the street. The defendant subsequently was apprehended and charged with multiple offenses, including attempted murder of a police officer in the first degree. At the close of proof at trial, the defendant moved to dismiss the count of the indictment charging him with attempted murder of a police officer in the first degree, arguing that it was duplicitous because the evidence failed to establish which detective he intended to kill. However, the trial court submitted both attempted murder of a police officer in the first degree, and the lesser-included offense of attempted murder in the second degree, to the jury. The trial court instructed the jury that the greater offense required a finding that the defendant intended to kill a police officer who was engaged in the course of performing his official acts, and that the lesser offense required a finding that the defendant intended to cause the death of “another person.” The defendant objected to these instructions on the ground that they would allow the jury to convict without unanimously identifying the individual that he sought to kill, and that the count of attempted murder in the first degree was therefore duplicitous. The defendant was ultimately convicted of the lesser-included offense of attempted murder in the second degree. On appeal, he continued to maintain that the count of attempted murder in the first degree was duplicitous because the evidence at trial failed to specify which officer he intended to kill. In rejecting the defendant’s argument, the Court of Appeals noted that the offense of murder in the first degree pursuant to Penal Law § 125.27 (1) (a) (i) is committed when, with intent to kill a police officer engaged in the performance of official duties, the defendant causes the death of that officer or a third person, and the defendant knew or reasonably should have known that the intended victim was a police officer. The Court also noted that the lesser-included offense of murder in the second degree similarly required an intent to kill, but that that intent could be directed at “another person” who need not be a police officer. The Court then reasoned that since the identity of the specific police officer against whom the defendant’s murderous intent was directed was not an element of attempted murder in the first degree or attempted murder in the second degree, the trial court’s refusal to instruct the jury that it had to unanimously determine which detective the defendant intended to kill did not render the attempted murder counts duplicitous. The Court concluded that each count charged a single crime based on a single incident that tended to effect the crime of murder, accomplished while the defendant acted with the intent to cause the death of a police officer or another person.

Similarly, the Appellate Division, First Department, in another case, rejected a defendant’s contention that a robbery count was duplicitous because there was evidence that he had stolen two different types of property. In that case, where the indictment charged the defendant with taking the victim’s car and money, the court found that the jury had been properly instructed that it could convict the defendant of robbery on the basis of taking either the car or the money, and concluded that the trial court’s determination to charge the jury in the disjunctive did not render the robbery count of the indictment duplicitous.

It has also been held that where multiple acts constitute one scheme to commit grand larceny against a single victim, a count which so charges is not duplicitous. Thus, where the challenged counts charged the defendants with having submitted numerous fraudulent claims for services provided to Medicaid recipients as part of a scheme to unlawfully obtain reimbursement for a particular therapy service, the court concluded that the counts were not duplicitous despite the obvious possibility that a jury might not agree that all of the underlying claims were fraudulent.

In the case at bar, the indictment charged the defendants with assault in the second degree pursuant to Penal Law § 120.05 (2), which provides that a person is guilty of this offense when, “with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” The defendants were also charged with menacing in the second degree under Penal Law § 120.14 (1), which provides that a person is guilty of this offense when “he or she intentionally places or attempts to place another person in reasonable fear of physical injury by displaying a dangerous instrument.” Although both statutory provisions require the use or display of a dangerous instrument, the particular identity of the dangerous instrument is not an element of these offenses. Accordingly, the defendants may properly be charged with a single count of assault in the second degree based upon evidence that they acted in concert to intentionally cause physical injury to the complainant by means of a dangerous instrument, regardless of whether more than one dangerous instrument allegedly was used. Similarly, the defendants may also properly be charged with a single count of menacing in the second degree based upon evidence that they acted in concert to intentionally place the complainant in fear of physical injury by displaying a dangerous instrument.

The Court thus conclude that the counts of the indictment alleging assault in the second degree and menacing in the second degree are not duplicitous, and should be reinstated.

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