A Kings Order of Protection Lawyer said that, defendant moves to dismiss counts 1 through 10 and 24 through 27 of the indictment on the ground that each count is duplicitous because each count charges multiple acts in violation of multiple court orders. In deciding the motion, the court has considered the moving papers, the People’s opposition, the court’s letter dated June 29, 1998, the Grand Jury minutes, and the indictment.
A Kings Criminal Lawyer said that, defendant has been indicted for various crimes involving different acts prohibited by “a” court order of protection. Most of the counts at issue in this motion allege a violation of a single order of protection effective from December 26, 1996 until March 12, 2000. In fact, the Grand Jury minutes reflect the issuance of three separate orders of protection.
The issue in this case is whether defendant’s motion to to dismiss counts 1 through 10 and 24 through 27 of the indictment on the ground that each count is duplicitous because each count charges multiple acts in violation of multiple court orders.
Each count of an indictment may only charge one offense (CPL 200.30 ). Where an offense is made out by the commission of one act, that act must be the only offense alleged in that count of the indictment. A count which charges more than one offense is duplicitous. Even if a count is not duplicitous on its face, it can be rendered duplicitous by Grand Jury testimony, a bill of particulars, or trial testimony indicating that the charge includes more than one act per count. The bar on duplicity furthers the notice function of the indictment, protects against double jeopardy violations, and insures the reliability of unanimous verdicts.
A crime which by its character may be committed by multiple acts is considered a continuous crime. A count alleging a continuous crimes may charge multiple acts spanning a period of time without violating the statutory or constitutional bar against duplicity. In determining whether a crime is a continuing offense the court examines the language of the penal statute and the legislative intent Determining whether or not a crime is continuous “is not an easy task”. Holding that a crime is continuous is sometimes to a defendant’s advantage and is sometimes to a defendant’s disadvantage
A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.
In deciding the issue of legislative intent the court has compared this statute with Penal Law § 120.14(2), Menacing in the Second Degree. The major difference between the two crimes is the phrase “engages in a course of conduct or repeatedly commits acts.” The inclusion of this phrase in Menacing in the Second Degree makes this crime a continuous one. Since Menacing in the Third Degree does not contain words indicating that it is a continuous crime, and the Legislature has created the continuous crime of Menacing in the Second Degree, the court finds that Menacing in the Third degree is a non-continuous crime.
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If you are involved in a similar scenario, seek the help of Kings Order of Protection King Globe Lawyer. Call us at Stephen Bilkis and Associates.