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Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts

The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant:

Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to  enable  defendant  to  distinguish each count. Rather than identify each count temporally or by physical evidence, the People sought to remedy the defect by providing the name of an intended victim for each count. However, reckless endangerment is a conduct-specific, rather than a victim-specific, crime….  Thus, despite the amendment, the conduct underlying each count of the indictment remained unclear, as none of the seven shots fired hit any of the individuals named in the indictment.  As a result, there is simply no way to match each count of the indictment with the specific underlying conduct of defendant that would insure that the jury had reached a unanimous verdict with regard to each count and,  therefore, the  reckless endangerment  counts  must  be dismissed as duplicitous… . People v Estella, 103574, 3rd Dept, 6-6-13

 

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