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Shooting Accomplished With Two Weapons Constituted a Single Continuing Offense/Indictment Not Duplicitous

Over a dissent, the Fourth Department determined a shooting accomplished with more than one weapon did not constitute two distinct offenses, but rather constituted a continuing offense, and, therefore, the indictment was not duplicitous:

It is well established that, “ ‘[w]here an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others’ ” … .  Contrary to the position of the dissent, we conclude that the evidence at trial established that the multiple shots fired from two separate firearms “constitute[d] a single uninterrupted assault rather than a series of distinct criminal acts . . . , and the assault ‘occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger’ ” … .  “The fact that more than one dangerous instrument allegedly was used by the defendant[], and more than one [shot] was [fired] causing the [victim] several injuries, does not transform this single criminal incident into multiple assaults or acts of [reckless endangerment] which must be charged by separate counts” … .  We respectfully disagree with the position of the dissent that there were separate impulses with an abeyance between them.  Rather, the evidence established that defendant assaulted the victim and his fiancée in an attempt to seek revenge for the fiancée’s alleged assault on defendant’s sister. There was one motive and one impulse:  to seek revenge.  We see no distinction between a situation in which an assaulting defendant takes the time to reload one weapon and one in which the assaulting defendant takes the time to obtain a second weapon with the single impulse of continuing the ongoing assault.

With respect to the count of reckless endangerment in the first degree, the conduct encompassed by that count was the act of endangering the life of the victim’s fiancée, who was in the vicinity of the victim the entire time defendant was shooting at the victim. “Where . . . a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count” … .  Under the circumstances of this case, the crime of reckless endangerment “involved a continuing offense” and could therefore encompass multiple acts in one count without being duplicitous … .  In our view, the fact that the multiple shots were fired from two separate firearms did not transform this continuing offense into two separate offenses.  We disagree with the dissent’s assumption that the fiancée was “potentially out of harm’s way” when she sought refuge in a vehicle during the barrage of gunshots inasmuch as the vehicle was still in the vicinity of the gunshots.  “[R]eckless endangerment is a conduct specific . . . crime,” and here the conduct underlying that count of the indictment was the firing of multiple gunshots in the vicinity of the fiancée … .  We thus conclude that the indictment was not rendered duplicitous by the court’s instruction that the jury could find defendant guilty of the assault and reckless endangerment charges if it found that defendant used either firearm or both.   We reject the view of the dissent that “ ‘there were two distinct shooting incidents’ ” … .  People v Flanders, 963, 4th Dept 11-8-13

 

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