Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous

The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant’s daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:

“Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, “is void for duplicity” … . “The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,’ in effect, permitting a conviction even though a unanimous verdict was not reached”… . “Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … .

The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the act mentioned and described” in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the acts mentioned and described” in the first and second counts for that month.

Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment”… . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14