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Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous—Only Proof of the Use of One Weapon Was Required

The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle.  The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment.  When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:

CPL 200.30 (1) requires that “each count of an indictment may charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. …”[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

…[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse – to seek revenge for the fiancée’s alleged assault on defendant’s sister….”[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident … . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15

 

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