INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY.

The Fourth Department determined the trial testimony rendered a count of the indictment duplicitous and dismissed it:

We agree with defendant that the third count of the indictment, charging defendant with engaging in anal sexual contact with the complainant by forcible compulsion, was rendered duplicitous by the complainant’s testimony … . The complainant testified that the acts of anal sexual contact occurred “more than once” over the course of a two-hour incident, and, contrary to the People’s contention, such acts did not constitute a continuous offense … , but rather were separate and distinct offenses … . People v Cox, 2016 NY Slip Op 08661, 4th Dept 12-23-16

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