You are here: / / MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST...
,

MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis:

An indictment is multiplicitous “when a single offense is charged in more than one count”… . A person commits the criminal offense of sexual abuse in the first degree when he or she subjects a person under 11 years old to sexual contact … . Nevertheless, a defendant may not be charged with separate counts of sexual abuse in the first degree for each instance of unlawful sexual contact where the instances of sexual contact constitute “a single, uninterrupted criminal act”  … . Here, for each instance of defendant touching a victim’s vagina, defendant was properly charged with a single and distinct count. By contrast, for each instance of defendant compelling a victim to touch his penis while defendant was simultaneously touching that victim’s vagina, defendant was charged with two separate counts. Charging two separate counts under those facts was improper inasmuch as the actions alleged in each pair of counts constituted a single, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, and we therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548 … . People v Sprague, 2017 NY Slip Op 05347, 4th dept 6-30-17

 

You might also like
RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY.
QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
EVEN THOUGH THERE WAS A PRIOR STIPULATED ORDER OF CUSTODY AND VISITATION GRANTING PRIMARY CUSTODY TO GRANDMOTHER, THE NONPARENT (GRANDMOTHER), NOT THE FATHER, HAS THE BURDEN TO SHOW EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE DENIAL OF FATHER’S SUPERIOR RIGHT TO CUSTODY BEFORE THE BEST INTERESTS OF THE CHILDREN CAN BE CONSIDERED PURSUANT TO FATHER’S PETITION TO MODIFY CUSTODY (FOURTH DEPT). ​
REMEDIES FOR BREACH OF CONTRACT WERE NOT CONFINED TO THE REMEDIES MENTIONED IN THE CONTRACT; THERE WAS NO INDICATION THE REMEDIES DESCRIBED WERE ‘SOLE AND EXCLUSIVE’ (FOURTH DEPT). ​
PLAINTIFF’S SON SUFFERED A BROKEN JAW IN A COLLISION WITH ANOTHER STUDENT DURING A GYM-CLASS TOUCH FOOTBALL GAME; THERE WERE QUESTIONS OF FACT WHETHER SUCH A COLLISION WAS FORESEEABLE AND WHETHER INADEQUATE SUPERVISION WAS THE PROXIMATE CAUSE (FOURTH DEPT).
DEFENDANT WAS NOT PRESENT AT A SIDEBAR CONCERNING THE BIAS OF A PROSPECTIVE JUROR, CONVICTION REVERSED (FOURTH DEPT).
Police Officer Involved In Accident Acted Appropriately In an Emergency Operation—Defendants Not Liable As a Matter of Law
No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

FOR CAUSE CHALLENGE TO JUROR WHO WANTED TO HEAR FROM EVERYONE (IMPLICITLY INCLUDING... DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES...