RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s resisting arrest conviction, determined that the trial evidence rendered the resisting arrest count of the indictment duplicitous. At trial evidence of two separate circumstance where defendant was alleged to have resisted arrest, involving different police officers, was presented. Although the error was not preserved, the court considered the issue under its interest of justice jurisdiction:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence 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 indictment charged defendant with one count of resisting arrest. According to the record evidence, however, the jury was presented with two instances where defendant resisted an officer’s arrest — one involving the victim that turned violent and the other involving the officers who discovered him in the dumpster. We also note that, during deliberation, the jury asked whether it could consider the incident at the dumpster with respect to the resisting arrest charge or solely defendant’s encounter with the victim. In our view, Supreme Court’s response in rereading count 5 of the indictment failed to dispel any confusion by the jury… . Although this argument is unpreserved for review, we take corrective action in the interest of justice by dismissing count 5 of the indictment with leave to the People to re-present any appropriate charges to a new grand jury … . People v Hilton. 2018 NY Slip Op 07981, Third Dept 11-21-18

CRIMINAL LAW (RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/APPEAL (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/INDICTMENTS (RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/DUPLICITOUS (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))