You are here: / / THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH...
,

THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).

The Second Department determined three counts of vehicular homicide were multiplicitous and the DWI and DWAI counts were inclusory concurrent counts of vehicular homicide second degree:

While the People contend that each count of vehicular manslaughter required them to prove additional facts that the others did not, in fact, the People were only required to prove that the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The People’s election to proceed on a theory that the defendant had violated more than one such subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish his guilt … . Thus, a conviction on one count of vehicular manslaughter in the second degree would have been inconsistent with an acquittal on any other count charging the same offense predicated upon a different manner of intoxication … . Accordingly, we agree with the defendant that counts 5, 6, and 7 of the indictment were multiplicitous of count 4 … . Although the dismissal of the multiplicitous counts will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate to dismiss these counts in consideration of the stigma attached to the redundant convictions  … .

As the People concede, the defendant’s convictions of driving while intoxicated in violation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and driving while ability impaired under subdivisions (4) and (4-a) of Vehicle and Traffic Law § 1192 are inclusory concurrent counts of vehicular manslaughter in the second degree … . Accordingly, those convictions must also be reversed … . People v O’Brien 2020 NY Slip Op 04971, Second Dept 9-16-20

 

You might also like
DEFENDANTS’ ATTENDANCE AT A MANDATORY SETTLEMENT CONFERENCE (CPLR 3408) IN THIS FORECLOSURE CASE DID NOT CONSTITUTE AN “APPEARANCE” IN THE ACTION; THEREFORE DEFENDANTS WERE NOT ENTITLED TO FIVE DAYS NOTICE (PURSUANT TO CPLR 3215 (G)) RE: PLAINTIFF’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT (SECOND DEPT).
DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).
PLAINTIFF DID NOT PROVE DEFENDANT RECEIVED AND RETAINED THE INVOICES; SUMMARY JUDGMENT ON THE ACCOUNT STATED CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
PLAINTIFF BANK DID NOT STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND DID NOT DEMONSTRATE DEFENDANT HAD DEFAULTED IN THIS FORECLOSURE ACTION; THE DECISION ILLUSTRATES THE LEVEL OF STRICT COMPLIANCE WITH RPAPL 1304 WHICH IS REQUIRED (SECOND DEPT).
THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT).
SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.
DEFENDANT SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO PAY ATTORNEY’S FEES AS ORDERED BY THE COURT, THE CONTEMPT PROCEEDINGS WERE NOT FRIVOLOUS AND SANCTIONS SHOULD NOT HAVE BEEN IMPOSED FOR BRINGING THE CONTEMPT PROCEEDINGS (SECOND DEPT).

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF... DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES;...