You are here: / / THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS...

THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS AND WAS DISMISSED AFTER TRIAL; THE APPELLATE COURT NOTED THAT EVEN IF THE EVIDENCE HAD BEEN NARROWED AT TRIAL, DISMISSAL WOULD STILL BE REQUIRED BECAUSE DEFENDANT DID NOT HAVE PRETRIAL NOTICE OF THE CHARGES (FOURTH DEPT).

The Fourth Department, reversing the conviction and dismissing the indictment, determined the one count indictment was rendered duplicitous by the bill of particulars. The court noted that, even if the scope of the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges:

Because the sole count of the indictment charged only one offense, as required by CPL 200.30 (1) … , the indictment on its face was not duplicitous. It is well settled, however, that indictments charging one offense per count can be rendered duplicitous by, among other things, a bill of particulars alleging more than one offense per count … . Here, the bill of particulars alleged that defendant engaged in two separate and distinct acts of nonconsensual sexual intercourse with the victim. The second such act allegedly occurred more than three hours after the first act. Thus, while the indictment charged only one criminal act, the jury heard evidence at trial of two criminal acts, with no specification from the court or the prosecutor as to which act they were to consider when rendering a verdict.

Even if the trial evidence narrowed the scope of defendant’s allegedly illegal conduct, and here it did not, that “is irrelevant. Defendant was entitled to pretrial notice of the charges so that he would be able to adequately prepare a defense” … . People v Baek, 2022 NY Slip Op 04263, Fourth Dept 7-1-22

Practice Point: Here the one count indictment was rendered duplicitous by the bill of particulars which alleged two sexual acts. Even if the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges.

 

You might also like
THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).
Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule
THE DEFENDANT’S DNA ON THE WEAPON AND DEFENDANT’S PRESENCE AS A PASSENGER IN THE CAR WHERE THE WEAPON WAS FOUND WERE NOT SUFFICIENT TO PROVE DEFENDANT POSSESSED THE WEAPON AT THE TIME ALLEGED IN THE INDICTMENT; DEFENDANT’S CONVICTION REVERSED BASED ON A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).
THE MAJORITY CONCLUDED JUROR 15 WAS ONE OF TWO JURORS WHO GAVE A NON-VERBAL ASSURANCE HE WOULD NOT HOLD IT AGAINST THE DEFENDANT IF HE DID NOT TESTIFY; THE DISSENT ARGUED THE RECORD DOES NOT IDENTIFY JUROR 15 AS ONE OF THE TWO JURORS AND DID NOT DESCRIBE THE NATURE OF THE NON-VERBAL ASSURANCE (FOURTH DEPT).
DEFENDANT OWNS A VINEYARD IN WHICH PLAINTIFF WAS INJURED IN AN ALL-TERRAIN-VEHICLE ACCIDENT; DEFENDANT WAS ENTITLED TO IMMUNITY PURSUANT TO GENERAL OBLIGATIONS LAW 9-103 BECAUSE THE VINEYARD WAS “SUITABLE FOR RECREATIONAL USE” (FOURTH DEPT).
DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM THE DECISION WHETHER TO TESTIFY WAS HIS TO MAKE (FOURTH DEPT).
FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1).
SUPREME COURT DISMISSED THE INDICTMENT ON SPEEDY-TRIAL GROUNDS, FINDING THAT THE PEOPLE HAD NOT COMPLIED WITH THEIR DISCOVERY OBLIGATIONS AT THE TIME THE PEOPLE INDICATED THEY WERE READY FOR TRIAL; THE DISMISSAL ORDER WAS NEVER SERVED ON THE PEOPLE SO THE 30-DAY APPEAL PERIOD NEVER STARTED RUNNING RENDERING THE PEOPLE’S APPEAL TIMELY; THE FAILURE TO TURN OVER “DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES” DOCUMENTS DID NOT VIOLATE THE PEOPLE’S DISCOVERY OBLIGATIONS BECAUSE THE PEOPLE DID NOT POSSESS THOSE DOCUMENTS (FOURTH 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

DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION... THE POLICE WERE “ACTING IN THE PUBLIC SERVICE FUNCTION” WHEN THEY...