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THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

The Fourth Department, reversing the conviction and ordering a new trial, determined the trial testimony rendered the count duplicitous:

“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” … . Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant’s guilt of count 2.

Because each act of alleged sexual contact constitutes “a separate and distinct offense” … , the victim’s testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed, ” ‘it is impossible to verify that each member of the jury convicted defendant for the same criminal act’ ” in connection with count 2 … . People v Zona, 2024 NY Slip Op 01652, Fourth Dept 3-22-24

Practice Point: If the indictment charges one incident during the described time-frame and the trial testimony reveals more than one incident, it is impossible to know whether the jury reached a unanimous verdict on any one incident.

 

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