TRIAL TESTIMONY RENDERED SEVERAL COUNTS IN THIS SEXUAL ABUSE CASE DUPLICITOUS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts in this sexual abuse case, determined the trial testimony rendered the counts duplicitous:

… [T]he trial testimony rendered counts 4, 5, 7, and 8 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’ ” … . A duplicitous count “may undermine the requirement of jury unanimity,” inasmuch as some jurors may find that defendant committed one criminal act under the count, while other jurors may find that defendant committed some other criminal act under the same count … .

At trial, the victim was unable to identify the number of times defendant touched her during the relevant time period. She testified that he touched her breasts “[a]t least two” times. The victim also testified that defendant put his fingers inside her vagina “[p]robably at least three” times and licked her vagina “[a]t least three times.” She further testified that when he touched her vagina, he would also touch her breasts, but she could not “remember the specifics” of each occurrence. Under the circumstances presented here, we conclude, with respect to counts 4, 5, 7, and 8, that “it is impossible to determine whether the jury reached a unanimous verdict on those counts . . . [and] impossible to determine whether defendant was convicted of an act for which he was not indicted” … . People v Hunt, 2024 NY Slip Op 02471, Fourth Dept 5-3-24

Practice Point: If the trial testimony makes it possible for the jury to convict based upon an allegation that was not part of the indictment, the conviction will be reversed.