ALTHOUGH THE SEXUAL ABUSE COUNT WAS FACIALLY VALID, THE VICTIM’S TESTIMONY RENDERED THE COUNT DUPLICITIOUS, REQUIRING REVERSAL ON THAT COUNT (THIRD DEPT).

The Third Department, reversing defendant’s conviction of one count of sexual abuse, determined, although the count was facially valid, it was rendered duplicitous by the victim’s testimony:

The evidence relative to these charges derived mostly from the victim’s trial testimony, wherein she revealed that she and defendant lived in the same household during the relevant time frame and he touched her inappropriately on several occasions while in the basement of the residence. With respect to count 2, when asked on direct examination whether defendant had his clothes on, the victim answered that he would “sometimes . . . take off his shirt” and “sometimes he would have no shirt on at all” … . The prosecutor then asked the victim whether she remembered “more than one time that [defendant] didn’t have a shirt on” and she stated: “I remember one time that he did not have his shirt on.” On cross-examination, defense counsel asked the victim whether it was true that there were multiple times defendant “took his shirt off,” to which she responded in the affirmative. She then explained that “[i]t was at least two” times and repeated this again when confronted with the fact that, during her grand jury testimony, she stated that defendant had taken his shirt off only once, clarifying that she “meant to say two.”

… Where, as here, “trial testimony provides evidence of repeated acts that cannot be individually related to specific counts in the indictment, the prohibition against duplicitousness has been violated” … . People v McNealy, 2024 NY Slip Op 04230, Third Dept 8-15-24

Practice Point: Where an indictment court charges one incident and the trial testimony indicates there were multiple similar incidents, it is impossible to tell whether the jury was unanimous in convicting under that count. The count was rendered duplicitous by the trial testimony, requiring reversal.