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​ALL AGREED A MULTIPLICITOUS COUNT SHOULD BE DISMISSED; THE CONCURRENCE ARGUED THE PROSECUTION HERE WAS UNNECESSARY AND A RESTORATIVE-JUSTICE APPROACH WOULD HAVE BEEN BEST (CT APP).

The Court of Appeals dismissed a multiplicitous count of the indictment. The concurrence by Judge Wilson argued that the underlying prosecution would have been better replaced by a restorative-justice approach. The grand larceny and perjury charges stemmed from what all parties agreed was a “dumb argument” on the street:

A multiplicitous indictment “creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than [they] actually committed” … . Even when the multiplicitous convictions do not increase the defendant’s sentence, the stigma of impermissible convictions endures and must be remedied. Thus, when a defendant is convicted of multiplicitous charges, the proper remedy is vacatur of all but one of the multiplicitous convictions and dismissal of those counts of the indictment, regardless of whether that corrective action has any effect on the defendant’s sentence. Here, there is no dispute regarding the Appellate Division’s conclusion that the two counts of perjury of which defendant was ultimately convicted were multiplicitous. As the People concede, the proper remedy is therefore dismissal of one of the convictions. People v Greene, 2024 NY Slip Op 00096, CtApp 1-11-24

Practice Point: It is entirely proper to dismiss a multiplicitous indictment-count after trial.

Practice Point: Here Judge Wilson, in a concurrence, argued that this prosecution, which arose from a “dumb argument” on the street, was unnecessary. The case should have been handled with a restorative-justice approach.

 

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