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JUDGE’S RESPONSE TO JURY NOTE ALLOWED JURY TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN THE INDICTMENT, CONVICTION REVERSED AND INDICTMENT DISMISSED.

The Fourth Department determined the trial judge’s response to a jury note allowed the jury to consider evidence of actions not charged in the indictment. Defendant’s conviction for endangering the welfare of a child was therefore reversed and the indictment was dismissed:

As set forth in the indictment and bill of particulars, as well as pursuant to the People’s theory at trial, the endangerment charge was based on the conduct alleged in the preceding six counts of rape in the second degree and incest in the second degree, of which defendant was acquitted. After receiving a jury note during deliberations, the court instructed the jurors that they were not precluded from considering conduct other than the alleged rape and incest when considering the endangerment charge. That instruction allowed the jury to consider conduct not charged in the indictment. ” Because the jury may have convicted defendant of . . . act[s] . . . for which he was not indicted, defendant’s right to have charges preferred by the [g]rand [j]ury rather than the prosecutor at trial was violated’ ” … . Additionally, based on the vague nature of the court’s instruction, “[i]t is impossible to ascertain what alleged act of [endangerment] was found by the jury to have occurred, whether it was one . . . for which he was indicted, or indeed whether different jurors convicted defendant based on different acts” … . People v Utley, 2015 NY Slip Op 09749, 4th Dept 12-31-15

CRIMINAL LAW (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)/EVIDENCE (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)

Amendment of Decision and Order Dismissing Indictment Was Proper

The Second Department, over an extensive dissent, determined Supreme Court properly amended a decision and order which initially granted defendant’s motion to dismiss the indictment on “speedy trial” grounds. The amended decision and order, which was issued a day after the initial decision and order, denied the motion with respect to three counts:

A court possesses “inherent authority to rectify a prior error in dismissing an indictment” … , and “where there is a clearly erroneous dismissal of an indictment or count thereof, it is unreasonable to foreclose a court from reconsidering its previous determination” …, even in the absence of a formal motion for leave to reargue by the People … . Furthermore, under the facts of this case, there was no constitutional or statutory impediment to the court’s power to promptly modify its prior determination to dismiss the indictment and to thereby correct the previous error … .

Here, the Supreme Court recognized the error only one day after issuing the initial decision and order, well within the time period during which, for example, a motion for leave to reargue could have been made and before the People even had a reasonable opportunity to make such a motion. Moreover, while any present challenge to the court’s determination of the statutory speedy trial issue in the amended decision and order was forfeited by the defendant’s knowing, voluntary, and intelligent plea of guilty …, we note, in any event, that the error in initially dismissing counts seven, eight, and nine based on an alleged statutory speedy trial violation was clearly apparent from the documents in the court file. Accordingly, the prompt issuance of the amended decision and order correcting the prior mistake in this case was not improper or jurisdictionally defective. People v Francis, 2015 NY Slip Op 07679, 2nd Dept 10-21-15

 

Perjury Allegations Lacked Requisite Specificity, Indictment Should Have Been Dismissed

The Fourth Department determined the indictment did not meet the “specificity” pleading-requirements for perjury, and the charge to the grand jury was similarly defective:

“An indictment for perjury must contain all of the essential elements of the offense . . . and must set forth the alleged false testimony so as to apprise the defendant of the particular offense with which he [or she] is charged” … . Here, “[n]othing in the record before us gives any indication what the [grand] jury thought was false” … . Because the indictment failed to identify the particular falsehoods alleged to have been made by defendant, the indictment failed to provide her with the requisite “fair notice of the accusations made against [her], so that [she would] be able to prepare a defense” … .

Moreover, despite numerous pretrial requests for particularization by defense counsel, the People never identified the particular falsehoods allegedly made by defendant … . Rather, the prosecutor identified particular subject “areas that [he] believe[d] [were] perjurious.” ” To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jur[ors] at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him [or her]’ . . . The lack of specific allegations in the District Attorney’s charge to the [g]rand [j]ury on the perjury count renders it impossible to determine which specific statement or statements of [defendant] the [g]rand [j]ury found to be false. It is impossible to determine what the [g]rand [j]ury intended when it voted on the perjury charge . . . Since the [g]rand [j]ury presentation and legal instructions do not answer these questions, the perjury count [should have been] dismissed”… . People v Heatherly, 2015 NY Slip Op 07111, 4th Dept 10-2-15

 

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County Court Should Not Have Dismissed the Indictment on a Ground Not Raised by the Defendant Without Giving the People the Opportunity to Address the Issue

After reviewing the grand jury testimony, County Court dismissed the indictment on a ground (the complainant’s lack of testimonial capacity) not raised in defendant’s omnibus motion.  The Second Department reversed because the People had not been given the opportunity to address the issue:

In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment on the general grounds that the grand jury proceedings were defective and that the charges were not supported by legally sufficient evidence before the grand jury. The County Court, upon its own examination of the grand jury minutes, determined, sua sponte, that there was an issue as to the complainant’s testimonial capacity, and dismissed the indictment on the ground that the complainant lacked testimonial capacity.

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond. A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Moreover, “orderly procedures require that the People be given the opportunity to address any alleged defects prior to dismissal of an indictment”… . People v Coleman, 2015 NY Slip Op 06676, 2nd Dept 8-26-15

 

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Multiplicitous Indictment Counts Dismissed/Warrantless Search of Impounded Vehicle Upheld

The Third Department determined several counts of an indictment stemming from a fatal car accident (involving reckless driving under the influence) were multiplicitous and further determined the warrantless search of the impounded vehicle was valid:

An indictment “is multiplicitous when a single offense is charged in more than one count” (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . “Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous” … .

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13 [3]). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of Vehicle and Traffic Law § 1192 (2), (3) or (4-a) thereby causing the death of another person (see Penal Law § 125.12 [1]).

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim, differing only in the nature of defendant’s impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3], [4-a]). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12 (1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 … . * * *

Testimony at the suppression hearing established that, at the request of law enforcement, defendant’s vehicle was removed from the accident scene and taken to an unsecured lot, where it remained for several hours until it was transported — at the direction of a Rensselaer County deputy sheriff — to a secure impound lot. While defendant does not contest the initial towing from the accident scene, he claims that the seizure of the vehicle from the unsecured lot to the secured lot was unconstitutional. We disagree. “It is well settled that once the police possess a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would produce the fruits, instrumentalities, contraband or evidence of the crime the police can conduct[] a warrantless search and seizure of the vehicle” … . Here, the vehicle was moved from a lot where it was easily accessible to any member of the public to the secure lot only after it became clear that it was involved in a fatal accident. People v Hoffman, 2015 NY Slip Op 05976, 3rd Dept 7-9-15

 

People Could Not Show Good Cause for the Nearly Five-Year Pre-Indictment Delay—Indictment Dismissed

The Third Department, over a dissent, determined, in a child pornography case, the nearly five-year delay between when defendant’s computer was seized and defendant questioned (2009) and the indictment (2013) required dismissal of the indictment. The case was not complex and no additional information beyond that gathered in 2009 was needed to indict. The People therefore did not demonstrate good cause for the extensive delay:

The parties agree that there has been a protracted preindictment delay that places the burden on the People to establish good cause for that delay … . The People state in their brief that there are no issues of fact regarding the issue before this Court and the record on appeal provides an adequate basis to determine whether the protracted delay was justified.

In determining whether there is an undue delay, the trial court must consider “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . Here, although defendant was not incarcerated during the period of delay and the nature of the charges are serious, the extent of the delay was clearly extensive. The People attribute the delay to the fact that the matter was initially referred to the office of the United States Attorney for the Northern District of New York for prosecution, and point to vague references of personnel changes within that office, as well as that office’s decision, at some point, not to prosecute.

This was not a complex legal matter and the record establishes that no further evidence was needed in order to charge defendant beyond that gathered in the 2009 … .  People v Montague, 2015 NY Slip Op 05721, 3rd Dept 7-2-15

 

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Counts Rendered Duplicitous by Trial Testimony/Prosecution Held to Erroneous Jury Charge to Which No Objection Was Made/Prosecutorial Misconduct Mandated a New Trial

The Second Department determined: (1) many counts of the indictment were rendered duplicitous because the complainant in this sex-offense case testified to more than one offense within the time-periods encompassed by indictment counts; (2) the prosecution must be held to the erroneous jury charge to which no objection was made (stating proof complainant was less than 14 was required when the statute says less than 15); (3) the prosecution did not prove complainant was less than 14—relevant counts dismissed; and (4) prosecutorial misconduct during summation (prosecutor acted as an unsworn witness, invited the jury to speculate, shifted the burden of proof, and made inflammatory remarks) mandated a new trial on the remaining counts:

Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count in an indictment is void as duplicitous when that “single count charges more than one offense” … . Where, as here, the crime charged ” is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous'” … . ” Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented . . . at trial 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'” … . * * *

… [S]ince the People did not object to the erroneous jury charge, they were “bound to satisfy the heavier burden” … of proving, for counts 1 through 40, that the defendant engaged in sexual intercourse with a person less than 14 years old. Since the evidence demonstrated that the complainant was 14 years old during the time periods encompassed by counts 17 through 40 of the indictment, the People failed to satisfy this burden as to those counts. * * *

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . Rather, “[t]here are certain well-defined limits” (id. at 109). Among other things, “[the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role … and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct. Here, the prosecutor surpassed the “well-defined limits” … .

The prosecutor acted as an unsworn witness when, in response to defense counsel’s summation comments regarding the lack of corroborative medical evidence and the failure to call certain witnesses, the prosecutor told the jury that the uncalled witnesses had “nothing to offer” and that the medical records the prosecution failed to offer into evidence were “either irrelevant or cumulative” … . The prosecutor also improperly invited the jury to speculate as to certain matters, despite advance warning by the trial court not to engage in that line of comment … . Further, the prosecutor shifted the burden of proof by telling the jury, and repeatedly returning to this theme, that it had not “heard” any “compelling reason” for the complainant to lie, and by suggesting that the jury would have to convict the defendant if it did not “buy” the defendant’s explanation of certain evidence … . The prosecutor further improperly suggested that the jury would have to conclude that the complainant was “evil” in order to acquit the defendant … . The prosecutor repeatedly vouched for the complainant, while denigrating the defense and expressing his personal opinion as to the defendant’s lack of credibility … . Finally, the prosecutor made a number of inflammatory references to the defendant using the complainant as his “personal sex toy” … . People v Singh, 2015 NY Slip Op 04157, 2nd Dept 5-13-15

 

Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature

The Fourth Department reversed defendant’s conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home.  The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing.  Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided.  The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence.  In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.

With respect to multiplicity and duplicity, the court wrote:

Prosecutors and grand juries must steer between the evils known as duplicity’ and multiplicity.’ An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed” … . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence … .

Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on “distinct but not identifiable vouchers.” Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count … .  …

With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act”… .

With respect to grand larceny based upon the violation of a regulation, the court wrote:

Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant “stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS].” Under Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof.” Larceny includes “obtaining property by false pretenses” (§ 155.05 [2] [a]). A defendant commits larceny by false pretenses when he or she “obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” … .

Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS’s regional manager testified that, although it is a “regulatory violation” for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as “billable” on his charts, although unauthorized by the regulations.

Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a “wrongful[ ] tak[ing]” within the meaning of Penal Law § 155.05 (1), we note that “[c]onduct which is wrongful in the civil context is not necessarily wrongful’ within the meaning of the larceny statutes” … .  People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14

 

Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous—Only Proof of the Use of One Weapon Was Required

The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle.  The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment.  When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:

CPL 200.30 (1) requires that “each count of an indictment may charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. …”[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

…[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse – to seek revenge for the fiancée’s alleged assault on defendant’s sister….”[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident … . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15

 

Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment—It is a Violent Felony Only If It Is a “Lesser Included” Offense

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a “lesser included” offense:

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in “the top count” of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as “a lesser included offense . . . as defined in section 220.20 of the criminal procedure law.” CPL 220.20(1) defines a “lesser included offense” as one where the defendant pleads “to an offense of lesser grade than one charged in a count of an indictment.” “Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense” (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant’s conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) … . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

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