Opinion
Index No. 72977-23
01-31-2024
The People of the State of New York v. Davey Ali, Defendant.
For the Defendant Theodore Herlich, Esq. For the People Office of the Special Narcotics Prosecutor
Unpublished Opinion
For the Defendant Theodore Herlich, Esq.
For the People Office of the Special Narcotics Prosecutor
Steven M. Statsinger, J.
Are two counts of an indictment multiplicitous when each charges the defendant with violating Penal Law § 220.16(1) (possession of a narcotic drug with the intent to sell) based on different drugs that he possessed at the same time? And if so, what is the remedy?
Here, the counts identified by defendant - counts 1 and 2 - might well be multiplicitous. But, as explained below, that determination can only be made with certainty by assessing the proof at trial. Thus, as also explained below, a pre-trial dismissal of one of the counts is not the remedy. Accordingly, defendant's motion to dismiss count 2 as multiplicitous of count 1 due to a "defect" in the grant jury proceedings (CPL §§ 210.20(1)(a); 210.25(1)) and styled here as a motion to reargue the court's previous rejection of these arguments, is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
As pertinent here, count 1 of the indictment charges the defendant with violating Penal Law § 220.16(1), as does count 2. The counts are nearly identically worded: Count 1 alleges that "The defendant, in the City of New York, City of New York, on or about February 8, 2023, knowingly and unlawfully possessed a narcotic drug with the intent to sell the same." Emphasis added. Count 2 alleges that "The defendant, in the City of New York, City of New York, on or about February 8, 2023, knowingly and unlawfully possessed a narcotic drug, to wit, cocaine, with the intent to sell the same." Emphasis added.
The grand jury minutes ("GJM") indicate that defendant was arrested after a vehicle stop on February 8, 2023. GJM at 6, 11-12. A search of the defendant incident to that arrest resulted in the recovery of a "large quantity" of narcotics from his sweatshirt pocket. GJM 12. That "large quantity" included cocaine, heroin, alprazolam, fentanyl, methamphetamine, a mixture of heroin and fentanyl, and a mixture of heroin and para-fluorofentanyl. GJM 12, 18-21.
B. Motion Practice
Defendant's omnibus motion included a motion to dismiss count 2 as multiplicitous of count 1. Omnibus Motion at 20. In an order dated December 6, 2023, the court denied that motion, holding:
There is some merit to defendant's argument that the separate counts charging possession with intent to sell different narcotic drugs could be multiplicitous. See People v. Martin, 153 A.D.2d 807 [1st Dept. 1989]. How- ever, the remedy is not dismissal based on the grand jury minutes. In the event that the trial judge finds that proof at trial confirms the claim of multiplicitousness, the remedy will be for that court to direct the People to elect which count or counts to submit to the jury. E.g., People v. Taylor, 190 Misc.2d 124 (Sup. Ct. Queens County 2002).
In his motion to reargue, defendant again insists that the remedy for this apparent multiplicitousness is dismissal of count 2. Motion to Reargue dated 12/17/23.
II. DISCUSSION
A. Introduction
A single count in an indictment is duplicitous when it charges more than one offense. People v. Alonzo, 16 N.Y.3d 267, 269 (2011). As pertinent here, however, two or more counts are multiplicitous when each charges the same offense. Id.
Duplicitous counts are expressly prohibited by CPL § 200.30. There is no parallel provision prohibiting multiplicitous counts.
B. Counts 1 and 2 Appear to Be Multiplicitous
With respect to defendant's argument that counts 1 and 2 are multiplicitous, the most that the Court can conclude at the "inspect-and-dismiss," CPL § 210.20(a)(1), stage is that those counts appear to be multiplicitous.
Without a doubt, in the First Department, if a defendant is convicted of more than one count charging him with possessing with the intent to sell different narcotic drugs at the same time, such that those counts are indeed multiplicitous, a conviction of only one of them can stand. E.g., People v. Martin, 153 A.D.2d 807 (1st Dept. 1989). And the grand jury minutes here surely suggest that counts 1 and 2 here do exactly that: each count appears to relate to materials recovered from defendant's pocket - the same pocket, in fact - during a single search incident to his arrest. But the issue can only be determined conclusively after trial because it is possible that the trial evidence might vary from that considered by the grand jury: recollections evolve over time; a trial might involve additional or different witnesses; a grand jury witness might simply change his testimony at trial. E.g., Clark v. Newbauer, 148 A.D.3d 260, 266 (1st Dept. 2017) (grand jury's decision "is not a final adjudication. It is not a proceeding designed to give the parties a full and fair opportunity to litigate issues"); People v. Peterson, 205 A.D.2d 456 (1st Dept. 1994) (People impeached their witness with his own grand jury testimony). Thus, as the Court of Appeals has noted, "When [a case where the indictment includes multiplicitous counts] is tried, the court can reevaluate the evidence and decide how many crimes the trial jury should consider." Alonzo, 16 N.Y.3d at 271. Emphasis added.
A final determination of multiplicitousness can only be made after the court has heard the trial evidence. It cannot be made simply by reviewing the testimony considered by the grand jury. Here, therefore, the Court agrees that counts 1 and 2 might well be multiplicitous, but the final word can come only after all of the trial evidence has been presented, should defendant decide to renew this motion then.
C. Pre-Trial Dismissal of a Multiplicitous Count Is Not the Remedy.
As to the remedy for multiplicitousness when a trial court finds it, the Court first notes that the CPL expressly prohibits duplicitous counts. CPL § 200.30. This prohibition renders a duplicitous count "defective," CPL § 210.25(1), in that it "does not substantially conform to the requirements stated in article 200." Id. For this reason, dismissal before trial of a duplicitous count is required. E.g., People v. Gellineau, 178 Misc.2d 790, 794 (Sup. Ct. Kings County 1998).
That the legislature did not also expressly tag multiplicitousness as a defect that is outside the "requirements" of "article 200" creates a strong negative inference that the Legislature did not consider an indictment that included multiplicitous counts to be "defective," and did not intend for pretrial dismissal to be the remedy.
Unsurprisingly, strong precedent confirms this. "Where the evidence reasonably permits a grand jury to find that either one or two crimes occurred, an indictment charging two should not be dismissed." Alonzo, 16 N.Y.3d at 271. Emphasis added. The harm of multiplicitousness is the harm that derives from being twice convicted of - or, if this occurs, twice sentenced for - the same offense. Ball v. United States, 470 U.S. 856, 865 (1985). But these double jeopardy principles do not prohibit a defendant from being twice charged with the same offense. Id.
Ball could not have made this any clearer: The government "may seek" a multiplicitous indictment but "the accused may not suffer two convictions or sentences on that indictment." Id. Rather, the trial court should either dismiss one count before submitting them to the jury, or if it does not and the jury returns "guilty verdicts for each count," the judge "should enter judgment on only one of [them]." Id. See also Alonzo, 16 N.Y.3d at 271.
Accordingly, the court adheres to its prior ruling that a pretrial dismissal of one of the probably-multiplicitous counts is not the remedy. Defendant's motion to reargue is denied.
III. CONCLUSION
Defendant's motion to reargue is denied. If the trial evidence establishes that counts 1 and 2 are indeed multiplicitous, and defendant renews this motion, the trial court can either direct the People to elect which count should be submitted to the jury, or the court can sua sponte dismiss one of them.
This constitutes the Decision and Order of the Court.