Opinion
November 15, 1988
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously reversed on the law, indictment dismissed with leave to the People to resubmit the matter to another Grand Jury. Memorandum: The indictment charged defendant with six counts of sodomy and six counts of sexual abuse, all involving victims under the age of 11. Prior to trial, defendant unsuccessfully moved to dismiss the indictment upon the ground that each count alleged more than one offense and was, therefore, duplicitous (see, CPL 200.30; 200.50 [3]). During argument of the motion to dismiss, the prosecutor indicated that he intended to submit proof of only one act for each count at trial; instead, he elicited evidence of multiple acts on the sodomy counts. "[W]here a crime is made out by the commission of one act, that act must be the only offense alleged in the count" (People v. Keindl, 68 N.Y.2d 410, 417, rearg denied 69 N.Y.2d 823). Those counts of the indictment charging sexual abuse allege in conjunctive fashion the commission of two distinct acts, either of which would constitute a separate and distinct offense. The same conjunctive allegations are set forth in each of the sodomy counts. Each count of the indictment alleges, therefore, more than one offense (see, People v. James, 98 A.D.2d 863, 865; People v. Pries, 81 A.D.2d 1039). Furthermore, the court submitted all of the acts to the jury, and we are unable to conclude that the jury reached a unanimous verdict as to any one act.
Although the proof as to each conviction was overwhelming, the indictment must be dismissed (see, People v. Keindl, 68 N.Y.2d 410, supra). Were we to consider the remaining issues, we would find defendant's claims to be without merit.