Opinion
No. 212 KA 22-00612
03-22-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MEGAN ZONA, DEFENDANT-APPELLANT.
EASTON THOMPSON KASPEREK SHIFFRIN, LLP, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN, LLP, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, DELCONTE, AND KEANE, JJ.
Appeal from a judgment of the Monroe County Court (Michael L. Dollinger, J.), rendered December 15, 2021. The judgment convicted defendant upon a jury verdict of sexual abuse in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on count 2 of the indictment.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65 [3]), in connection with allegations that she committed a sex offense against the seven-year-old victim.
As defendant contends and the People correctly concede, the victim's trial testimony rendered the indictment with respect to count 2 duplicitous. "Even if a count facially charges one criminal act, that count is duplicitous if the evidence 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" (People v Dalton, 27 A.D.3d 779, 781 [3d Dept 2006], lv denied 7 N.Y.3d 754 [2006], reconsideration denied 7 N.Y.3d 811 [2006]; see People v Dukes, 122 A.D.3d 1370, 1371 [4th Dept 2014], lv denied 26 N.Y.3d 928 [2015]; People v Casiano, 117 A.D.3d 1507, 1510 [4th Dept 2014]). Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant's guilt of count 2.
Because each act of alleged sexual contact constitutes "a separate and distinct offense" (Dukes, 122 A.D.3d at 1372 [internal quotation marks omitted]), the victim's testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed," 'it is impossible to verify that each member of the jury convicted defendant for the same criminal act'" in connection with count 2 (People v Bennett, 52 A.D.3d 1185, 1186 [4th Dept 2008], lv denied 11 N.Y.3d 734 [2008]; see generally People v Keindl, 68 N.Y.2d 410, 417-418 [1986]; People v Kirk, 96 A.D.3d 1354, 1357 [4th Dept 2012], lv denied 20 N.Y.3d 1012 [2013]). Additionally, we conclude that, for similar reasons, it is impossible to determine whether defendant was convicted of an act for which she was not indicted (see People v Graves, 136 A.D.3d 1347, 1348 [4th Dept 2016], lv denied 27 N.Y.3d 1069 [2016]; Dukes, 122 A.D.3d at 1372).
Under the unique circumstances of this case, we do not think it is necessary to dismiss the indictment with leave to re-present to another grand jury (cf. People v Baek, 207 A.D.3d 1086, 1087-1088 [4th Dept 2022]; Dukes, 122 A.D.3d at 1372). We also decline to dismiss the indictment with prejudice (cf. People v McNab, 167 A.D.2d 858, 858 [4th Dept 1990]). Rather, the errors here are not ones that directly relate to the indictment and are easily corrected by a proper charge specifying the proof applicable to the relevant count (see People v Jackson, 174 A.D.2d 444, 446 [1st Dept 1991], appeal dismissed 80 N.Y.2d 112 [1992]). We are not required to dismiss the indictment based on double jeopardy concerns inasmuch as defendant here was acquitted of a course of conduct crime and convicted of a single act crime. Consequently, this case is unlike those cases where the defendant is acquitted of some single act crimes and convicted of others, where it is impossible to determine with any confidence that the jury agreed on which act the People did not meet their ultimate burden (cf. McNab, 167 A.D.2d at 858). Consequently, we reverse and grant defendant a new trial on count 2 of the indictment (see Jackson, 174 A.D.2d at 444).
Contrary to defendant's further contention, defense counsel was not ineffective in failing to seek dismissal of the indictment on statute of limitations grounds, inasmuch as such a motion had" 'little or no chance of success'" (People v Caban, 5 N.Y.3d 143, 152 [2005]; see generally People v Quinto, 18 N.Y.3d 409, 417-418 [2012]; People v Turner, 5 N.Y.3d 476, 481 [2005]).
In light of our conclusion, defendant's remaining contentions are academic.