Opinion
649 KA 16-00192
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Herbert L. ARCH, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of offering a false instrument for filing in the first degree ( Penal Law § 175.35 [1] ). Even assuming, arguendo, that defendant preserved for our review his contention that the indictment was rendered duplicitous by the evidence presented at trial (see People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ), we nevertheless reject that contention.
"A count in an indictment is void as duplicitous when that ‘single count charges more than one offense’ " ( People v. Reid , 198 A.D.3d 819, 820, 156 N.Y.S.3d 79 [2d Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 711, 181 N.E.3d 1139 [2022], quoting People v. Alonzo , 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ; see CPL 200.30 [1] ). "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" ( Reid , 198 A.D.3d at 820, 156 N.Y.S.3d 79 [internal quotation marks omitted]; see People v. Casiano , 117 A.D.3d 1507, 1509, 984 N.Y.S.2d 781 [4th Dept. 2014] ). As relevant to this case, a person is guilty of offering a false instrument for filing in the first degree when, "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he or she offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation" ( Penal Law § 175.35 [1] ; see generally People v. Chaitin , 94 A.D.2d 705, 705, 462 N.Y.S.2d 61 [2d Dept. 1983], affd 61 N.Y.2d 683, 472 N.Y.S.2d 597, 460 N.E.2d 1082 [1984] ; People v. Hure , 16 A.D.3d 774, 775, 790 N.Y.S.2d 591 [3d Dept. 2005], lv denied 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 [2005] ). Here, the sole count of the indictment, charging defendant with offering a false instrument for filing in the first degree, was predicated upon his submission of a single application to register the title of a trailer with the New York State Department of Motor Vehicles (DMV). In addition, the "multiple falsehoods" contained in each document that was included with that application were related, and "each of the falsehoods was intended to mislead" the DMV about the trailer ( People v. Ribowsky , 77 N.Y.2d 284, 289, 567 N.Y.S.2d 392, 568 N.E.2d 1197 [1991] ). Under these circumstances, the sole count of the indictment was not rendered duplicitous by the trial evidence (see id. ; cf. People v. Quinn , 103 A.D.3d 1258, 1258-1259, 962 N.Y.S.2d 527 [4th Dept. 2013] ; see also Reid , 198 A.D.3d at 820, 156 N.Y.S.3d 79 ; People v. Sabo , 16 A.D.3d 920, 920-921, 792 N.Y.S.2d 645 [3d Dept. 2005], lv denied 5 N.Y.3d 794, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005] ).