Opinion
February 26, 1996
Appeal from the County Court, Nassau County (Mackston, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by (1) reversing the conviction on the fourth count of the indictment charging sexual abuse in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) dismissing the second, fifth, sixth, twelfth, fourteenth through sixteenth, and eighteenth through twenty-ninth counts of the indictment, with leave to the People, should they be so advised, to resubmit any appropriate charges arising out of the conduct underlying these counts to another Grand Jury; as so modified, the judgment is affirmed.
The defendant contends that the indictment is defective, because, among other reasons, it contains duplicitous counts. "Each count of an indictment may charge one offense only" (CPL 200.30). "A basic reason underlying the proscription of duplicitous counts is that it tends to ensure the reliability of a unanimous verdict" (People v. Davila, 198 A.D.2d 371, 373; see also, People v. Davis, 72 N.Y.2d 32, 38; People v. Keindl, 68 N.Y.2d 410, 418). A count is duplicitous when it alleges the commission of a particular offense occurring repeatedly during a designated period of time (see, CPL 200.30; 200.50 [3]).
Here, the indictment charged the defendant with, among other things, multiple counts of sexual abuse. The crime of sexual abuse is a single act crime and each act must be charged separately (see, People v. Keindl, supra, at 420-421; People v Beauchamp, 74 N.Y.2d 639, 640-641). Each count in the indictment, on its face, complied with CPL 200.30. However, the complainants' trial testimony rendered the second, fifth, sixth, twelfth, fourteenth through sixteenth and eighteenth through twenty-ninth counts of the indictment duplicitous because the testimony indicated that the sexual abuse occurred on more than one occasion during the designated period of time stated in those counts (see, People v. Davila, supra; People v. Romero, 147 A.D.2d 358).
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see, CPL 470.05; People v. Pinder, 199 A.D.2d 544). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt with respect to the third, seventh, and eleventh counts of the indictment. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt with respect to these counts was not against the weight of the evidence (see, CPL 470.15).
The defendant also argues that the evidence adduced at the trial was legally insufficient to prove that he rubbed his penis against the leg of a complainant as charged in the fourth count of the indictment. As the People correctly concede, there was no testimony elicited at trial to support this count. Thus, the fourth count of the indictment is dismissed (see, People v Davila, 198 A.D.2d 371, supra).
It was improper for the prosecutor to elicit testimony from Detective Vashti Anderson and a complainant that the defendant engaged in sexual activities with or in the presence of the defendant's son, because the defendant's son was not named as a complainant in the indictment (see, People v. MacAfee, 76 A.D.2d 157, 160). However, such error does not require reversal of the remaining counts.
The defendant's remaining contentions are either without merit or do not require reversal. Bracken, J.P., Balletta, Thompson and Hart, JJ., concur.