Opinion
No. 10–200904.
2010-08-27
PEOPLE of the State of New York v. Jamal REID, Defendant.
P. David Soares, Esq., Peter M. Torncello, Esq., Albany County District Attorney, Albany. Matthew B. Hauf, Esq., Assistant District Attorney.
P. David Soares, Esq., Peter M. Torncello, Esq., Albany County District Attorney, Albany. Matthew B. Hauf, Esq., Assistant District Attorney.
Meaghan Leisenfelder, Esq., Assistant Public Defender.
THOMAS K. KEEFE, J.
The defendant, Jamal Reid, was charged on April 14, 2010 with one count of harassment in the second degree, a violation, in violation of Penal Law § 240.26(1). By notice of motion filed on May 18, 2010, through his attorney, Meaghan Leisenfelder, Esq., the defendant moves for omnibus relief. The People have responded through the affirmation in opposition of Matthew B. Hauf, Esq. filed on June 1, 2010. The matter now comes before the Court for a decision.
Motion to Dismiss
The defendant has moved to dismiss the information charging her with harassment in the second degree as duplicitous. Criminal Procedure Law § 200.30 provides, “[e]ach count of an indictment may charge one offense only.” The proscription against duplicitous counts applies to misdemeanor complaints and informations (see People v. Evangelista, 1 Misc.3d 873, 878 [NY City Crim.Ct., 2003]; People v. Minton, 170 Misc.2d 272, 273, [NY City Crim.Ct.,1996]; People v. Mitchell S., 151 Misc.2d 208, 211 [NY City Crim.Ct.,1991] ); People v. Rios, 142 Misc.2d 357, 358–359 [NY City Crim.Ct.,1989]; People v. Todd, 119 Misc.2d 488, 489–490 [NY City Crim.Ct.1983] ).
As is relevant here, the factual portion of the information provides in relevant part:
“ON TUESDAY 03/09/2010 BETWEEN 3:30 P.M. AND 3:34 P.M. JAMAL REID DID KNOWINGLY AND UNLAWFULLY ATTEMPT TO STRIKE AND PUNCH ME TWICE AFTER HE WAS TERMINATED BY ME. AFTER HIS TERMINATION, JAMAL REID BACAME HOSTILE AND STATED TO ME “I'M GONNA KICK YOUR ASS AND I'M GONNA KILL YOU, I KNOW WHERE YOU LIVE”. SAID THREATS OF PHYSICAL INJURY BY JAMAL REID CAUSE ME TO SUFFER ANNOYANCE AND ALARM .”
The defendant argues that the above facts impermissibly set forth two separate alleged incidents that occurred at two different times. The People oppose the motion arguing that the alleged conduct by defendant is not two separate incidents that occurred at separate times, but one offense of harassment in the second degree based upon both the alleged words and actions of the defendant that occurred within a four minute time period.
Where crimes are independently committed and are separate and distinct from one another, they must be charged in separate counts (see People v. Brannon, 58 A.D.2d 34 (4 Dep't 1977). It should be noted that harassment in the second degree, is not a continuing crime (see People v. Gelin, 2002 WL 31962699 [NY City Crim Court 2002] ). Moreover, it has been held that “the gravamen of the offense of harassment [ ] is the striking of another person [or attempting or threatening to do the same]. As with the offense of assault, although there may be a series of blows in a particular incident such that the striking is repeated or continuous, once the criminal incident has ended, as evidenced by the lapse of a period of time, the offense is complete ” ( id.). This Court holds that the factual allegations as set forth in the accusatory instrument indicate that defendant's acts as described constitute a single uninterrupted occurrence.
However, “[t]he rule against duplicitous pleadings [also] ensures the reliability of the unanimous verdict. If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses” ( People v. Evangelista, supra, citing People v. Keindl, 68 N.Y.2d 410 [1986] ).
“A person is guilty of harassment in the second degree [pursuant to Penal Law § 240.26(1) ] when, with intent to harass ... another person he ... subjects such other person to physical contact, or attempts or threatens to do the same. Penal Law § 240.26(1) [emphasis added]. Therefore, a person can be convicted under this statute for striking someone, attempting to strike someone or threatening to strike someone.
Here, the information states that defendant attempted to strike the complainant and threatened to do so. Defendant could have been arrested under this statute for either of these alleged acts as they are separate and distinct acts. However, the information alleges both acts in just one information. This would allow individual jurors to convict a defendant based upon different findings of fact: some jurors may decide that defendant attempted to strike the complainant, but did not threaten to do so; other jurors may decide that while defendant threatened to strike the complainant, he never attempted to do so. This could result in a conviction without a unanimous verdict. Therefore, this Court finds that the information is duplicitous. Accordingly, defendant's motion to dismiss the information charging harassment in the second degree as duplicitous is granted.
Other Motions
All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court.
SO ORDERED.