Opinion
315/06.
Decided March 20, 2008.
Theodore M. Herlich, Esq., for defendant, Ivan Urena.
ADA Shirley Irick, for the People.
This Court previously decided defendant's motion for inspection and/or dismissal of the Grand Jury minutes on May 9, 2006, finding that the evidence before the Grand Jury was legally sufficient, the instructions to the Grand Jury were proper and the proceeding was otherwise unimpaired. The Court also found that the issues in the defendant's motion were straightforward, and that disclosure of the Grand Jury minutes was not necessary to their resolution (see CPL § 210.30). Accordingly, the Court denied defendant's motion to dismiss the indictment.
Over a year and a half later, defendant now argues that Counts Three, Four and Six of that indictment must be dismissed because they are duplicitous in that defendant's conduct in those counts should be viewed as two distinct acts: (a) defendant's act of choking the victim into unconsciousness and (b) defendant's act of setting a fire in the apartment. Defendant also argues that the counts are duplicitous because they do not specify the serious physical injury or physical injury the defendant is accused of causing and the burglary and the felony assault do not specify the underlying crime defendant is accused of either intending to commit or is accused of committing.
Defendant concedes that there are no problems with how Counts One, Two and Five were charged.
The People oppose the motion and argue that defendant's conduct cannot be attributed to two distinct and varying acts, but rather, defendant's conduct must be characterized as one continuous act that cannot be dissected into individual components. The People also state that the lack of specifying the exact injury or underlying crime does not make the crimes duplicitous. The Court agrees with the People.
Each count of an indictment may charge only one offense (see CPL 200.30), and a count which charges the commission of a particular offense occurring repeatedly during a designated period of time is duplicitous (see People v. Keindl, 68 NY2d 410, 417-418). The requirement that separate counts of an indictment charge no more than one offense serves to ensure that a defendant is provided with "fair notice of the charges against him so that he can defend himself and establish the defense of double jeopardy if an attempt is made to reprosecute him after acquittal or conviction of those charges" (People v. Davis, 72 NY2d 32, 38). Prohibiting duplicitous counts also prevents the possibility that individual jurors might vote to convict a defendant of a count on the basis of different offenses, thus permitting a conviction even though no unanimous verdict has been reached (see People v. Davis, 72 NY2d, at 38; People v. Keindl, 68 NY2d, at 418).
Here, the defendant was properly charged with first degree burglary, first degree assault and second degree assault because the charges against him stemmed from a single criminal transaction (see CPL 40.10; Matter of Meldish v. Braatz, 99 AD2d 316, 318-319 [2d Dept.], app. den. 61 NY2d 608). According to the testimony presented to the Grand Jury by the victim, her treating physician, one of the rescuing firefighters and the investigating fire marshal, the defendant, entered and remained in the victim's apartment after the victim expressly informed the defendant he would have to leave the apartment. Defendant then grabbed the victim, threw her onto the bed and choked her while demanding that she engage in sexual intercourse with him. Despite the victim's pleas and physical attempts to free herself from defendant's hold, defendant balled one hand into a fist and struck the victim. Defendant then undressed the victim, placed her inside the bathtub and set a fire in the apartment. Defendant clearly committed one continuous assault upon the complainant over a short period of time, with no pronounced break. The fact that the same acts of defendant support more than one of the crimes committed during the course of this physical and sexual assault on the victim by the defendant, and more than one blow was struck causing the victim several injuries, does not transform this single criminal incident into duplicitous counts of first degree burglary, first degree assault and second degree assault which must be charged by separate counts (see People v. Kaid, 43 AD3d 1077, 1079 [2d Dept. 2007]; People v. Hines, 39 AD3d 968 [3d Dept.], lv. den. 9 NY3d 876; People v. Pyatt, 30 AD3d 265 [1st Dept. 2006]; People v. Sollars, 91 AD2d 909 [1st Dept. 1983]). There is no way to parcel out the acts into individual acts and still satisfy the elements of the crimes charged because neither the assault nor the burglary were complete when the defendant choked the victim unconscious. These crimes were not complete until the unconscious victim suffered from smoke inhalation and respiratory arrest as a result of all of defendant's actions during his attack on the victim.
Defendant also argues that the burglary and felony assault charges are duplicitous because the indictment does not specify the underlying felony. He is mistaken.
Burglary in the First Degree requires proof that a person knowingly entered a building or dwelling "with intent to commit a crime therein" (Penal Law § 140.30). The Court of Appeals has held that the specific crime which defendant intended to commit is not a material element of burglary and therefore, an indictment under this section need not specify the crime which the defendant intended to commit and a defendant is not entitled to a bill of particulars specifying the underlying crime (see People v. Mackey, 49 NY2d 274, 278-279; People v. Gilbo, 28 AD3d 945 [3d Dept. 2006], lv. den. 7 NY3d 756; see also People v. Barnes, 50 NY2d 375, 379 n. 3 [1980]; People v. Kownack, 20 AD3d 681, 682 [3d Dept. 2005]; People v. Brown, 251 AD2d 694, 695-696 [3d Dept.], lv. denied 92 NY2d 1029). The Mackey court noted that had "the Legislature intended the result for which defendant argues it could easily . . . have inserted the word specified' or the word particular' between "a" and "crime" (Id., 49 NY2d, at 279). Thus, the fact that a single count of burglary may be proven based on defendant's intent to commit one of two or more different crimes inside the building does not render that count of the indictment duplicitous" (People v. Gilbo, 28 AD3d, at 945-946; see People v. Frascone, 271 AD2d 333 [1st Dept. 2000]).
Similarly, an indictment under Penal Law § 120.05(6) is not duplicitous because it also need not specify the underlying felony allegedly committed or attempted by defendant (see People v. Baker, 133 Misc 2d 31, 33 [Sup. Ct. N.Y.Co. 1986]). The statute reads "[i]n the course of and in furtherance of the commission of a felony . . . or of immediate flight therefrom . . ." (See Penal Law § 120.05(6]). It does not require a completed felony nor does it enumerate any specific felonies which may serve as a predicate for conviction. Since a statement of the bare elements of the crimes, in effect parroting the statute, is sufficient (see People v. Mackey, 49 NY2d, at 278), an indictment under this section need not specify an underlying felony. In contrast to felony assault is the felony murder statute (Penal Law § 125.25) which reads "[a]cting either alone or with one or more other persons, he commits or attempts to commit" one of ten specifically enumerated felonies. The Legislature "clearly intended to distinguish" the provisions for underlying felonies in the felony murder statute from those in the felony assault statutes (People v. Fanseca, 36 NY2d 133, 135-36; People v. Baker, 133 Misc 2d, at 33).
Applying the reasoning of Mackey to the burglary and felony assault counts charged in the instant indictment, the specific felony underlying the alleged assault is not a material element of either of these counts. The Legislature did not intend that a specific underlying felony become an element of these crimes. Therefore, an indictment under these sections need not specify the underlying felony.
With respect to the defendant's argument that the burglary and assault counts are duplicitous because of the possibility that a jury could convict the defendant without reaching a unanimous agreement as to the cause of the serious physical injury or the underlying felony, the Court finds this concern baseless in this case. One of the concerns underlying the prohibition against duplicitousness is that individual jurors might vote to convict a defendant of a single count of an indictment on the basis of different offenses (see People v. Keindl, 68 NY2d, at 418). However, no such concerns are implicated where, as here, a count charges a single offense but the evidence presented suggests alternative means by which an element of that offense may have been committed (see People v. Kaid, 43 AD3d, at 1079; see People v. Wells, 7 NY3d 51). The Court notes that there is no problem here with determining whether the Grand Jury voted by a proper consensus
as a result of the decision not to specify the underlying felony for the first degree burglary and assault counts as the Grand Jury voted on several other felonies which would qualifying as an underlying crime. Thus, it is clear that a consensus was returned by the Grand Jury.
Moreover, with respect to what the serious physical injury/physical injury is, the Court notes that the People basically state in their response that the serious physical injury in this case was not that the victim was rendered unconscious as a result of defendant choking her, but rather the smoke inhalation and respiratory arrest that she suffered while unconscious after the defendant set the fire. Thus, defendant cannot say that he does not know what injury he is being accused of causing in these counts. Moreover, regardless of whether unconsciousness alone is sufficient to satisfy the requirement that the victim suffer serious physical injury/physical injury, defendant's conduct, under the facts of this case, must be viewed as one continuous steady stream of behavior which caused serious physical injury/physical injury and the proposed distinct acts of choking the victim into unconsciousness and setting fire to the mattress causing her to suffer from smoke and inhalation and respiratory arrest all go to satisfying the element of causing serious physical injury. Thus, these counts of the indictment are not duplicitous based on defendant's acts which cannot be parsed out as suggested by defendant (see People v. Hines, 39 AD3d 968 [no merit in defendant's assertion that the count of the indictment charging him with assault in the second degree was duplicitous because it covered acts occurring both inside and outside the apartment]; People v. Barber, 13 AD3d 898, 899 [3d Dept. 2004], lv. denied 4 NY3d 796).
The Court notes that the People may not be correct when they say that defendant's action of choking the victim into unconsciousness was insufficient to satisfy the element that defendant caused serious physical injury (see People v. Abreu, 283 AD2d 194, 194-195 [1st Dept.], lv. den. 96 NY2d 898 [2001][Element of serious physical injury established where defendant rendered the victim unconscious three times as a result of a chokehold, and the People's expert testified that the type of choking capable of causing loss of consciousness poses a substantial risk of death].
Accordingly, this Court concludes that the counts of the indictment alleging first degree burglary, first degree assault and second degree assault are not duplicitous and the motion to dismiss Counts Three, Four and Five of the indictment is denied in its entirety.
This constitutes that Decision and Order of this Court.