Summary
In People v. Weatherby (32 Misc.3d 1208A, 932 N.Y.S.2d 762 [Troy City Court 2011]), the court held that only one charge of sexual abuse was permitted where the defendant placed his hand on the victim's vagina, and then immediately placed her hand on his penis.
Summary of this case from People v. HernandezOpinion
11-10492.
Decided June 30, 2011.
HON. RICHARD J. McNALLY, Rensselaer County District Attorney, (Shane Hug, Esq., of Counsel), Attorney for the People.
JOSEPH M. AHEARN, ESQ., Attorney for the Defendant.
The above named defendant stands charged with one count of the crime of Sexual Abuse in the Third Degree, in violation of Section 130.55 of the Penal Law of the State of New York and one count of the crime of Forcible Touching, in violation of Section 130.52 of the Penal Law of the State of New York. The defendant has filed an Omnibus motion dated the 10th day of March, 2011 and the People have filed an Affirmation in Opposition dated the 5th day of April, 2011, in response and in opposition thereto.
DISCUSSION
Defendant seeks dismissal of the Sexual Abuse in the Third degree charge pursuant to CPL § 200.30 asserting that the charge as pled is duplicitous. The People, citing People v. Alonzo , ( 16 NY3d 267 ), oppose the motion.
The factual part of the accusatory instrument reads as follows:
"On the aforesaid date, time and location the above defendant did subject another person sexual contact without the latter's consent when he put his hand between the legs of [the complainant] and began rubbing her vagina, without the consent of [the complainant]. The defendant also took the hand of [the complainant] and put it on the defendant's penis, without the consent of [the complainant]."
Sexual contact is defined as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as emission of ejaculate by the actor upon any part of the victim, clothed or unclothed" (PL § 130.00[3], 2011 Pocket Part, at 19).
A count is duplicitous when "a single count charges more than one offense" ( People v. Alonzo , 16 NY3d 267 , 269, citing People v. Bauman , 12 NY3d 152 ; see CPL § 200.30). As the Court of Appeals noted, there exists no fool-proof formula for determining how many different crimes are committed in a particular sequence of events, but generally "it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime ( People v. Alonzo, 16 NY3d at 269). For example, when multiple acts of sexual contact constitutes "a single, uninterrupted occurrence of forcible compulsion" then only one count is appropriate ( People v. Moffitt , 20 AD3d 687 [3d Dept 2005]).
The evils of duplicity are manifold. An accusatory instrument which alleges two or more offenses in single count may, as the Court in Alonzo succinctly stated, "fail to give a defendant adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other"( People v. Alonzo, 16 NY3d at 267; see also People v. Keindl, 68 NY2d 410, 418).
In this case, the accusatory instrument alleges that the defendant "put his hand between the legs of [the complainant] and began rubbing her vagina, without the consent of [the complainant]" and the "defendant also took the hand of [the complainant] and put it on the defendant's penis, without the consent of [the complainant]." Defendant argues that these are separate incidents in time and therefore the charge is duplicitous. The Court disagrees as these acts seem part of an uninterrupted occurrence. In her statement, the complainant states that the defendant first rubbed her vagina and as she attempted to leave he grabbed her and placed her hand on his penis.
Viewed in a light most favorable to the People, the allegations that the defendant placed his hands upon the complainant's vagina without her consent are sufficient to support the charge of Sexual Abuse in the Third degree. The separate act of the defendant taking the complainant's hand and placing it on his penis without the complainant's consent are also sufficient to support the charge of Sexual Abuse in the Third degree and are so close in time to be considered an uninterrupted course of conduct violating a single Penal Law provision against the complainant. The Court finds that the charge of Sexual Abuse in the Third degree is not duplicitous. Therefore, the defendant's motion to dismiss the accusatory instrument charging Sexual Abuse in the Third degree is denied.
This shall constitute the Decision and Order of the Court.
So ordered.