| People v Black |
| 2009 NY Slip Op 06305 [65 AD3d 811] |
| August 27, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v George Black,Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered June 2, 2005, upon a verdict convicting defendant of the crimes of rape in the seconddegree (eight counts), endangering the welfare of a child (12 counts) and sexual abuse in thethird degree (four counts).
Defendant was charged in a 36-count indictment with multiple counts of rape in the firstdegree, rape in the second degree, sexual abuse in the first degree, sexual abuse in the thirddegree and endangering the welfare of a child, based upon his alleged sexual abuse of hisgirlfriend's stepgranddaughter (born in 1989). Defendant and his girlfriend resided in the sametrailer park where the victim frequently visited her stepgrandmother during the fall of 2003. Thevictim testified that defendant engaged in sexual intercourse with her eight times betweenSeptember 2003 and January 2004. Defendant also allegedly engaged in several additionalinstances of sexual contact with her during that time period. Following a jury trial, defendantwas acquitted of the charges involving forcible compulsion—rape in the first degree andsexual abuse in the first degree—but was convicted of those counts alleging rape in thesecond degree (eight counts), sexual abuse in the third degree (four counts) and endangering thewelfare of a child (12 counts). County Court imposed prison terms of 2
Initially, inasmuch as defendant failed to move for a trial order of dismissal specificallyidentifying any deficiency in the proof, his challenges to the legal sufficiency of the evidence tosupport his convictions of rape in the second degree and sexual abuse in the third degree are notproperly preserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Young, 51 AD3d 1055,1056 [2008], lv denied 11 NY3d 796 [2008]; People v Hilliard, 49 AD3d 910, 912 [2008], lv denied 10NY3d 959 [2008]) and, in any event, are without merit.
We agree, however, with defendant's contention that several counts of the indictment wereduplicitous and that County Court erred in denying defendant's motion to dismiss them. A countin an indictment is duplicitous and, therefore, defective where it charges more than one crime(see CPL 200.30 [1]; People v Keindl, 68 NY2d 410, 417-418 [1986]; People v Dalton, 27 AD3d 779,781 [2006], lvs denied 7 NY3d 754, 811 [2006]). Where a crime is completed by adiscrete act, and where a count in the indictment is based on the repeated occurrence of that actover a course of time, the count includes more than a single offense and is duplicitous (seePeople v Keindl, 68 NY2d at 417-418; People v Crampton, 45 AD3d 1180, 1182 [2007], lvdenied 10 NY3d 861 [2008]). Even if a count is valid on its face, it is nonethelessduplicitous where the evidence presented to the grand jury or at trial "makes plain that multiplecriminal acts occurred during the relevant time period, rendering it nearly impossible todetermine the particular act upon which the jury reached its verdict" (People v Dalton,27 AD3d at 781; see People vWhite, 41 AD3d 1036, 1037-1038 [2007], lv denied 9 NY3d 965 [2007]; People v Bracewell, 34 AD3d1197, 1198-1199 [2006]).
Here, four of the eight convictions of rape in the second degree were rendered duplicitous bythe victim's testimony both before the grand jury and at trial. Counts 11 and 14 both alleged thatdefendant had engaged in sexual intercourse with the victim between September 1, 2003 andDecember 31, 2003. However, the testimony revealed that all but one of the instances of sexualintercourse occurred during that time frame; thus, it is impossible to match specific acts withspecific counts of the indictment (see People v Dalton, 27 AD3d at 781). Likewise,counts 17 and 20 both alleged that defendant had engaged in sexual intercourse with the victimover the course of a single week in December 2003. Again, however, there is no way to matchdefendant's alleged acts with specific counts of the indictment. Therefore, County Court shouldhave dismissed those four counts. "Where, despite a validly drafted indictment, the [grand juryor] trial testimony provides evidence of repeated acts that cannot be individually related tospecific counts in the indictment, the prohibition against duplicitousness has been violated"(People v Jones, 165 AD2d 103, 108-109 [1991], lv denied 77 NY2d 962 [1991][citations omitted]). Moreover, the problem is compounded where, as here, "the court did notlink the testimony of vaginal intercourse sequentially or otherwise to the different counts of theindictment" when instructing the jury (People v Foote, 251 AD2d 346 [1998]; seePeople v Jones, 251 AD2d 350 [1998], lv denied 92 NY2d 900 [1998]). Nor did thecourt instruct the jury that it must arrive at a unanimous verdict with respect to each alleged act,and that it may not use any single act of sexual intercourse to support a guilty verdict on morethan one count (see People v First Meridian Planning Corp., 86 NY2d 608, 616 [1995];People v Foreman, 168 AD2d 928, 929 [1990], lv denied 77 NY2d 994 [1991]).
For the same reasons, counts 12, 15, 18 and 21, which charged defendant with endangeringthe welfare of a child, should be dismissed as they were duplicitous as well. [*3]Endangering the welfare of a child may be committed either by asingle act or through a course of conduct (see People v Keindl, 68 NY2d at 421; People v Scanlon, 52 AD3d 1035,1037 [2008], lv denied 11 NY3d 741 [2008]; People v Manon, 226 AD2d 774,776 [1996], lv denied 88 NY2d 1022 [1996]). Here, counts 12, 15, 18 and 21 eachcharged that crime on the basis of a single act. However, like each of the counts discussed above,the victim's testimony made it impossible to correlate specific acts with specific counts, therebyrendering them duplicitous.
The duplicity problem is even more striking with respect to counts 26, 29, 32 and 35, whichcharged defendant with sexual abuse in the third degree. Those counts were each split intoone-month time frames relating to conduct that was alleged to have occurred during September2003, October 2003, November 2003 and December 2003. However, with respect to each timeframe, the victim testified that the abuse occurred "at least once." Because sexual abuse in thethird degree is not a continuing offense but, rather, is complete upon the commission of adiscrete act (see People v Keindl, 68 NY2d at 420-421), those counts were renderedduplicitous by the victim's testimony and also should have been dismissed by County Court (see People v Levandowski, 8 AD3d898, 899-900 [2004]; People v Jelinek, 224 AD2d 717, 717-718 [1996], lvdenied 88 NY2d 880 [1996], cert denied 519 US 900 [1996]).
Next, counts 27, 30, 33 and 36 charged defendant with endangering the welfare of a childbased on continuing conduct; therefore, they were not duplicitous despite testimony of repeatedoccurrences of such conduct during the relevant time periods (see People v Keindl, 68NY2d at 421). Nonetheless, the counts were multiplicitous because the evidence revealed thatthere was no interruption in the course of conduct such that numerous counts could be alleged(see People v Moore, 59 AD3d809, 810-811 [2009]; People vQuinones, 8 AD3d 589, 589-590 [2004], lv denied 3 NY3d 710 [2004]). Likethe counts charging sexual abuse in the third degree discussed above, these counts were based onconduct alleged to have occurred in September 2003, October 2003, November 2003 andDecember 2003. The People merely divided defendant's course of conduct into arbitraryone-month time frames and charged one count of endangering the welfare of a child for eachmonth. Accordingly, the repetitive counts—30, 33 and 36—should have beendismissed (compare People vThompson, 34 AD3d 931, 932 [2006], lv denied 7 NY3d 929 [2006]).
We, on the other hand, are unpersuaded by defendant's assertion that he did not receive theeffective assistance of counsel at trial. "So long as the evidence, the law, and the circumstancesof a particular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation," defendant's constitutional right to the effectiveassistance of counsel will have been met (People v Baldi, 54 NY2d 137, 147 [1981]).Here, among other things, defense counsel articulated a reasonable and coherent theory of thecase, made appropriate motions and objections and, most importantly, secured an acquittal on thetop counts of the indictment, i.e., those alleging forcible compulsion. Thus, the record as a wholereveals that defendant received meaningful representation by trial counsel (see People vThompkins, 58 AD3d 1068, 1069 [2009], lv denied 12 NY3d 822 [2009]; People v Collins, 56 AD3d 809,810 [2008], lv denied 11 NY3d 923 [2009]).
We next address defendant's contention with respect to his sentence. Rather than specify"which sentences would run concurrently or consecutively . . . , as it should havedone" (People v Faulkner, 36 AD3d951, 953 [2007], lv denied 8 NY3d 922 [2007]), County Court imposed themaximum sentences for all convictions, many of which are reversed herein, and ordered thatthey "run consecutively with each other to the full extent allowed by law." "When [*4]more than one sentence of imprisonment is imposed on a person fortwo or more offenses committed through a single act or omission, . . . the sentences. . . must run concurrently" (Penal Law § 70.25 [2]; see People vFaulkner, 36 AD3d at 953). Thus, the one-year terms imposed for the convictions ofendangering the welfare of a child under counts 3, 6, 9 and 24 of the indictment are required torun concurrently with the sentences for the corresponding convictions of rape in the seconddegree under counts 2, 5, 8 and 23 of the indictment and, in any event, merge with thosesentences (see Penal Law § 70.35). The one-year sentence imposed on theconviction of endangering the welfare of a child alleged in count 27 merges with the sentencesimposed for the convictions of rape in the second degree as well (see Penal Law §70.35). The aggregate prison term, therefore, is 9
Finally, none of defendant's challenges to County Court's handling of jury selection arepreserved for appellate review (seePeople v Hawkins, 11 NY3d 484, 492 [2008], supra; People v Perkins, 62 AD3d 1160,1162 [2009]). Defendant's remaining arguments have been reviewed and found to beunpersuasive.
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is modified,on the law, (1) by reversing so much thereof as convicted defendant of the crimes of rape in thesecond degree under counts 11, 14, 17 and 20 of the indictment, sexual abuse in the third degreeunder counts 26, 29, 32 and 35 of the indictment, and endangering the welfare of a child undercounts 12, 15, 18, 21, 30, 33 and 36 of the indictment, and (2) by directing that defendant'ssentences for endangering the welfare of a child under counts 3, 6, 9 and 24 of the indictmentshall run concurrently with the sentences for rape in the second degree under counts 2, 5, 8 and23 of the indictment; counts 11, 12, 14, 15, 17, 18, 20, 21, 26, 29, 30, 32, 33, 35 and 36dismissed and the sentences imposed thereon vacated, with leave to the People to re-present anyappropriate charges to a new grand jury; and, as so modified, affirmed.
Footnote *: The aggregate sentence reflectsthe four consecutive terms of 2