| People v Kaid |
| 2007 NY Slip Op 06900 [43 AD3d 1077] |
| September 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v AbdoKaid, Amin Kobas, Ahmed Moghaless, and Adin Zandin,Respondents. |
—[*1] Steven Banks, New York, N.Y., (William B. Carney of counsel) for respondent AhmedMoghaless.
Appeals by the People from (1) so much of an order of the Supreme Court, Kings County (DiMango, J.), dated June 14, 2005, as, upon reargument, adhered to a prior determination in anorder of the same court dated April 27, 2005, granting those branches of the defendants' omnibusmotions which were to dismiss the first and third counts of the indictment alleging assault in thesecond degree and menacing in the second degree, respectively, on the ground that those countswere duplicitous, and (2) so much of an order of the same court dated July 24, 2006, as, upon,sua sponte, reconsidering the order dated June 14, 2005, made upon reargument, adhered to thedetermination in the order dated June 14, 2005.
Ordered that order dated June 14, 2005, is reversed insofar as appealed from, on the law,upon reargument, the order dated April 27, 2005, is vacated, those branches of the defendants'omnibus motions which were to dismiss the first and third counts of the indictment allegingassault in the second degree and menacing in the second degree, respectively, are denied, the firstand third counts of the indictment are reinstated, the order dated July 24, 2006, is vacated, andthe matter is remitted to the Supreme Court, Kings County, for further proceedings on theindictment, and it is further,[*2]
Ordered that the appeal from the order dated July 24,2006, is dismissed as academic in light of our determination on the appeal from the order datedJune 14, 2005.
On the evening of July 23, 2004, the complainant was working in a Brooklyn grocery storewhen he became involved in a dispute with his employer, Amin Kobas, over the payment of backwages. After all of the customers had left the store, manager Ahmed Moghaless instructedanother employee, Adin Zandin, to lock the door. Kobas, Moghaless, Zandin, and a fourth man,Abdo Kaid, then allegedly attacked the complainant, beating and kicking him with their handsand feet, and assaulting him with various weapons. According to the complainant, during thecourse of the assault Moghaless hit him in the head with a gun, Kobas hit him in the face andforehead with a closed knife, and Kaid hit him in the head and back of the neck with a stick. Thecomplainant lost consciousness and suffered injuries which included a broken facial bone. Allfour assailants were subsequently arrested and indicted on charges, inter alia, of having acted inconcert to commit one count of assault in the second degree by use of a dangerous instrument(Penal Law § 120.05 [2]), and one count of menacing in the second degree (Penal Law§ 120.14 [1]).
After inspecting and reviewing the grand jury minutes, the Supreme Court dismissed theassault and menacing counts of the indictment, concluding that they were duplicitous. Althoughthe court thereafter granted the People's motion for leave to reargue, it adhered to itsdetermination dismissing the assault and menacing counts. In support of its conclusion that thecounts were duplicitous, the court noted that the complainant had testified that three of the fourdefendants assaulted him with different weapons during the attack, and that each weapon causeddiscrete physical injuries to different parts of his body. The court also reasoned that the assaultcount had been submitted to the grand jury "in a manner which did not require 12 or more grandjurors to find that any particular item was the instrumentality which caused the complainant'sphysical injury." During the pendency of the People's appeal from the order made uponreargument, the Supreme Court, sua sponte, reconsidered the issues raised by the parties' priormotions, and adhered to the determination made in that order. We disagree with the court'sconclusion that the subject counts are duplicitous, reverse the determination in the order madeupon reargument, and reinstate the first and third counts of the indictment.
Each count of an indictment may charge only one offense (see CPL 200.30 [1]), anda count which charges the commission of a particular offense occurring repeatedly during adesignated period of time is duplicitous (see People v Keindl, 68 NY2d 410, 417-418[1986]). The requirement that separate counts of an indictment charge no more than one offenseserves to ensure that a defendant is provided with "fair notice of the charges against him so thathe can defend himself and establish the defense of double jeopardy if an attempt is made toreprosecute him after acquittal or conviction of those charges" (People v Davis, 72 NY2d32, 38 [1988]). Prohibiting duplicitous counts also prevents the possibility that individual jurorsmight vote to convict a defendant of a count on the basis of different offenses, thus permitting aconviction even though no unanimous verdict has been reached (see People v Davis, 72NY2d at 38; People v Keindl, 68 NY2d at 418).
Here, the defendants were properly charged with one count of assault in the second degreeand one count of menacing in the second degree because the charges against them stemmed froma single criminal transaction (see CPL 40.10; Matter of Meldish v Braatz, 99AD2d 316, 318-319 [1984]). According to the testimony presented to the grand jury, the fourdefendants, acting in concert, committed one continuous assault upon the complainant over ashort period of time, with no pronounced break. The fact that more than one dangerousinstrument allegedly was used by the [*3]defendants, and morethan one blow was struck causing the complainant several injuries, does not transform this singlecriminal incident into multiple assaults or acts of menacing which must be charged by separatecounts (see People v Hines, 39AD3d 968 [2007]; People vPyatt, 30 AD3d 265 [2006]; People v Sollars, 91 AD2d 909 [1983]).
Furthermore, the assault and menacing counts of the indictment are not duplicitous merelybecause of the possibility that a jury could convict the defendants without reaching a unanimousagreement as to which one or more of the three alleged dangerous instruments was used, andwhich caused the complainant's physical injuries. One of the concerns underlying the prohibitionagainst duplicitousness is that individual jurors might vote to convict a defendant of a singlecount of an indictment on the basis of different offenses (see People v Keindl, 68 NY2dat 418). However, no such concerns are implicated where, as here, a count charges a singleoffense but the evidence presented suggests alternative means by which an element of thatoffense may have been committed.
This point is illustrated by the decision of the Court of Appeals in People v Wells (7 NY3d 51[2006]). In that case, the defendant and a codefendant were fleeing from the scene of an armedrobbery when they encountered two undercover detectives. One of the detectives announced thathe was a police officer and ordered the men to stop. The defendant responded by firing his guntwice in the direction of the two detectives as he ran up the street. The defendant subsequentlywas apprehended and charged with multiple offenses, including attempted murder of a policeofficer in the first degree. At the close of proof at trial, the defendant moved to dismiss the countof the indictment charging him with attempted murder of a police officer in the first degree,arguing that it was duplicitous because the evidence failed to establish which detective heintended to kill. However, the trial court submitted both attempted murder of a police officer inthe first degree, and the lesser-included offense of attempted murder in the second degree, to thejury. The trial court instructed the jury that the greater offense required a finding that thedefendant intended to kill a police officer who was engaged in the course of performing hisofficial acts, and that the lesser offense required a finding that the defendant intended to cause thedeath of "another person." The defendant objected to these instructions on the ground that theywould allow the jury to convict without unanimously identifying the individual that he sought tokill, and that the count of attempted murder in the first degree was therefore duplicitous. Thedefendant was ultimately convicted of the lesser-included offense of attempted murder in thesecond degree. On appeal, he continued to maintain that the count of attempted murder in thefirst degree was duplicitous because the evidence at trial failed to specify which officer heintended to kill. In rejecting the defendant's argument, the Court of Appeals noted that theoffense of murder in the first degree pursuant to Penal Law § 125.27 (1) (a) (i) iscommitted when, with intent to kill a police officer engaged in the performance of official duties,the defendant causes the death of that officer or a third person, and the defendant knew orreasonably should have known that the intended victim was a police officer. The Court alsonoted that the lesser-included offense of murder in the second degree similarly required an intentto kill, but that that intent could be directed at "another person" who need not be a police officer.The Court then reasoned that since the identity of the specific police officer against whom thedefendant's murderous intent was directed was not an element of attempted murder in the firstdegree or attempted murder in the second degree, the trial court's refusal to instruct the jury that ithad to unanimously determine which detective the defendant intended to kill did not render theattempted murder counts duplicitous. The Court concluded that each count charged a singlecrime based on a single incident that tended to effect the crime of murder, accomplished whilethe defendant acted with the intent to cause the death of a police officer or another person.[*4]
Analogously, it has also been held that a count of anindictment which charges a defendant with burglary is not duplicitous where it is based upon anintent to commit one of two different crimes inside a dwelling. In People v Gilbo (28 AD3d 945[2006]), the defendant was charged with burglary in the second degree and grand larceny in thefourth degree based on allegations that she broke into a trailer where she believed her estrangedhusband was staying, and stole items belonging to a tenant who resided in the trailer. At trial, thePeople introduced evidence that the defendant's husband had obtained an order of protectionagainst her which was in effect at the time of the crime. The defendant was convicted of petitlarceny and criminal trespass in the second degree, a lesser-included offense of the burglarycount. In rejecting the defendant's argument that the burglary count was duplicitous, theAppellate Division, Third Department, pointed out that in a burglary case, the People are notrequired to state or prove which particular crime the defendant intended to commit within thebuilding unless they limit their theory to one specific crime (see People v Barnes, 50NY2d 375, 379 n 3 [1980]). Thus, the Gilbo court reasoned that "[t]he People couldattempt to prove that defendant, while in the dwelling, intended either to stealproperty—the crime of larceny—or to engage in conduct prohibited by the order ofprotection—the crime of criminal contempt . . . [t]hat the single count ofburglary could be proven based on defendant's intent to commit one of two different crimesinside the building did not render that count of the indictment duplicitous" (People v Gilbo,28 AD3d at 945-946).
Similarly, the Appellate Division, First Department, in People v Frascone (271 AD2d333 [2000]), rejected a defendant's contention that a robbery count was duplicitous because therewas evidence that he had stolen two different types of property. In that case, where the indictmentcharged the defendant with taking the victim's car and money, the court found that the jury hadbeen properly instructed that it could convict the defendant of robbery on the basis of takingeither the car or the money, and concluded that the trial court's determination to charge the jury inthe disjunctive did not render the robbery count of the indictment duplicitous.
It has also been held that where multiple acts constitute one scheme to commit grand larcenyagainst a single victim, a count which so charges is not duplicitous (see People v Arnold, 15 AD3d783; 785 [2005]; People v Kindlon, 217 AD2d 793, 795 [1995]). Thus, in Peoplev Arnold (supra), where the challenged counts charged the defendants with havingsubmitted numerous fraudulent claims for services provided to Medicaid recipients as part of ascheme to unlawfully obtain reimbursement for a particular therapy service, the court concludedthat the counts were not duplicitous despite the obvious possibility that a jury might not agreethat all of the underlying claims were fraudulent.
In the case at bar, the indictment charged the defendants with assault in the second degreepursuant to Penal Law § 120.05 (2), which provides that a person is guilty of this offensewhen, "[w]ith intent to cause physical injury to another person, he causes such injury to suchperson or to a third person by means of a deadly weapon or a dangerous instrument." Thedefendants were also charged with menacing in the second degree under Penal Law §120.14 (1), which provides that a person is guilty of this offense when "[he] or she intentionallyplaces or attempts to place another person in reasonable fear of physical injury . . .by displaying a . . . dangerous instrument." Although both statutory provisionsrequire the use or display of a dangerous instrument, the particular identity of the dangerousinstrument is not an element of these offenses. Accordingly, the defendants may properly becharged with a single count of assault in the second degree based upon evidence that they actedin concert to intentionally cause physical injury to the complainant by means of a dangerousinstrument, regardless of whether more than one dangerous instrument allegedly was used (see People v Holmes, 9 AD3d 689[2004] [legally sufficient evidence to support the defendant's [*5]conviction of burglary in the first degree and a single count ofassault in the second degree was presented where the metal object he used to strike the victim inthe head could have been either a hammer or a screwdriver]). Similarly, the defendants may alsoproperly be charged with a single count of menacing in the second degree based upon evidencethat they acted in concert to intentionally place the complainant in fear of physical injury bydisplaying a dangerous instrument. We thus conclude that the counts of the indictment allegingassault in the second degree and menacing in the second degree are not duplicitous, and shouldbe reinstated.
Motion by the respondent Ahmed Moghaless on appeals from two orders of the SupremeCourt, Kings County, dated June 14, 2005, and July 24, 2006, respectively, to unseal and releaseto him any and all minutes of the grand jury proceedings conducted in the above-entitled action.By decision and order on motion of this Court dated March 3, 2006, the motion was held inabeyance and referred to the Justices hearing the appeals for determination upon the argument orsubmission of the appeals.
Upon the papers filed in support of the motion and the papers filed in opposition or inrelation thereto, and upon this Court's in camera review of the grand jury minutes, and upon theargument of the appeal, it is
Ordered that the motion is denied. Schmidt, J.P., Crane, Krausman and Dickerson, JJ.,concur.