| People v Jagdharry |
| 2014 NY Slip Op 04028 [118 AD3d 722] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Narindat Jagdharry, Appellant. |
Lynn W.L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(Holder, J.), rendered June 14, 2010, convicting him of rape in the second degree (threecounts) and endangering the welfare of a child (two counts), upon a jury verdict, andimposing sentence, and (2) an amended sentence of the same court imposed February 6,2012.
Ordered that the appeal from so much of the judgment as imposed the sentence isdismissed, as that portion of the judgment was superseded by the amended sentence; andit is further,
Ordered that the judgment is reversed, on the law, the amended sentence is vacated,count 10 of the indictment charging rape in the second degree is dismissed insofar as it isasserted against the defendant, and the matter is remitted to the Supreme Court, QueensCounty, for a new trial on the charges of rape in the second degree as charged in counts 9and 12 of the indictment and on the charges of endangering the welfare of a child; and itis further,
Ordered that the appeal from the amended sentence is dismissed as academic in lightof our determination on the appeal from the judgment.
The 23-count indictment alleged that, on October 15, 2005, the defendant and acodefendant, then 20 and 21 years old, respectively, inter alia, each engaged in sexualintercourse with the complainant, who was 14 years old at that time. Count 9 of theindictment charged the defendant and the codefendant, acting in concert, with rape in thesecond degree based on the acts of the codefendant (Penal Law§§ 20.00, 130.30 [1]). Count 10 charged the defendant and thecodefendant, acting in concert, with rape in the second degree based on the acts of thedefendant (Penal Law §§ 20.00, 130.30 [1]). Count 12 charged thedefendant with rape in the second degree based on his own acts (Penal Law§ 130.30 [1]). The defendant was tried alone, and a jury found him guilty ofall three of the counts of rape in the second degree, as well as two counts of endangeringthe welfare of a minor (Penal Law § 260.10 [1]).
Contrary to the People's contention, the defendant preserved for appellate review hisclaim that the counts of rape in the second degree, as charged in count 12, and as chargedagainst him [*2]in count 10, were multiplicitous.Although trial counsel used the word "duplicitous" when arguing that count 10 should bedismissed, it is apparent from the substance of his arguments and their context that hemeant "multiplicitous." An indictment is multiplicitous when a single offense is chargedin more than one count (seePeople v Alonzo, 16 NY3d 267, 269 [2011]; People v Allen, 105 AD3d 754, 756 [2013], lv granted21 NY3d 1013 [2013]; People v Smalls, 81 AD3d 860, 861 [2011]; People vSenisi, 196 AD2d 376 [1994]). Here, counts 10 and 12 charged the defendant withthe same offense, as both counts were based on the same act of sexual intercourse by thedefendant. Accordingly, the Supreme Court should have dismissed, as multiplicitous,count 10 insofar as alleged against the defendant (see People v Alonzo, 16 NY3dat 270-271).
The defendant contends that the evidence was legally insufficient to establish hisguilt of rape in the second degree, as charged in count 9, and that the verdict of guilt onthat count was against the weight of the credible evidence. Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish the defendant's guilt of rape inthe second degree, as charged in count nine of the indictment, beyond a reasonabledoubt. Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the factfinder's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
However, a new trial is required because of an error in the Supreme Court's charge tothe jury. All the elements of an indicted crime which are not conceded by a defendant ordefendant's counsel must be charged to the jury, as each fundamental fact is for the juryto pass upon (see People v Flynn, 79 NY2d 879, 881 [1992]; People vLewis, 64 NY2d 1031, 1032 [1985]; People v Walker, 198 NY 329, 334[1910]). Furthermore, CPL 300.10 imposes upon the trial court in a criminal case amandatory duty to deliver a charge to the jury that specifically designates the counts andoffenses contained and charged in the indictment that the jury is to consider, and todefine each offense so submitted and instruct the jury to render a verdict separately andspecifically upon each count submitted to it (see CPL 300.10 [4]).
Here, before instructing the jurors on the specific elements of the offenses charged,the Supreme Court explained the theory of acting in concert and, consistent with thepattern Criminal Jury Instructions, stated that, while their verdict on each count had to beunanimous, they "need not be unanimous on whether the defendant committed the crimepersonally or by acting in concert or both" (see CJI2d [NY] Accessorial Liability;see also Penal Law § 20.00). When the Supreme Court reached thatpart of its charge in which it would instruct on the specific elements of the offenses, thecourt first told the jurors that they would receive a verdict sheet that detailed each of thecounts that was being charged against the defendant. The court then instructed the jurorson the specific statutory elements of each offense. Where multiple counts were based onthe same statute, the court bundled those counts together and gave the jurors oneinstruction defining the crime. Thus, for example, when the court instructed the jury onrape in the second degree, it told them that counts 7, 8, and 9 on the verdict sheet chargedrape in the second degree. It then defined the statutory elements of that crime andinstructed the jurors that if they found that the People had proved beyond a reasonabledoubt "each of these elements with respect to each of the 7, 8, and 9 counts you must findthe defendant guilty of the crime of Rape in the Second Degree as charged in each of the7, 8, and 9 counts." The court, however, never defined the counts separately or otherwiseexplained how the counts differed from one another. Moreover, when the courtinstructed the jurors on the element of sexual intercourse, it told them that they must findthat the defendant "personally or acting in concert with another person engaged in sexualintercourse with [the complainant]."
We agree with the defendant that the charge, as given, suggested that if the juryfound the defendant guilty of any one of the subject counts, it should find him guilty ofall three counts. Furthermore, because the court's charge failed to define the counts in away that would distinguish them from one another, the jury could not have known whichcount was based on a finding that the defendant had engaged in sexual intercourse withthe complainant and which count was based on accessorial liability and a finding that thecodefendant had engaged in sexual intercourse with the [*3]complainant. Contrary to the People's contention,parenthetical notations on the verdict sheet cannot supplant a court's duty to charge thejury as required by CPL 300.10 (4). Since it is not possible to determine whether the juryhere actually found that the defendant had himself engaged in sexual intercourse with thecomplainant or that he had acted as an accessory to the codefendant's sexual intercoursewith the complainant, the defendant is entitled to a new trial on those charges (cf.People v Damiano, 87 NY2d 477, 482 [1996]; People v Flynn, 79 NY2d at882; People v Lewis, 64 NY2d at 1032; People v Walker, 198 NY at335).
In addition, count 21 of the indictment charged the defendant and the codefendant,acting in concert, with endangering the welfare of a child, and count 23 of the indictmentcharged the defendant alone with endangering the welfare of a child. Because the court'sinstruction on the crime of endangering the welfare of a child was flawed in the sameway, the defendant is entitled to a new trial on those charges as well.
In light of our determination, we need not reach the defendant's remainingcontentions. Skelos, J.P., Balkin, Hall and Maltese, JJ., concur.