| People v Singh |
| 2015 NY Slip Op 04157 [128 AD3d 860] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jagmohan Singh, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeannette Lifschitz, and Roni C. Piplani of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered December 12, 2012, convicting him of rape in the second degree(40 counts), rape in the third degree (34 counts), and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, on the facts, and as a matter ofdiscretion in the interest of justice, counts 17 through 40 of the indictment are dismissed,counts 2 through 16 and counts 41 through 74 of the indictment are dismissed with leaveto the People, should they be so advised, to resubmit those charges to another grand jury,and the matter is remitted to the Supreme Court, Queens County, for a new trial on thecharges of rape on the second degree under count 1 of the indictment and endangeringthe welfare of a child under count 75 of the indictment.
The defendant was charged, under counts 1 through 40 of an indictment, withcommitting rape in the second degree (Penal Law § 130.30 [1]) byengaging in sexual intercourse with a person less than 15 years old during successivetwo-week time periods beginning on January 2, 2008. Counts 41 through 74 of theindictment charged the defendant with committing rape in the third degree (Penal Law§ 130.25 [2]) by engaging in sexual intercourse with a person less than 17years old during successive two-week time periods beginning on September 1, 2009.Count 75 of the indictment charged the defendant with endangering the welfare of achild (Penal Law § 260.10 [1]).
A jury trial was held, during which the trial court, without objection, erroneouslyinstructed the jury that, to prove the defendant's guilt of rape in the second degree, thePeople were required to prove that the complainant was incapable of consent because shewas less than 14 years old during the relevant time period (cf. Penal Law§ 130.30 [1] [a person is guilty of rape in the second degree when, "beingeighteen years old or more, he or she engages in sexual intercourse with another personless than fifteen years old"]). The jury convicted the defendant of all counts.
The defendant correctly contends that counts 2 through 16 and counts 41 through 74of the indictment must be dismissed as duplicitous. Contrary to the People's contention,the [*2]defendant's contention that the complainant's trialtestimony rendered these counts duplicitous was preserved for appellate review (see People v Allen, 24 NY3d441, 449 [2014]).
"Each count of an indictment may charge one offense only" (CPL 200.30 [1]). Acount in an indictment is void as duplicitous when that "single count charges more thanone offense" (People vAlonzo, 16 NY3d 267, 269 [2011]; see People v Davis, 72 NY2d 32, 38[1988]; People v Jean, 117AD3d 875 [2014]; People vBlack, 65 AD3d 811, 813 [2009]). Where, as here, the crime charged" 'is completed by a discrete act, and where a count in the indictment is based onthe repeated occurrence of that act over a course of time, the count includes more than asingle offense and is duplicitous' " (People v Jean, 117 AD3d at 877,quoting People v Black, 65 AD3d at 813). " 'Even if a count is valid onits face, it is nonetheless duplicitous where the evidence presented . . . attrial makes plain that multiple criminal acts occurred during the relevant time period,rendering it nearly impossible to determine the particular act upon which the jury reachedits verdict' " (People v Jean, 117 AD3d at 877, quoting People vBlack, 65 AD3d at 813).
Here, counts 2 through 16 and counts 41 through 74 each charged the defendant withcommitting a single act of sexual intercourse within a different two-week time period.Thus, these counts were not duplicitous on their face. However, at trial, the complainanttestified that during each two-week period encompassed by these counts, the defendanthad sexual intercourse with her two to three times per week, for a total of four to sixtimes during each two-week period charged by these counts of the indictment.Accordingly, the complainant's trial testimony demonstrates that these counts arepremised upon multiple acts of rape, and are therefore void as duplicitous (see People v Jean, 117 AD3d875 [2014]; People v Foote, 251 AD2d 346 [1998]; People v Jelinek,224 AD2d 717, 718 [1996]). We therefore vacate the convictions under counts 2 through16 and counts 41 through 74 of the indictment and the sentences imposed thereon, anddismiss those counts of the indictment, with leave to the People, should they be soadvised, to resubmit the charges to another grand jury.
The defendant failed to preserve his contention that the evidence was legallyinsufficient to prove his guilt with respect to counts 17 through 40 because, in light ofthe erroneous jury instructions, the People failed to prove beyond a reasonable doubt theelement pertaining to the complainant's age (see CPL 470.05 [2]). Nevertheless,in conducting weight-of-the-evidence review, we necessarily determine whether thePeople proved each element of the offense beyond a reasonable doubt (see People v Danielson, 9NY3d 342, 349 [2007]; People v Ballenger, 106 AD3d 1375, 1376 n [2013]; People v Newkirk, 75 AD3d853, 855 [2010]). Moreover, we weigh the evidence in light of the elements of thecrimes as charged to the jury without objection (see People v Danielson, 9 NY3dat 349; People v Cooper, 88 NY2d 1056, 1058 [1996]; People v Noble,86 NY2d 814, 815 [1995]; People v White, 50 AD3d 708, 709 [2008]).
Here, since the People did not object to the erroneous jury charge, they were "boundto satisfy the heavier burden" (People v Malagon, 50 NY2d 954, 956 [1980];see People v Kearse, 289 AD2d 507, 508 [2001]; People v Free, 233AD2d 463 [1996]) of proving, for counts 1 through 40, that the defendant engaged insexual intercourse with a person less than 14 years old. Since the evidence demonstratedthat the complainant was 14 years old during the time periods encompassed by counts 17through 40 of the indictment, the People failed to satisfy this burden as to those counts.Accordingly, we vacate the convictions under counts 17 through 40 of the indictment asagainst the weight of the evidence, vacate the sentences imposed thereupon, and dismissthose counts of the indictment.
The defendant failed to preserve for appellate review his contention that the evidencewas legally insufficient to prove his guilt with respect to count 1 of the indictment(see CPL 470.05 [2]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt on that count.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt on that count was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, vacatur of the defendant's conviction of rape in the second degree under[*3]count 1 of the indictment, as well as his conviction ofendangering the welfare of a child under count 75 of the indictment, is required in lightof misconduct committed by the prosecutor during summation. While the defendant'sclaim regarding the comments made by the prosecutor during summation is partiallyunpreserved for appellate review, we nevertheless reach the defendant's unpreservedcontentions in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] [a]; People v Spann, 82AD3d 1013, 1015 [2011]).
"[S]ummation is not an unbridled debate in which the restraints imposed at trial arecast aside so that counsel may employ all the rhetorical devices at his [or her] command"(People v Ashwal, 39 NY2d 105, 109 [1976]). Rather, "[t]here are certainwell-defined limits" (id. at 109). Among other things, "[the prosecutor] must staywithin 'the four corners of the evidence' and avoid irrelevant and inflammatory commentswhich have a tendency to prejudice the jury against the accused" (People vSpann, 82 AD3d at 1015, quoting People v Bartolomeo, 126 AD2d 375, 390[1987] [internal quotation marks omitted]; see People v Ashwal, 39 NY2d at109). A prosecutor would be well-advised not to test these limits, both so as to staywithin his or her proper truth-seeking role (see People v Santorelli, 95 NY2d 412,420-421 [2000]) and so as to avoid the waste of time and expense that occurs when anew trial must be conducted solely on the basis of summation misconduct. Here, theprosecutor surpassed the "well-defined limits" (People v Ashwal, 39 NY2d at109).
The prosecutor acted as an unsworn witness when, in response to defense counsel'ssummation comments regarding the lack of corroborative medical evidence and thefailure to call certain witnesses, the prosecutor told the jury that the uncalled witnesseshad "nothing to offer" and that the medical records the prosecution failed to offer intoevidence were "either irrelevant or cumulative" (see People v Whalen, 59 NY2d273, 281 [1983]; People v Smith, 288 AD2d 496 [2001]; People vBrown, 256 AD2d 414, 416 [1998]). The prosecutor also improperly invited the juryto speculate as to certain matters, despite advance warning by the trial court not toengage in that line of comment (see People v Ashwal, 39 NY2d at 110; People v Marcus, 101 AD3d1046, 1048 [2012]). Further, the prosecutor shifted the burden of proof by telling thejury, and repeatedly returning to this theme, that it had not "heard" any "compellingreason" for the complainant to lie, and by suggesting that the jury would have to convictthe defendant if it did not "buy" the defendant's explanation of certain evidence (seePeople v Spann, 82 AD3d at 1015; People v Levandowski, 8 AD3d 898, 900-901 [2004]; People v Pagan, 2 AD3d879, 880-881 [2003]; People v Bull, 218 AD2d 663, 665 [1995]). Theprosecutor further improperly suggested that the jury would have to conclude that thecomplainant was "evil" in order to acquit the defendant (see People v Pagan, 2AD3d at 880). The prosecutor repeatedly vouched for the complainant, while denigratingthe defense and expressing his personal opinion as to the defendant's lack of credibility(see People v Brown, 26AD3d 392, 393 [2006]; People v Pagan, 2 AD3d at 880; People vWalters, 251 AD2d 433, 434-435 [1998]). Finally, the prosecutor made a number ofinflammatory references to the defendant using the complainant as his "personal sex toy"(see People v Walters, 251 AD2d at 435).
We agree with the defendant that the cumulative effect of the prosecutor's impropersummation comments deprived him of his right to a fair trial (see People v Spann,82 AD3d at 1016; People vBrown, 26 AD3d 392 [2006]; People v Pagan, 2 AD3d at 881).Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trialon counts 1 and 75 of the indictment (see CPL 470.20 [1]; People vAllen, 39 NY2d 916, 917-918 [1976]; People v Pascullo, 120 AD2d 687,689 [1986]). Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.