People v. Alonzo

• Decision Date: 24 February 2011
• Docket Number: No. 26.,26.
• Parties: The PEOPLE of the State of New York, Appellant,v.Jose Casiano ALONZO, Respondent.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 267
945 N.E.2d 495
920 N.Y.S.2d 302
2011 N.Y. Slip Op. 01363

The PEOPLE of the State of New York, Appellant,
v.
Jose Casiano ALONZO, Respondent.

No. 26.

Court of Appeals of New York.

Feb. 24, 2011.

[920 N.Y.S.2d 302]

Janet DiFiore, District Attorney, White Plains (Raffaelina Gianfrancesco, Lois Cullen Valerio and Anthony J. Servino of counsel), for appellant.Legal Aid Society, White Plains (Joana Otaiza and Stephen J. Pittari of counsel), for respondent.

[16 N.Y.3d 268] [945 N.E.2d 495] OPINION OF THE COURT SMITH, J.

We hold that, where the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse.

I

According to the evidence presented to a grand jury, defendant persuaded two women to visit him in the middle of the night at the apartment of a friend of his. After a short stay, the women decided they wanted to leave, but found that the door was locked and defendant had concealed the key. An argument [16 N.Y.3d 269] on this subject woke

[945 N.E.2d 496 , 920 N.Y.S.2d 303]

another person in the apartment, who persuaded defendant to open the door.

Defendant followed the women out of the building, grabbed one of them from behind and knocked her to the ground. He pinned her down with his body and groped her breasts and buttocks, while the second woman tried to protect her friend by hitting defendant, pulling his hair and screaming. Defendant responded by throwing the second woman down and getting on top of her in turn, groping her breasts and buttocks also. The first victim then came to the aid of the second, hitting and biting defendant and finally ending the encounter with a kick to the stomach that gave the women a chance to run away.

The grand jury indicted defendant on two counts of unlawful imprisonment and four of sexual abuse. Only the sexual abuse counts concern us here. There are two for each victim, the first alleging forcible hand-to-breast contact, the second hand-to-buttocks. (The second count relating to the second victim uses the word “breast” rather than “buttocks,” but the grand jury transcript shows this to be an error.) Defendant moved to dismiss two of the four counts as multiplicitous. County Court granted his motion, and the Appellate Division affirmed ( People v. Alonzo, 62 A.D.3d 720, 877 N.Y.S.2d 695 [2009] ). A Judge of this Court granted the People leave to appeal (13 N.Y.3d 936, 895 N.Y.S.2d 327, 922 N.E.2d 916 [2010] ), and we now affirm.

II

Prosecutors and grand juries must steer between the evils known as “duplicity” and “multiplicity.” An indictment is duplicitous when a single count charges more than one offense ( e.g. People v. Bauman, 12 N.Y.3d 152, 878 N.Y.S.2d 235, 905 N.E.2d 1164 [2009]; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 [1986] ). It is multiplicitous when a single offense is charged in more...