People v. Branch

• Decision Date: 17 March 1980
• Citation: 426 N.Y.S.2d 291,73 A.D.2d 230
• Parties: The PEOPLE, etc., Respondent, v. George N. BRANCH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 291

426 N.Y.S.2d 291

73 A.D.2d 230

The PEOPLE, etc., Respondent, v. George N. BRANCH, Appellant.

Supreme Court, Appellate Division, Second Department.

March 17, 1980.

Matthew Muraskin, Mineola (Leslie P. Rudman and Michael J. Obus, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (George Freed, Kew Gardens and William C. Donnino, Mineola, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, COHALAN and MARTUSCELLO, JJ.

MARTUSCELLO, Justice.

On July 22, 1977 two robbers entered the Ridgewood Savings Bank. One of them stood guard with a gun while the other jumped over a counter, ordered the tellers to open their cash drawers which contained bank funds, and then took money from each drawer. A total of more than $27,000 was taken.

Based on these acts, the Nassau County Grand Jury, in an indictment dated August 10, 1977, charged the defendant with the crimes of robbery in the first degree (three counts), robbery in the second degree (two counts), grand larceny in the second degree and grand larceny in the third degree (two counts). After trial the jury returned a verdict finding the defendant guilty on the second and third counts of the indictment, each of which charged him with robbery in the first degree.

Defendant raises three issues on this appeal: (1) that he was denied his right to counsel at a lineup; (2) that the second count of the indictment was void for duplicity; and (3) that the sentences imposed were unduly harsh. In my view, only the second issue warrants discussion.

The second count of the indictment charged the defendant with the crime of robbery in the first degree in that he "forcibly stole certain property from Rebecca Kalbfliesch, Linda Murray and Jack Dafgard of the Ridgewood Savings Bank * * * and in the course of the commission of the crime * * * displayed what appeared to be * * * revolvers". The three named individuals are tellers of the said bank.

CPL 200.30 provides as follows:

"1. Each count of an indictment may charge one offense only.

"2. For purposes of this section, a statutory provision which defines the offense named in the title thereof by providing, in different subdivisions or paragraphs, different ways in which such named offense may be committed, defines a separate offense in each such subdivision or paragraph, and a count of an indictment charging such named offense which, without specifying or clearly indicating the particular subdivision or paragraph of the statutory provision, alleges facts which would support a conviction under more than one such subdivision or paragraph, charges more than one offense."

Defendant contends that the second count charged three separate offenses of robbery in the first degree in violation of CPL 200.30. I disagree.

The primary function of an indictment is to inform a defendant of the crimes with which he is being charged, and to do so with sufficient fullness and clarity so as to allow him to prepare for trial (People v. Dairylea Coop., 66 A.D.2d 974, 975, 412 N.Y.S.2d 52). Subdivision 7 of CPL 200.50 requires an indictment to contain "A plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation".

In addition to the primary function of informing a defendant of the charges made against him, an indictment also serves (1) to ensure that the crime for which he is brought to trial is in fact one for which he was charged by the Grand Jury, rather than an alternative seized upon by the prosecutor because of subsequently discovered evidence, and (2) as a means of indicating the crimes for which a defendant has been tried in order to prevent a retrial on the same crime which would violate the prohibition against double jeopardy (People v. Iannone, 45 N.Y.2d 589, 594-595, 412 N.Y.S.2d 110, 113-114, 384 N.E.2d 656, 659-661).

After examining count two of the indictment in light of the traditional purposes to be served by an indictment, it becomes clear beyond cavil that those purposes are completely satisfied. Count two of the indictment unmistakably indicates that defendant is being charged for the July 22, 1977 robbery of the Ridgewood Savings Bank which he accomplished by forcibly stealing property from Rebecca Kalbfliesch, Linda Murray and Jack Dafgard.

The issue, therefore, resolves itself into whether merely as a matter of form the indictment is defective under the provisions of CPL 200.30. Before addressing that issue I note that, "The historical development of the form of indictment presently used in New York exemplifies a continuing attempt to eschew formalism and ritual" (People v. Iannone, supra, p. 595, 412 N.Y.S.2d p. 114, 384 N.E.2d p. 661).

It is apparent that count two of the indictment charged only one offense (see CPL 200.30, subd. 1). While there is no bank robbery statute per se in New York, the indictment cannot be interpreted to mean anything other than that the charge against defendant is robbery in the first degree of the Ridgewood Savings Bank committed by taking money from three employees of the bank. The indictment cannot be construed as charging three separate offenses by virtue of the fact that the three tellers are named therein. The tellers, after all, were employees of the bank and were holding the bank's money rather than their own. "A count of an indictment is not duplicitous if the alleged acts therein were part of a transaction constituting a single continuing offense" (United States v. Cohen, 444 F.Supp. 1314, 1320).

The dissent, in seeking to define "offense" for purposes of subdivision 1 of CPL 200.30, mistakenly points to the definition of that term as it appears in subdivision 1 of CPL 40.10. Said section provides as follows:

"The following definitions are applicable to this article:

"1. 'Offense.' An 'offense' is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense. The same conduct or criminal transaction also establishes separate and distinct offenses when, though violating only one statutory provision, it results in death, injury, loss or other consequences to two or more victims, and such result is an element of the offense as defined. In such case, as many offenses are committed as there are victims." (Emphasis supplied.)

It is true that if the definition of "offense" contained in section 40.10 is applied to CPL 200.30 and the robbery is deemed to have been of the three tellers, the second count of the indictment would be invalid as duplicitous. However, the very wording of section 40.10 precludes its application to section 200.30 since section 40.10 explicitly states, "The following definitions are applicable to this article ", which is an article of the CPL addressed to double jeopardy. The dissent fails to cite any authority for the proposition that CPL 40.10 and CPL 200.30 are to be read in conjunction.

Furthermore, an examination of CPL 200.30 in its entirety indicates that what it seeks to preclude is not that which is presented here. Subdivision 2 of section 200.30 commences by stating, "For purposes of this section". Subdivision 2 thereby shows that its purpose is to explain and clarify what is meant by subdivision 1 of section 200.30. Subdivision 2 then goes on to indicate that where factual allegations of a count of an indictment would support a conviction under more than one subdivision of a statutory...