People v. Jelinek
| Decision Date | 26 February 1996 |
| Parties | The PEOPLE, etc., Respondent, v. Roger JELINEK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Matthew Muraskin, Hempstead (Kent V. Moston, Dalit A. Yarden, and Victor M. Levy, of counsel), for appellant.
Denis Dillon, District Attorney, Mineola (Karen Wigle Weiss and Margaret E. Mainusch, of counsel), for respondent.
Before BRACKEN, J.P., and BALLETTA, THOMPSON and HART, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Mackston, J.), rendered May 14, 1993, convicting him of sodomy in the first degree (three counts), sexual abuse in the first degree (26 counts), sexual abuse in the second degree, sexual abuse in the third degree (2 counts), and endangering the welfare of a child (6 counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by (1) reversing the conviction on the fourth count of the indictment charging sexual abuse in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) dismissing the second, fifth, sixth, twelfth, fourteenth through sixteenth, and eighteenth through twenty-ninth counts of the indictment, with leave to the People, should they be so advised, to resubmit any appropriate charges arising out of the conduct underlying these counts to another Grand Jury; as so modified, the judgment is affirmed.
The defendant contends that the indictment is defective, because, among other reasons, it contains duplicitous counts. "Each count of an indictment may charge one offense only" (CPL 200.30[1]. "A basic reason underlying the proscription of duplicitous counts is that it tends to ensure the reliability of a unanimous verdict" (People v. Davila, 198 A.D.2d 371, 373, 603 N.Y.S.2d 185; see also, People v. Davis, 72 N.Y.2d 32, 38, 530 N.Y.S.2d 529, 526 N.E.2d 20; People v. Keindl, 68 N.Y.2d 410, 418, 509 N.Y.S.2d 790, 502 N.E.2d 577). A count is duplicitous when it alleges the commission of a particular offense occurring repeatedly during a designated period of time (see, CPL 200.30[1]; 200.50[3].
Here, the indictment charged the defendant with, among other things, multiple counts of sexual abuse. The crime of sexual abuse is a single act crime and each act must be charged separately (see, People v. Keindl, supra, at 420-421, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. Beauchamp, 74 N.Y.2d 639, 640-641, 541 N.Y.S.2d 977, 539 N.E.2d 1105). Each count in the indictment, on its face, complied with CPL 200.30. However, the complainants' trial testimony rendered the second, fifth, sixth, twelfth, fourteenth through sixteenth and eighteenth through twenty-ninth counts of the indictment duplicitous because the testimony indicated that the sexual abuse occurred on more than one occasion during the designated period of time stated in those counts (see, People v. Davila, supra; People v. Romero, 147 A.D.2d 358, 537 N.Y.S.2d 523).
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see, CPL 470.05[2]; People v. Pinder, 199 A.D.2d 544, 608 N.Y.S.2d 98). In any...
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