People v. Kaid, 2005-06898.

• Decision Date: 18 September 2007
• Docket Number: 2005-06898.,2006-07313.
• Citation: 842 N.Y.S.2d 55,2007 NY Slip Op 06900,43 A.D.3d 1077
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ABDO KAID, AMIN KOBAS, AHMED MOGHALESS, and ADIN ZANDIN, Respondents.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 1077

842 N.Y.S.2d 55

2007 NY Slip Op 06900

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ABDO KAID, AMIN KOBAS, AHMED MOGHALESS, and ADIN ZANDIN, Respondents.

2005-06898.

2006-07313.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 18, 2007.

Appeals by the People from (1) so much of an order of the Supreme Court, Kings County (Di Mango, J.), dated June 14, 2005, as, upon reargument, adhered to a prior determination in an order of the same court dated April 27, 2005, granting those branches of the defendants' omnibus motions which were to dismiss the first and third counts of the indictment alleging assault in the second degree and menacing in the second degree, respectively, on the ground that those counts were duplicitous, and (2) so much of an order of the same court dated July 24, 2006, as, upon, sua sponte, reconsidering the order dated June 14, 2005, made upon reargument, adhered to the determination in the order dated June 14, 2005.

Ordered that order dated June 14, 2005, is reversed insofar as appealed from, on the law, upon reargument, the order dated April 27, 2005, is vacated, those branches of the defendants' omnibus motions which were to dismiss the first and third counts of the indictment alleging assault in the second degree and menacing in the second degree, respectively, are denied, the first and third counts of the indictment are reinstated, the order dated July 24, 2006, is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment, and it is further,

Ordered that the appeal from the order dated July 24, 2006, is dismissed as academic in light of our determination on the appeal from the order dated June 14, 2005.

On the evening of July 23, 2004, the complainant was working in a Brooklyn grocery store when he became involved in a dispute with his employer, Amin Kobas, over the payment of back wages. After all of the customers had left the store, manager Ahmed Moghaless instructed another employee, Adin Zandin, to lock the door. Kobas, Moghaless, Zandin, and a fourth man, Abdo Kaid, then allegedly attacked the complainant, beating and kicking him with their hands and feet, and assaulting him with various weapons. According to the complainant, during the course of the assault Moghaless hit him in the head with a gun, Kobas hit him in the face and forehead with a closed knife, and Kaid hit him in the head and back of the neck with a stick. The complainant lost consciousness and suffered injuries which included a broken facial bone. All four assailants were subsequently arrested and indicted on charges, inter alia, of having acted in concert to commit one count of assault in the second degree by use of a dangerous instrument (Penal Law § 120.05 [2]), and one count of menacing in the second degree (Penal Law § 120.14 [1]).

After inspecting and reviewing the grand jury minutes, the Supreme Court dismissed the assault and menacing counts of the indictment, concluding that they were duplicitous. Although the court thereafter granted the People's motion for leave to reargue, it adhered to its determination dismissing the assault and menacing counts. In support of its conclusion that the counts were duplicitous, the court noted that the complainant had testified that three of the four defendants assaulted him with different weapons during the attack, and that each weapon caused discrete physical injuries to different parts of his body. The court also reasoned that the assault count had been submitted to the grand jury "in a manner which did not require 12 or more grand jurors to find that any particular item was the instrumentality which caused the complainant's physical injury." During the pendency of the People's appeal from the order made upon reargument, the Supreme Court, sua sponte, reconsidered the issues raised by the parties' prior motions, and adhered to the determination made in that order. We disagree with the court's conclusion that the subject counts are duplicitous, reverse the determination in the order made upon reargument, and reinstate the first and third counts of the indictment.

Each count of an indictment may charge only one offense (see CPL 200.30 [1]), and a count which charges the commission of a particular offense occurring repeatedly during a designated period of time is duplicitous (see People v Keindl, 68 NY2d 410, 417-418 [1986]). The requirement that separate counts of an indictment charge no more than one offense serves to ensure that a defendant is provided with "fair notice of the charges against him so that he can defend himself and establish the defense of double jeopardy if an attempt is made to reprosecute him after acquittal or conviction of those charges" (People v Davis, 72 NY2d 32, 38 [1988]). Prohibiting duplicitous counts also prevents the possibility that individual jurors might vote to convict a defendant of a count on the basis of different offenses, thus permitting a conviction even though no unanimous verdict has been reached (see People v Davis, 72 NY2d at 38; People v Keindl, 68 NY2d at 418).

Here, the defendants were properly charged with one count of assault in the second degree and one count of menacing in the second degree because the charges against them stemmed from a single criminal transaction (see CPL 40.10; Matter of Meldish v Braatz, 99 AD2d 316, 318-319 [1984]). According to the testimony presented to the grand jury, the four defendants, acting in concert, committed one continuous assault upon the complainant over a short period of time, with no pronounced break. The fact that more than one dangerous instrument allegedly was used by the defendants, and more than one blow was struck causing the complainant several injuries, does not transform this single criminal incident into multiple assaults or acts of menacing which must be charged by separate counts (see People v Hines, 39 AD3d 968 [2007]; People v Pyatt, 30 AD3d 265 [2006]; People v Sollars, 91 AD2d 909 [1983]).

Furthermore, the assault and menacing counts of the indictment are not duplicitous merely because of the possibility that a jury could convict the defendants without reaching a unanimous agreement as to which one or more of the three alleged dangerous instruments was used, and which caused the complainant's physical injuries. One of the concerns underlying the prohibition against duplicitousness is that individual jurors might vote to convict a defendant of a single count of an indictment on the basis of different offenses (see People v Keindl, 68 NY2d at 418). However, no such concerns are implicated where, as here, a count charges a single offense but the evidence presented suggests alternative means by which an element of that offense may have been committed.

This point is illustrated by the decision of the Court of Appeals in People v Wells (7 NY3d 51 [2006]). In that case, the defendant and a codefendant were fleeing from the scene of an armed robbery when they encountered two undercover detectives. One of the detectives announced that he was a police officer and ordered the men to stop. The defendant responded by firing his gun twice in the direction of the two detectives as he ran up the street. The defendant subsequently was apprehended and charged with multiple offenses, including attempted murder of a police officer in the first degree. At the close of proof at trial, the defendant moved to dismiss the count of the indictment charging him with attempted murder of a police officer in the first degree, arguing that it was duplicitous because the evidence failed to establish which detective he intended to...