People v. Keindl

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: ALEXANDER; WACHTLER; KAYE
• Citation: People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 (N.Y. 1986)
• Decision Date: 20 November 1986
• Parties: , 502 N.E.2d 577 The PEOPLE of the State of New York, Respondent, v. Joseph KEINDL, Appellant.

Page 790

509 N.Y.S.2d 790

68 N.Y.2d 410, 502 N.E.2d 577

The PEOPLE of the State of New York, Respondent, v. Joseph KEINDL, Appellant.

Court of Appeals of New York.

Nov. 20, 1986.

Howard D. Stave, Manhasset Hills, for appellant.

John J. Santucci, Dist. Atty. (William Schrager, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Charged in a 32-count indictment with the crimes of sodomy, sexual abuse and endangering the welfare of a child, committed against his three stepchildren, defendant stands convicted of 26 of those 32 counts. The Appellate Division affirmed the convictions, correctly rejecting defendant's contentions that the corroboration requirements of Penal Law § 130.16 were not met, that the evidence adduced as to forcible compulsion was insufficient under Penal Law § 130.00(8), and that certain verdicts were repugnant, finding this latter claim not preserved and insubstantial in any event. The Appellate Division also found defendant's arguments that the indictment was defective because of duplicity and a lack of specificity unmeritorious. We disagree and conclude that because 15 of the 26 counts of which defendant was convicted failed to comply with the requirements of CPL 200.30(1) or were, under the circumstances, violative of the specificity requirements of CPL 200.50(6), the order of the Appellate Division should be modified by vacating the judgment of conviction as to those counts and dismissing them, and as so modified, affirmed.

I

The indictment charged Joseph Keindl with 12 counts of sodomy in the first degree (Penal Law § 130.50), 2 counts of sodomy in the second degree (Penal Law § 130.45), 10 counts of sexual abuse in the first degree (Penal Law § 130.65), 5 counts of sexual abuse in the second degree (Penal Law § 130.60), and 3 counts of endangering the welfare of a child (Penal Law § 260.10), all arising out of accusations by his three stepchildren, Patricia, Richard and Christine, that he sexually abused them over a period of approximately three years, the pattern of abuse allegedly having begun when the children were 8, 9 and 11 years old, respectively.

According to the trial testimony of the three children, defendant generally would enter their bedroom, which they shared, in the early morning hours between 3:00 and 6:00 A.M., and approach one of the beds. He would shake that particular child awake and then force the child's mouth onto his penis. If the child was one of the stepdaughters, he occasionally would lift her night shirt and touch her breasts or vagina. The evidence established, in addition, that some acts occurred in the living room and in the parents bedroom during the afternoon and evening hours. All of the incidents took place within the home, but outside of the mother's view. None of the children discussed the incidents with their mother or with each other until Patricia broke the pattern of silence by revealing the events to her mother in a letter. It was that letter which led ultimately to defendant's arrest and the instant prosecution.

All of the children testified they were afraid to resist the defendant's demands because he threatened to hit them if they refused his advances and indeed, had hit them in the past when he was displeased with them. The children generally did not actually see defendant engage a sibling in sexual acts, although Richard testified he saw defendant touch Christine's breasts on two occasions, and all three children testified to having heard the defendant routinely approach a sibling's bed in the middle of the night, stand over the bed for several minutes, and then leave the room with that child in tears.

Twenty-six counts of the indictment alleged that the offenses occurred during designated periods of time, extending for as long as two years. A voluntary disclosure form served by the People provided some additional information as to the dates of the alleged offenses and also indicated that for certain counts, the alleged acts occurred several times per week during the designated time period. Defendant moved to dismiss the indictment because it charged multiple offenses in individual counts in violation of CPL 200.30(1) ¹ and because it failed to allege with sufficient specificity the time of occurrence of the alleged offenses as required by CPL 200.50(6). ² The trial court denied the motion. Recognizing, however, that the defendant was entitled to more specific dates, the trial court directed that further information be sought through a bill of particulars. In response to defendant's subsequent demand for a bill of particulars, the People furnished an affirmation by an Assistant District Attorney which provided specific dates for some counts and narrowed the time periods for others. For many counts, however, the original time periods alleged remained unchanged. Defendant again moved to dismiss the indictment because of duplicity and lack of specificity, but the trial court again denied the motion.

At trial, the defendant testified on his own behalf. He acknowledged living with his wife and stepchildren during the designated periods and admitted having entered the children's bedroom at night but asserted that he did so only to check on the children or to cover them up or to close the window when necessary. He denied ever having committed any of the sexual acts alleged by the children. The jury acquitted defendant of six counts of sodomy but convicted him of the remaining 26 counts. The Appellate Division affirmed the convictions (117 A.D.2d 679, 498 N.Y.S.2d 417), and the case is before us by leave of a Judge of this court.

II

We begin our discussion by again reaffirming the principle that an indictment must provide the accused with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense (People v. Morris, 61 N.Y.2d 290, 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256; People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Bogdanoff, 254 N.Y. 16, 23, 171 N.E. 890). It is equally fundamental that an indictment must allege the crime charged with sufficient specificity to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense (People v. Morris, supra, 61 N.Y.2d at p. 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256; People v. Iannone, supra, 45 N.Y.2d at p. 595, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Williams, 243 N.Y. 162, 165, 153 N.E. 35; People v. Helmer, 154 N.Y. 596, 600, 49 N.E. 249). Thus, the Criminal Procedure Law mandates that an indictment contain "separate accusation or count addressed to each offense charged, if there be more than one" and "plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and the defendant's * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation" (CPL 200.50 200.30).

Although CPL 200.50(6) commands that an indictment contain a statement in each count indicating that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time, we have said that the statute neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be stated (People v. Morris, 61 N.Y.2d 290, 473 N.Y.S.2d 769, 461 N.E.2d 1256, supra). Nevertheless, the interval of time set forth in each count must reasonably "serve[] the function of protecting defendant's constitutional right 'to be informed of the nature and cause of the accusation' " (People v. Morris, supra, at p. 294, 473 N.Y.S.2d 769, 461 N.E.2d 1256; People v. Iannone, supra, 45 N.Y.2d at p. 594, 412 N.Y.S.2d 110, 384 N.E.2d 656) so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecution for the same crime. As we emphasized in Morris, "order for a defendant to make his defense 'with all reasonable knowledge and ability' and to have 'full notice of the charge', it is important that the indictment 'charge the time and place and nature and circumstances of the offense with clearness and certainty' " (People v. Morris, 61 N.Y.2d 290, 295, 473 N.Y.S.2d 769, 461 N.E.2d 1256, supra, quoting United States v. Cruikshank, 92 U.S. (2 Otto) 542, 566, 23 L.Ed. 588).

It is equally essential to the defendant's ability to make a defense and to plead the judgment in bar of any further prosecution that he not be called upon to answer for more than one offense in each count of an indictment. Indeed the CPL requires not only that each count specify a time when or during which the crime was committed, but also specifically demands that each count of an indictment charge only one offense (CPL 200.30 200.50 see also, People v. Klipfel, 160 N.Y. 371, 374, 54 N.E. 788). Hence, where a crime is made out by the commission of one act, that act must be the only offense alleged in the count. Put differently, acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149; People v. Brannon, 58 A.D.2d 34, 394 N.Y.S.2d 974), and where one count alleges the commission of a particular offense occurring repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous. (People v. MacAfee, supra.) The prohibition against duplicity furthers not only the functions of notice to a defendant and of assurance against double jeopardy, but also ensures the reliability of the unanimous verdict. If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand...