People v. Levandowski

• Citation: 2004 NY Slip Op 05494,8 A.D.3d 898,780 N.Y.S.2d 394
• Decision Date: 24 June 2004
• Docket Number: 14227.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS M. LEVANDOWSKI, Appellant.
• Court: New York Supreme Court Appellate Division

8 A.D.3d 898

780 N.Y.S.2d 394

2004 NY Slip Op 05494

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS M. LEVANDOWSKI, Appellant.

14227.

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

June 24, 2004.

Appeals (1) from a judgment of the Supreme Court (Ceresia, Jr., J.), rendered October 31, 2002 in Rensselaer County, upon a verdict convicting defendant of the crimes of course of sexual conduct against a child in the first degree (two counts), rape in the first degree (16 counts), rape in the second degree (16 counts), endangering the welfare of a child and criminal contempt in the second degree (four counts), and (2) by permission, from an order of said court, entered October 28, 2003 in Rensselaer County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

CREW III, J.

Defendant was indicted and charged in a 44-count indictment with rape, course of sexual conduct against a child, endangering the welfare of a child and criminal contempt, all arising out of defendant's continued sexual contact with his infant daughter over a six-year period. Defendant moved to dismiss the indictment for various reasons, as a result of which Supreme Court dismissed counts 15, 16, 37, 38 and 44 thereof. Thereafter, defendant was convicted on the remaining counts of the indictment and sentenced to an aggregate term of 50 years' imprisonment. Defendant subsequently moved to vacate his conviction, which motion was denied. Defendant now appeals from his judgment of conviction and the denial of his motion to vacate that conviction.

Initially, defendant contends that Supreme Court erred in failing to dismiss the indictment for duplicitousness. As to those counts charging defendant with rape, except counts 7, 8, 35 and 36, we agree. It is axiomatic that each count of an indictment may charge but one offense (see CPL 200.30 [1]; People v Keindl, 68 NY2d 410, 417-418 [1986]), 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 Keindl, supra at 417-418). While the counts of the indictment in question here are not facially duplicitous, an examination of the grand jury testimony that formed their bases reveals otherwise (see People v Corrado, 161 AD2d 658, 659 [1990]). In each instance, save counts 7, 8, 35 and 36, the victim testified that, during a specified time period, she was raped "at least once." By using such language, the counts in question clearly are duplicitous and must be dismissed with leave to the People, if so advised, to resubmit the charges to another grand jury (see People v Tolle, 144 AD2d 963, 964 [1988], lv denied 73 NY2d 927 [1989]).

Defendant next contends that Supreme Court erred in failing to dismiss the indictment on the grounds that the integrity of the grand jury proceeding was impaired by prosecutorial misconduct and the evidence was legally insufficient. While there can be no doubt that the prosecutor made numerous errors during the grand jury presentation, we do not believe that they rose to the level necessary to find that the proceeding was legally impaired or that there was a possibility that defendant was prejudiced thereby (see People v Huston, 88 NY2d 400, 409 [1996]). Finally, our review of the record reveals that there was legally sufficient evidence to support the counts charged in the indictment, except those previously dismissed by Supreme Court.

Of the various remaining arguments raised by defendant, only one necessitates extended comment. Defendant contends that the prosecutor's misconduct during the course of the trial was so pervasive as to deprive defendant of a fair trial. We agree and, for that reason, reverse and order a new trial.

Prior to trial, defense counsel made a motion in limine seeking to prevent evidence of prior consistent statements of the victim to bolster her in-court testimony (see People v McDaniel, 81 NY2d 10 [1993]), which motion was granted. Nevertheless, the prosecutor, on three different occasions, sought to elicit just such testimony over the objection of defense counsel, which objections were sustained.

During cross-examination of the victim's mother, a key...