People v. Richlin
| Decision Date | 31 July 1973 |
| Citation | 346 N.Y.S.2d 698,74 Misc.2d 906 |
| Parties | The PEOPLE of the State of New York v. Joseph RICHLIN, Defendant. |
| Court | New York County Court |
William N. Ellison, Dist. Atty., Schuyler County, Watkins Glen, for the People.
Frederick W. Warder, Jr., Geneva, for defendant.
Defendant, who has been indicted on two counts of operating a motor vehicle while in an intoxicated condition was a felony, moves to dismiss the second count of the indictment on the grounds that it is duplicitous in that it fails to conform to the requirements of CPL 200.30.
That section provides as follows:
Sec. 200.30 Indictment; duplicitous counts prohibited.
1. Each count of an indictment may charge one offense only.
2. For purpose 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.
The indictment charges in the separate counts that defendant operated a motor vehicle while in an intoxicated condition at the same time nad place. It can be interpreted that the first count relates to the offense as set forth in subdivision 3 of section 1192 of the Vehicle and Traffic Law and that the second count relates to subdivision 2 of the same statute.
At the outset the court observes that counsel has apparently misinterpreted the meaning of duplicitous counts in an indictment. By moving to dismiss only the second count, he has apparently equated the term 'duplicity' (as defined for criminal pleading purposes) with the term 'duplicated'. In other words he is saying that the second count is a 'duplicate' of the first and therefore defective under CPL 200.30.
Duplicitous counts of an indictment are understood by the court to mean one or more counts of an indictment which, individually, charge more than one offense.
Thus where a count of an indictment alleges the commission of an offense on more than one occasion, the count is bad for duplicity (People v. Trepel, 207 Misc. 98, 139 N.Y.S.2d 513; People v. Murray, 32 Misc.2d 757, 224 N.Y.S.2d 864). On the other hand, before the Criminal Procedure Law, an indictment could properly charge in one count the same offense alleged to have occurred in different ways. An allegation of murder in a single count indictment could allege both common law murder and felony murder (People v. Howard, 27 A.D.2d 796, 279 N.Y.S.2d 79).
Turning to the crime alleged in the instant indictment it is prefectly proper to charge a defendant with operating a motor vehicle while in an intoxicated condition in separate counts, one under subdivision 2 of section 1192 of the Vehicle and Traffic Law and the other under subdivision 3 (People v. McDonough, 39 A.D.2d 188, 333 N.Y.S.2d 128). They are neither mutually inclusive nor mutually exclusive (People v. Rudd, 41 A.D.2d 875, 343 N.Y.S.2d 17).
Nevertheless, CPL 200.30 does come into play with respect to this indictment when the language of the indictment is considered. The section is also to be read in context with CPL 200.50(7) which specifies what a count of an indictment shall contain.
In enacting CPL 200.30 the Legislature obviously sought to avoid the problem we have here by specifically providing in subdivision 2 that where offenses may be committed in different ways, counts of an indictment must specify or clearly indicate the particular subdivision or paragraph of the statutory provision. Otherwise a duplicitous count results as a matter of law.
The district attorney ignored this command in drafting the indictment in question. Neither count specifies the...
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People v. Branch
...of a statutory provision defining an offense, the count must specify the particular subdivision violated (cf. People v. Richlin, 74 Misc.2d 906, 346 N.Y.S.2d 698). Accordingly, section 200.30 makes apparent what type of indictment is to be avoided. Such an indictment is clearly not present ......
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People v. MacAfee
...of an indictment alleges commission of an offense on more than one occasion, the count is defective for duplicity (People v. Richlin, 74 Misc.2d 906, 907, 346 N.Y.S.2d 698; People v. Murray, 32 Misc.2d 757, 759, 224 N.Y.S.2d 864). Moreover, count one, as amplified by paragraph 4 of the Peop......
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People v. Matarese
...were performed in pursuance of that scheme (See CPL 200.30), and therefore conviction of one count must be reversed (People v. Richlin, 74 Misc.2d 906, 346 N.Y.S.2d 698). ...
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...maximum for one count--$250. We need not pass on whether Count X is defective or void for duplicity (see CPL 200.30; People v. Richlin, 74 Misc.2d 906, 346 N.Y.S.2d 698; People v. Murray, 32 Misc.2d 757, 224 N.Y.S.2d 864), since defendant is precluded at this juncture from relief in that re......