People v. Todd

• Decision Date: 03 June 1983
• Citation: 463 N.Y.S.2d 729,119 Misc.2d 488
• Parties: The PEOPLE of the State of New York, v. Joseph TODD, Defendant.
• Court: New York City Court

Page 729

463 N.Y.S.2d 729

119 Misc.2d 488

The PEOPLE of the State of New York, v. Joseph TODD, Defendant.

Criminal Court of the City of New York New York County.

June 3, 1983.

Lacy C. Johnson, New York City, for the People of the State of N.Y.

Lloyd Epstein, assisted by Timothy Lexvold, student intern of the New York Law School Criminal Defense Clinic, New York City, for defendant.

RICHARD S. LANE, Judge:

Defendant was convicted before me and a jury of Criminal Possession of Stolen Property in the Third Degree (Section # 165.40 Penal Law).

Defendant moves to set the verdict aside on the grounds that the count in the accusatory instrument charging him with the crime was duplicitous citing People v. Rosado, 64 A.D.2d 172, 409 N.Y.S.2d 216. The People oppose asserting that Section # 200.30 Criminal Procedure Law, which bars duplicitous counts in an indictment, is not applicable to an information, and further asserting that Section # 165.40 Penal Law permits charging possession of multiple articles in a single count.

The factual part of the information here consists of three paragraphs. The first paragraph states that Defendant knowingly possessed a Master credit card in the name of Grace Yao Ping Chao. Originally it read that one Michelle Mickel informed the Police Officer of Defendant's possession, but it was redacted at Defendant's request when he learned that Michelle Mickel would be unavailable as a witness. The second paragraph states that Defendant knowingly possessed an American Express credit card and other documents in the name of Grace Yao Ping Chao which were recovered in Defendant's immediate proximity. The third paragraph states that Grace Yao Ping Chao owned the cards and other documents and Defendant had no permission from her to possess them.

At trial the People offered no testimony to substantiate the charge with respect to the Master card, and, at the close of the evidence, the Court dismissed. The testimony with respect to the American Express credit card and other documents was solely circumstantial to the effect that they were found in the police car next to the driver's door after Defendant had been placed against that door with the window open for the purpose of frisking.

Using the test adopted in People v. Rosado, supra, Defendant contends that single count in the information is duplicitous because Defendant could have been convicted either of possession of the Master card or of possession of the American Express card and other documents should the District Attorney have elected to waive the other.

Defendant is right on the law but wrong on the facts.

Even though the bar against duplicitous counts in Section # 200.30 Criminal Procedure Law speaks only to indictments, the Court is satisfied that the law is the same for informations. The language of Section # 100.15 Criminal Procedure Law prescribing the form and content of an information would appear to incorporate Article # 200. Of greater significance, perhaps, the bar is only a partial codification of the basic Common Law principle that an accusatory instrument must apprise the person charged with the exact nature of case against him; see People v. Klipfel, ...