Last week, I blogged about a recent Court of Appeals decision on multiplicity: charging multiple offenses for a single crime. The flip side of multiplicity is duplicity: charging multiple crimes in a single count. The latter concern implicates notice and jury unanimity. If a defendant is charged with multiple crimes in one count, it is difficult for him to know how to defense himself and whether a jury's guilty verdict is unanimous as to the method or act of the crime.
In People v. Wright (3d Dept. 2/24/2011), the Appellate Division held that a count of Aggravated Assault was not duplicitous. The case involved an 11-year-old who suffered a left orbital fracture in her face. The indictment charged that the Defendant caused this injury "by means of punching and/or striking and/or pushing her." The Defendant argued that this language caused a duplicity problem, but the Third Department disagreed:
Defendant complains that [the child's mother]'s trial testimony — indicating that defendant punched, kicked, slapped and spanked his daughter more than 80 times in the alleged time period — made it impossible to determine if the verdict was unanimous or if the jury found him guilty of one crime based upon different instances of abuse … . This fear is unfounded because the count specifies that it relates to the assault which resulted in the eye injury. Thus, the count contained only one offense and was not duplicitous, either as charged or based upon the evidence presented at trial.
Thus, the court suggests that where multiple, alternative acts are alleged to cause only a single injury, there is not a duplicity problem with the indictment. The court properly distinguished the Court of Appeals' decision in People v. Bauman (Ct. App. 3/26/2009), in which the court found a depraved indifference assault charge to be duplicitious when it alleged:
striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention.
In that case, there were multiple acts and multiple results; thus, the charge was duplicitious. (LC)