People v. Godfrey (Arthur)

People v Godfrey (2022 NY Slip Op 50432(U)) [*1] People v Godfrey (Arthur) 2022 NY Slip Op 50432(U) [75 Misc 3d 130(A)] Decided on May 24, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on May 24, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, BARRY E. WARHIT, JJ 2019-1842 N CR The People of the State of New York, Respondent, against Arthur Godfrey, Appellant. Nassau County Legal Aid Society (Tammy Feman and Argun M. Ulgen of counsel), for appellant. Nassau County District Attorney (Daniel Bresnahan and Kelly Gans of counsel), for respondent. Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. Lerose, J.), rendered December 5, 2019. The judgment convicted defendant, upon a jury verdict, of aggravated harassment in the second degree, and imposed sentence. ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, and the superseding information is dismissed. In May 2019, the People filed a superseding misdemeanor information charging defendant with one count of aggravated harassment in the second degree (Penal Law § 240.30 [1]), alleging that defendant sent a threatening text message to complainant on August 26, 2018 and a second threatening text message on September 19, 2018. Following a jury trial, defendant was convicted of aggravated harassment in the second degree. Defendant contends that the superseding information should be dismissed because it is duplicitous. The People concede that the count is duplicitous, but contend that defendant did not preserve his claims. While we agree that defendant's contentions are unpreserved, we review the issue in the exercise of our interest of justice jurisdiction. An accusatory instrument is duplicitous when a single count charges more than one offense (see CPL 200.30 [1]; People v Syville, 55 Misc 3d 137[A], 2017 NY Slip Op 50507[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). "[A]cts which separately and individually make out distinct crimes must be charged in separate and distinct counts" (People v Keindl, 68 NY2d 410, 417 [1986]). "A basic reason underlying the proscription of duplicitous counts is that it tends to ensure the reliability of a unanimous verdict" (People v Davila, 198 AD2d 371, 373 [1993]). "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 [*2]would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses" (Keindl, 68 NY2d at 418). Here, the superseding information, charging one count of aggravated harassment in the second degree, but alleging that two offenses occurred on two distinct dates, separated by nearly a month, is, on its face, duplicitous (see People v Davis, 72 NY2d 32, 38 [1998]; People v Jean, 117 AD3d 875, 876 [2014]). In light of the foregoing, defendant's remaining contentions need not be addressed. Accordingly, the judgment of conviction is reversed and the superseding information is dismissed. GARGUILO, P.J., EMERSON and WARHIT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: May 24, 2022