People v. Bauman

OPINION OF THE COURT Scudder, P.J. The People appeal from an order dismissing an indictment charging defendants with two counts of assault in the first degree, for intentional and depraved indifference assault (Penal Law § 120.10 [1], [3]). Supreme Court also granted the People leave to resubmit appropriate charges arising out of the conduct underlying the original counts. At the grand jury proceeding, the People presented evidence that defendants resided with the victim, who suffers from multiple sclerosis, and that over an eight-month period they allegedly struck the victim with, inter alia, their fists, a baseball bat and a hammer. That alleged conduct by defendants caused the victim to sustain various injuries, including a detached retina, fractured fingers, ribs and facial bones, and internal bleeding. The People also presented evidence that defendants allegedly burned the victim with a frying pan, scalded him with hot water, denied him food, locked him in a basement room for several hours at a time, and required him to sleep in the unheated basement on a plastic lawn chair. Emergency personnel who were called to the residence found the victim in the basement, near death. Contrary to the People’s contention, the court properly granted those parts of defendants’ omnibus motions seeking dismissal of both counts of the indictment as duplicitous. Pursuant to CPL 200.30 (1), “[e]ach count of an indictment may charge one offense only.” The Court of Appeals has written that “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts . . ., 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, 68 NY2d 410, 417-418 [1986], rearg denied 69 NY2d 823 [1987]). “Whether multiple acts may be charged as a [318] continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act” (People v Shack, 86 NY2d 529, 540-541 [1995]). Count one of the indictment charged defendants with intentional assault in the first degree, which is defined in relevant part as, “[w]ith intent to cause serious physical injury to another person, [the accused] causes such injury to such person ... by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.10 [1]). Count one alleges that “on or about and between August 1, 2004 and April 7, 2005 . . . with intent to cause serious physical injury . . . [defendants] caused such injury ... by means of a dangerous instrument, to wit: a baseball bat and/or a frying pan and/or a vacuum cleaner and/or a hammer.” Here, the alleged use by defendants of multiple dangerous instruments caused the victim to sustain multiple serious physical injuries, including second degree burns, fractured facial bones, fingers, and ribs, as well as internal bleeding. We thus conclude that count one charges more than one offense. It is of particular “significan[ce] that the charged conduct was not the product of one ‘impulse’, permitting only one prosecution no matter how long the action may continue, but[, rather, the charged conduct was the product of] successive and distinguishable impulses, each able to support a separate charge” (People v Okafore, 72 NY2d 81, 87 [1988]; cf. People v Hines, 39 AD3d 968, 969-970 [2007], lv denied 9 NY3d 876 [2007]). Indeed, we note that a jury might find both that defendants committed the offense of intentional assault by burning the victim’s arm with a hot frying pan and that they committed the offense of intentional assault by breaking the victim’s fingers with a hammer. Thus, in the event of a conviction, “there is such a multiplicity of acts encompassed in [count one] as to make it virtually impossible to determine the particular act [or acts of intentional assault] as to which the jury reached a unanimous verdict” (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). “The [potential] prejudice to the defendants] is manifest” (Keindl, 68 NY2d at 421). We further conclude that count two of the indictment, charging defendants with depraved indifference assault (Penal Law § 120.10 [3]), also is duplicitous. That offense is defined as, “[u]nder circumstances evincing a depraved indifference to human life, [the accused] recklessly engages in conduct which ere [319] ates a grave risk of death to another person, and thereby causes serious physical injury to another person” (id.). Count two alleges that defendants, “on or about and between August 1, 2004 and April 7, 2005, . . . under circumstances evincing a depraved indifference to human life, recklessly engaged in a course of conduct which created a grave risk of death to another person ... by striking said person 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 and thereby caused serious physical injury to [said person].” Although the alleged conduct in count two is not duplicitous with respect to the element of depraved indifference to human life, we nevertheless conclude that, as with count one, in the event of a conviction there “is such a multiplicity of acts ... as to make it virtually impossible to determine the particular” conduct that allegedly created a grave risk of death or which serious injury was thereby caused, and thus whether the jury reached a unanimous verdict (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). A jury might find that the alleged aggregate conduct over the eight-month period created a grave risk of death, resulting in the serious physical injuries of lowered body temperature and unconsciousness of the victim, but it might also find that the alleged course of conduct of repeatedly beating the victim caused a grave risk of death resulting in the serious physical injuries of, inter alia, fractures and internal bleeding. Indeed, a jury might find on the alleged facts that defendants’ ongoing conduct created a grave risk of death on several occasions over the eight-month period, each of which resulted in serious physical injury (see generally Penal Law § 120.10 [3]). By way of contrast, in the event that the same ongoing conduct alleged in count two had resulted in the death of the victim, the multiple acts would have caused a single result, i.e., death (see Penal Law § 125.25 [2]; see generally People v Dickerson, 42 AD3d 228, 234-235 [2007], lv denied 9 NY3d 960 [2007]). With respect to the offense of assault in the [320] first degree, Penal Law § 120.10 (3) contemplates that the result of reckless conduct creating a grave risk of death is serious physical injury and, here, there are multiple serious physical injuries that were caused by the alleged acts over the eight-month period. Thus, because count two alleged “the commission of a particular offense[, i.e., depraved indifference assault,] occurring repeatedly during a designated period of time” (Keindl, 68 NY2d at 418), that count is duplicitous (see generally id. at 417-418). Accordingly, we conclude that the order should be affirmed.