Friday, March 27, 2009

Assault Charges Listing Multiple Acts Connected By And/Or Language Held Defective

In People v Bauman (2009 NY Slip Op 02265, 3/26/09) the Court of Appeals held that an indictment charging depraved indifference assault under Penal Law § 120.10 (3) which alleged eleven acts over an eight month period under one count violated Criminal Procedure Law (CPL) § 200.30 (1) because it was duplicitous.

The indictment charged two defendants with one count of intentional assault [*2]under Penal Law § 120.10 (1) (the first count) for allegedly causing injury to victim by means of "a baseball bat[,] and/or a frying pan[,] and/or a vacuum cleaner[,] and/or a hammer[,]" and one count of depraved indifference assault under Penal Law § 120.10 (3) (the second count) for allegedly "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" during a period from August 1, 2004 to April 7, 2005.

The Court held that the depraved indifference assault charge
was pleaded in a manner which made it duplicitous. This count, alleging eleven incidents over an eight month period, encompassed "such a multiplicity of acts ... as to make it virtually impossible to determine the particular act of [assault] ... as to which [a] jury [could] reach a unanimous verdict" (id. at 421). The first count is similarly defective. Were these counts to stand as pleaded, "individual jurors might vote to convict ... defendant[s] of [each] count on the basis of different offenses" and "defendant[s] would thus stand convicted under [each] count even though the jury may never have reached a unanimous verdict as to any of the offenses" (id. at 418).
The Court explained that depraved indifference assault can be a continuing crime and that the element of depravity can be alleged by establishing that defendant engaged in a course of conduct over a period of time. However, the People's use of the conjunction "and/or" between each act means that "a jury could just as easily find that defendants committed only one of the alleged acts; not only would a single act not be sufficient to establish a course of conduct but we still would not know on which particular act defendant was convicted."

The decision does not state how such conduct should be described in an indictment,

No comments:

Post a Comment