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,