People v. Pernell A. Flanders


AD4 order dated November 8, 2013, affirming judgment of conviction. Decision below: 111 AD3d 1263, 974 NYS2d 692. Sconiers (AD dissenter), J., granted leave January 28, 2014.
ISSUES PRESENTED: (1) Where there were two distinct shooting incidents with different weapons, whether the court rendered the charges as to each incident duplicitous by charging that the indictment alleged that the defendant committed these offenses with “a .380 semi-automatic pistol and a .22 rifle.” (2) Whether there was a sufficient chain of custody to admit shell casings. (3) Ineffective assistance of counsel.

Background Facts:  An indictment charging defendant with, inter alia, assault in the first degree and reckless endangerment in the first degree, alleged that he committed those acts by using a .380 semi-automatic pistol and a .22 rifle.  The court's charge to the jury tracked that conjunctive langauge.  The evidence at trial showed that the defendant pistol-whipped the victim and then shot him, first with the pistol and then with the rifle.

Issue:  Did the jury instruction and evidence at trial render the indictment duplicitous on the ground that the counts charged more than one offense?

Held: No.  Despite mentioning both weapons, the counts of assault and reckless endangerment in the indictment charged only one offense because the statutory definititions of the crimes contemplated only "a single act."  In the case of assault in the first degree, the prosecution needed to prove that the defendant acted "by means of a deadly weapon or a dangerous instrument," so was not statuorily required to prove that the defendant used two weapons.  Nor did the reckless endangerment count require the prosecution to prove that defendant used both weapons.  That the offenses "may be committed by doing any one of several things" did not mean that the People were required to prove that defendant used both weapons. 

CAL Observes: Although the opinion rules out a duplicitousness challenge where the indictment, departing from the statute, charges in the conjunctive,  appellate counsel should consider the possibility of a sufficiency challenge (assuming preservation) where the charge imposes a heavier burden on the People, and the People lodge no objection.  See People v. Dekle, 56 N.Y.2d 835 (1982)(legal sufficiency is assessed by reference to the elements of the crime "as charged to the jury without exception").