One Cannot Be Incarcerated For Violating The Terms Of Post Release Supervision Not Imposed By A Judge

After the Court of Appeals held that post release supervision sentences added by the Department of Corrections or by court personnel, other than judges are not validly imposed, but that resentencing was available in such cases for a court to lawfully impose such a sentence (People v Sparber)the questioned remained whether persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. Today, in People of State of New York ex rel. Lucas Foote v Piscotti the

Fourth Department answered this question with a clear "yes."
Petitioner commenced this habeas corpus proceeding contending that the Department of Correctional Services (DOCS) lacked the authority to include a period of postrelease supervision in petitioner's sentence calculation because the sentencing court had not imposed a period of postrelease supervision. County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner's sentence invalid. As the Court of Appeals has written, "[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so" (Matter of Garner v New York State Dept. of Correctional Servs., ___ NY3d ___, ___ [Apr. 29, 2008]).

Thus, the Court ordered that Sheriff discharge petitioner from custody forthwith.

Recent Third Department Reversals, Modifications and Dissents

by Tim Davis, Esq.


People v Hackett, 47 AD3d 1122 (January 24, 2008)

Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant concerning his movement within the vehicle, defendant explained he was reaching for his cell phone, which he then showed to the Trooper.

The Trooper ordered defendant out, and decided to detain him for a traffic violation. The Trooper handcuffed defendant for safety reasons, and placed him in his patrol car while he ran a warrant check. He made no effort to determine whether defendant possessed a valid driver's license. Once a second Trooper arrived, the first went to defendant's vehicle, opened the passenger door and looked at the floor board. Seeing nothing, he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search revealed a quantity of cocaine as well.

Indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree and three counts of Criminal Possession of a Weapon in the Third Degree, defendant moved to suppress the handgun and cocaine. The lower court relied on the minutes of the preliminary hearing - at which just the Trooper testified - and denied the request.

The Third Department, relying on People v Torres, 74 NY2d 224 [1989], held that the Trooper had no probable cause to return and search under the front passenger seat of defendant’s vehicle, when the defendant was secured and there was no imminent threat the Trooper’s safety. Although the defendant was driving erratically and disappeared from sight when he leaned toward the passenger seat, he explained this movement and produced his cell phone. Further, although the Trooper thought the defendant seemed nervous and repeatedly looked at his vehicle, this conduct was insufficient to justify a search. The search was unlawful because 1) there was no basis for the Trooper to believe a weapon was within the vehicle, and 2) no actual or specific danger threatened the safety of the officers.



People v Hasenflue, 48 AD3d 888 (February 21, 2008)

In March 2003, the defendant represented himself at trial, and was convicted of Attempted Aggravated Assault on a Police Officer, Reckless Endangerment in the First Degree and Aggravated Harassment in the Second Degree. He appealed, and argued that the court erred in proceeding to trial without completing a 730 exam, which was ordered by another judge at arraignment. Before trial, two psychologists attempted to examine the defendant, but made no determination as he refused to cooperate. In People v Hasenflue, 24 AD3d 1017, the Third Department held that the defendant was “deprived of his right to a full and fair determination of his mental capacity to stand trial,” and remitted the case for a reconstruction hearing.

Both counsel and the two psychologists who tried to interview defendant testified at the reconstruction hearing. The psychologists reviewed all the defendant’s psychiatric records and the court proceedings, leading them to opine that he was competent. Based upon this testimony, the court determined that the People established defendant’s competency to stand trial by a fair preponderance of the evidence.

The Third Department reversed, concluding it was not possible to determine defendant's competency given the lack of any contemporaneous psychiatric examinations/evaluations at the time of trial. While relevant to the ultimate issue, neither his observed demeanor at trial nor his self representation was sufficient to establish his competence.


People v Revette, 48 AD3d 886 (February 21, 2008)

Defendant was charged with setting two fires to the home of her ex-boyfriend, with whom she was involved in a custody dispute. She was convicted after trial of Arson in the Third Degree (two counts) and Burglary in the Third Degree (two counts).

Before trial, defendant sought dismissal of the indictment pursuant to CPL § 210.35(5), arguing that a grand juror was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury.

As a close relationship between a grand juror and a witness raises the risk of prejudice, the Third Department held that the prosecutor should have enquired whether the juror could fairly evaluate the evidence. Although the prosecutor asked the juror if she could remain impartial, he received an ambiguous response which he never asked her to clarify. This was significant as the number of jurors voting to indict was not recorded, and the testimony of the juror’s husband was important to the case.

People v Ramos, 48 AD3d 984 (February 28, 2008)

Defendant was convicted after trial of Burglary in the Second Degree and Criminal Mischief in the Third Degree. The court sentenced him to twelve years determinate on the burglary and four years determinate on the criminal mischief.

On appeal, defendant argued he should have been sentenced to an indeterminate term on the criminal mischief as it is a non-violent felony. The People conceded this was error. The Third Department vacated the sentence and remitted the case to the trial court.


People v Westerling, 48 AD3d 965 (February 28, 2008)

Defendant was charged with abducting and then raping his estranged girlfriend. He was convicted after trial of Rape in the First Degree, Criminal Sexual Act in the First Degree (two counts), Kidnaping in the Second Degree, Coercion in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Contempt in the First Degree (two counts) and Resisting Arrest.

The main issue on appeal was the trial court’s Molineux ruling permitting the People to introduce evidence of numerous domestic violence incidents between defendant and the complainant. In addition to a number of specific instances of violence, the trial court permitted the complainant to testify that defendant hit, bit or threw her approximately 100 times during their three-year relationship. The Third Department ruled it was improper for the court to allow her to testify to unparticularized acts occurring over such a lengthy period.

The potential prejudice of this testimony was exacerbated by the court’s failure to provide the jury with cautionary instructions regarding the limited purpose of this evidence. The court's final instructions were insufficient to cure this deficiency after the jury heard such evidence without any guidance as to its purpose.


People v Haddock, 48 AD3d 969 (February 28, 2008)

Defendant was convicted after trial of failing to comply with SORA - failing to register on an annual basis, and failing to register within ten days of a change of address.
On appeal, defendant raised the trial court’s refusal to charge the jury that the People were required to prove he knowingly failed to comply with SORA's registration requirements.

Although Correction Law § 168-t contains no requirement of a culpable mental state, the Third Department held that the legislature did not intend to create a strict liability crime. The Court found support for this position in the Pattern Criminal Jury Instructions, which set forth knowledge as an element. Although the People's proof included ample evidence of defendant's knowledge, the Third Department held that the failure to provide such a charge could not be regarded as harmless error.


People v Karika, 48 AD3d 980 (February 28, 2008)

Defendant was charged with Criminal Sexual Act in the First Degree and Sexual Abuse in the First Degree.

During his preliminary instructions, the trial judge correctly advised the jury not to consider the sentence the defendant might receive if convicted, as that was a matter solely for the court to determine. However, immediately before making this statement, the court inexplicably related a recent out-of-court conversation in which someone asked what the court might do when a person commits the charged crime without really meaning to, or knowing the proscribed conduct is unlawful. The court replied: “[I]f a jury decides they are guilty, I give them an unconditional discharge or conditional discharge. It reflects itself in the sentence.”

Defense counsel did not immediately object to this statement, but during the charge conference asked for a curative instruction as the jury might believe the defendant in this case - if found guilty - could receive a conditional or unconditional discharge.
The Third Department first ruled that counsel preserved this challenge even though he waited until the charge conference to request a curative instruction. The issue was raised in time for the court to act.

The Court then reversed, finding that the trial judge basically told the jury the defendant could receive a conditional or unconditional discharge if he were convicted of Criminal Sexual Act in the First Degree. This may have led the jury “to a scrutiny of the evidence less close than that to which defendant was entitled”

Post Release Supervision: What is the Remedy When Not Imposed By a Judge?

In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380.40 and more than a year has past.

The Second Circuit, in considering this issue, held in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that DOCS's administrative addition of a PRS term not pronounced by Supreme Court violated federal "due process guarantees" (id. at 76 n 1) and should therefore be excised from the petitioner's sentence on a motion for a writ of habeas corpus. The New York Court of Appeals agreed with the Second Circuit that only a judge, and not prison or court clerks can impose PRS. However, the Court disagreed as to the remedy and as to the effect of the one year limit on th eabilty of prosecutors to seek resentencing set forth in CPL 440.40 [1]. The Court explained

It is indisputable that the relief that defendants request — expungement of their PRS terms — would permit them to serve a sentence not in compliance with the statute. But defendants say that this result is required because the People failed to seek proper resentencing within one year from the date of their convictions and did not properly preserve their objection to defendant's expungement remedy before the trial court (see CPL 440.40 [1])[FN6]. Defendants are incorrect. The sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement (see People v Sturgis, 69 NY2d 816, 817-818 [1987] ["[A] sentence [that] violates the mandate of CPL 380.20 . . . must be vacated and the case remitted to the trial court for resentencing"]; see also People v Stroman, 36 NY2d 939, 940-941 [1975] [violation of CPL 380.40 requires reversal and remitter for resentencing]).[FN7]

In all five of these cases, there exists no procedural bar to allowing the sentencing [*9]court to correct its PRS error [FN8]. It is obvious that at the time of each defendant's sentencing, Supreme Court intended to impose a sentence in compliance with the provisions of Penal Law §§ 70.00 (6) and 70.45 (1) — one that consisted of a determinate sentence and a period of PRS. No record evidence rebuts that presumption. Thus, the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy (see People v DeValle, 94 NY2d 870, 871 [2000]; People v Wright, 56 NY2d 613, 614 [1982]; People v Minaya, 54 NY2d 360, 364-365 [1981]).

Two footnotes to ponder. First note 6:

Defendants could, of course, move "[a]t any time" for resentencing (CPL 440.20 [1]). Their failure to exercise that right does not entitle them to the remedy requested here. Further, a court's authority to correct its own errors at resentencing is not subject to the one-year time limit imposed on the People by CPL 440.40 (1) (see People v Wright, 56 NY2d 613, 615 [1982] ["(I)t is clear that CPL 440.40 is intended only as a limitation on the People with reference to an 'invalid [sentence] as a matter of law' not imposed by mistake"]).

This note raises at least three questions. First, how could a defense attorney ethically move to have his client's sentence increased? Second, why would she do so? Third, in the divide between invalid sentences and mistaken sentence, how can the failure to be impose a mandatory PRS not be classified as an invalid sentence subject to the one year limitation?

Then comes note 7:

Defendants assert that CPL 450.90 precludes us from remitting for resentencing because the People, having prevailed below, are not entitled to that affirmative relief from this Court. Defendants are mistaken. Rather than affirmative relief to the People, this Court is merely giving a more limited form of relief to defendants than they seek.

So when the defendant argues that the PRS sentence was unlawfully imposed by prison or court officials other than a judges and that he is not and cannot be now subject to PRS, ithe imposition of PRS is just a limited form of the relief that defendant wanted. Which defendant ever asked for or wanted PRS?

Weapons and Assault Sentences to Run Concurrently

In People v Torres, 2008 NY Slip Op 03888 [4th Dept 4/25/2008], the Court agreed

with defendant...that County Court erred in directing that the sentence imposed on the count of criminal possession of a weapon shall run consecutively to the sentence imposed on each count of attempted assault and attempted aggravated assault. There is no evidence that defendant "possessed the pistol with a purpose unrelated to his intent to shoot [the officers]" (People v Hamilton, 4 NY3d 654, 658), and thus the sentence imposed on the count of criminal possession of a weapon in the second degree must run concurrently with the sentences imposed on those counts (see People v Manor, 38 AD3d 1257, 1259, lv denied 9 NY3d 847; People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865).

Robbery Conviction Reversed As Against Weight of Evidence

In <People v Newkirk, 2008 NY Slip Op 03879 [4th Dept 4/25/2008], the Court agreed

with defendant that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Although the weight of the evidence establishes that defendant and two accomplices went to the wholesale club with the intent to commit a larceny, it does not establish that defendant forcibly stole property (see generally id.).

The evidence presented at trial establishes that, upon entering the wholesale club, defendant and one of his accomplices saw a loss prevention employee, who was seated in a wheelchair at the entrance/exit. After entering the wholesale club, defendant and that accomplice each picked up two boxed computer monitors, intending to steal them. As they approached the exit, the accomplice ran out first, whereupon the employee attempted to grab one of the boxes, causing the wheelchair to spin. The employee then left his wheelchair and followed the accomplice on foot. Defendant remained in the wholesale club and, immediately after the contact between the accomplice and the employee, defendant discontinued his participation in the larceny by dropping the two boxed computer monitors that he was carrying. The accomplice, followed by the employee, continued out of the wholesale club to a vehicle where the second accomplice was waiting. When the two accomplices attempted to drive away in the vehicle, the accomplice who had been with defendant in the wholesale club punched the employee in the face, causing the employee physical injury. Defendant walked out of the store as the two accomplices drove away in the vehicle, and he offered aid to the employee before walking away. [*2]

The evidence weighs heavily in favor of a finding that defendant neither "forcibly [stole] property" (Penal Law § 160.10), nor "solicited, requested, commanded, importuned, or intentionally aided [the accomplice in the wholesale club] in the commission of the crime" (People v Carr-El, 287 AD2d 731, 733, affd 99 NY2d 546; see § 20.00; cf. People v Allah, 71 NY2d 830, 832; People v Harris, 19 AD3d 871, 873-874, lv denied 5 NY3d 806; People v Mejia, 297 AD2d 755, lv denied 99 NY2d 561). We thus conclude that the jury failed to give the evidence the weight it should be accorded on the issue whether defendant shared "the mental culpability necessary to commit the crime charged," i.e., the intent to commit a forcible theft (Carr-El, 287 AD2d at 733; see generally Bleakley, 69 NY2d at 495).

Defendant Needs to Object to Conflict of Interest

In People v Peterson, 2008 NY Slip Op 03822 [4th Dept 4/25/2008], the Court held that where a defendant contended that County Court failed to engage in a sufficient Gomberg inquiry when the court learned that defendant and a codefendant were represented by the same attorney (see People v Gomberg, 38 NY2d 307, 313-314) the "Defendant failed to preserve that contention for our review (see People v Woods, 6 AD3d 1126, 1127, lv denied 3 NY3d 683...." What duty does the Court have to point out the potential problem to the defendant?

Evidence of ABSENCE of Sexual Activity Barred by CPL 60.42

The Court in People v Bones, 2008 NY Slip Op 03788 [4th Dept 4/25/2008] held that

The court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim's past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v Williams, 81 NY2d 303, 311; People v Nemie, 87 Cal App 3d 926, 929).

Can Contrary Verdicts For Co-Defendants Be Repugnant?

Although the answer to the question posed by the caption is "yes," the Court in People v McLaurin, [4th Dept 4/25/2008]rejected a claim that that a verdict convicting a father of resisting arrest was repugnant to the jury's acquittal of the son on that charge, where they had the same defense - that the son was not present. The Court explained that

[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039). That rule also applies when one codefendant is convicted of a crime while another is acquitted of the same crime (see generally People v Green, 71 NY2d 1006, 1008; People v Hampton, 61 NY2d 963, 964). With respect to the charge of resisting arrest against defendant's son, the jury's finding that the People failed to prove beyond a reasonable doubt that defendant's son "prevented or attempted to prevent a police officer from performing an authorized arrest of himself" did not negate any element of either the resisting arrest charge or obstructing governmental administration charge against defendant. Defendant further contends that the verdicts are repugnant because both he and his son relied upon the same defense at trial, i.e., that the son was never present, and the jury must have found that the son was not present in order to acquit him. We reject that contention inasmuch as it involves "an attempt to divine the jury's collective mental process of weighing the evidence," which is prohibited (Tucker, 55 NY2d at 4).

IAC Claims Need to be Preserved

The Court in People v Hall, 2008 NY Slip Op 03738 [4th Dept 4/25/2008], in rejecting a claim of ineffective assistance of counsel, held that

To the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we note that defendant failed to preserve that contention for our review (see People v Tantao, 41 AD3d 1274; People v Fulford, 296 AD2d 661, 662).

Attack a Plea at Your Peril

In another reminder to counsel of the need to to be cautious in attacking a guilty plea, the Court, in People v Hinckley, 2008 NY Slip Op 03737 [4th Dept 4/25/08], in vacating one of two counts of a plea to CSCS in the third degree on finding that the defendant's "plea with respect to that count falls within the narrow exception to the preservation requirement (see Lopez, 71 NY2d at 666)" held that

In as much as defendant's plea was entered upon a negotiated agreement, we note that, in the event that defendant does not enter a plea of guilty to criminal possession of a controlled substance in the third degree upon remittal, the court "should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925; cf. People v Hall, ___ AD3d ___ [Apr. 25, 2008]).

Attenuation: White, Paulman and Chapple

In People v Parker, 2008 NY Slip Op 03906 [4th Dept 4/25/2008] the Court found that despite a a period of custodial interrogation without Miranda warnings, during which the defendant repeatedly made admissions, the post-Miranda statement was attenuated

The record establishes that, shortly after defendant was taken into police custody, he was questioned by a police officer and made admissions in response to those questions. Before he was transported to the police station, he reiterated those admissions to another officer. No Miranda warnings preceded those statements and, in the ensuing hour, defendant was transported to the police station. Miranda warnings were then administered, after which defendant gave the third statement that he seeks to suppress. Upon a review of the factors set forth in People v Paulman (5 NY3d 122, 130-131), including the time between the Miranda violation and the third statement, the change in location, the fact that "defendant exhibited a willingness to provide an explanation of his conduct and [the fact that], once at the police [station], he never expressed any reluctance to discuss the allegations" (id. at 131; see People v White, ___ NY3d ___ [Mar. 20, 2008]), we conclude that there was "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Chapple, 38 NY2d 112, 115).

Court Cites Decision in Douglas Warney's Appeal In Affirming Conviction Despite Challenges to Confession and Claims of Misconduct

In rejecting the Defendant's contention that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses, the Court, in People v Alexander, 2008 NY Slip Op 04163 [4th Dept 5/2/2008] held that

Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court properly denied defendant's request for a mistrial based on two other allegedly improper questions. The court sustained defendant's objections to those questions and gave curative instructions with respect to them, and "the jury is presumed to have followed" those curative instructions (People v Duvall, 260 AD2d 183, 184, lv denied 93 NY2d 924; see also People v Davis, 58 NY2d 1102, 1103-1104). The remaining allegedly improper questions concern the prosecutor's cross-examination of defendant, and "[i]t does not appear on the record before us that the conduct of the prosecutor during [that] cross-examination . . . was intended merely to harass, annoy or humiliate defendant . . . Rather, it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]" (People v Brent-Pridgen, 48 AD3d 1054, 1055 [internal quotation marks omitted]). Defendant failed to preserve for our review his further contention that he was [*3]deprived of a fair trial by prosecutorial misconduct during summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any event, "that . . . contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence" (People v Green, 48 AD3d 1245, 1245-1246; see People v Williams, 43 AD3d 1336; see generally People v Halm, 81 NY2d 819, 821).

In the same decision the Court rejected an attack on the voluntariness of the confession by citing People v Warney, 299 AD2d 956, 957, 2002 N.Y. Slip Op. 08487,

We reject the contention of defendant that the verdict is against the weight of the evidence (see generally id.). "Issues with respect to the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' " (People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633; see People v Sanchez, 267 AD2d 960, lv denied 94 NY2d 906).

Why does that case seem like an odd one to cite in rejecting a challenge to a confession? Perhaps because Douglas Warney's confession was the false product of police misconduct and, after his conviction was affirmed and after he spent 10 years in prison, DNA testing, resisted by the Monroe County District Attorney proved his innocence and the falsity of his confession. Also see this New York Times article.

In Mr. Alexander's case, the fact that he had been interrogated for 9 hours prior to giving a statement was not dispositive, since

the record establishes that there were several breaks in the interrogation during which defendant was left alone, and there is no indication that he sought to end the interrogation, or that he requested food or water, or to use the bathroom (see People v Whitten, 183 AD2d 865, lv denied 81 NY2d 849). The record further establishes that defendant was advised of his Miranda rights a second time and signed a written waiver immediately before signing the statement.

Claim of Right Defense Should Have Been Charged

In People v Ace,2008 NY Slip Op 04162 [4th Dept 5/2/08], the Court reversed a larceny conviction in the interest of justice, holding that County Court erred in failing to charge the jury that his claim of right was a defense to the count of grand larceny, where

Defendant testified at trial that he was instructed by one of the co-owners of the company that employed him to take the allegedly stolen rails to the scrap yard, and that testimony was corroborated in part by one of defendant's coworkers. Viewing the evidence in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800; People v Cunningham, 12 AD3d 1131, 1132, lv denied 4 NY3d 829, 5 NY3d 761), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right (see generally People v Moscato, 251 AD2d 352, 352-353; People v Ricchiuti, 93 AD2d 842, 844).

Considering that the instruction was not requested by counsel, that is quite a win for Mary Davision.

"I Did This Before" Admissible as Res Gestae

In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant's

contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught. I might as well face my consequences." The statement was properly admitted as part of the res gestae of the rape counts (see People v Lewis, 25 AD3d 824, 826, lv denied 7 NY3d 791, 796; PPeople v Ayala, 273 AD2d 40, lv denied 95 NY2d 863; People v Chavys, 263 AD2d 964, 965, lv denied 94 NY2d 821), and it constituted an admission with respect to those counts (see generally People v Geddes, ___ AD3d ___ [Mar. 14, 2008]; People v Figgins, 48 AD3d 1042). We note that the court properly instructed the jury to consider the testimony only with respect to the rape counts, and not the murder counts, thus limiting " the possibility of prejudice' " (People v Dozier, 32 AD3d 1346, 1347, lv dismissed 8 NY3d 880; see generally People v Dickson, 21 AD3d 646, 647).

When Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?

Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault.

The allegations are indisputably ugly. 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.

The two co-defendants were each charged with both intentional and depraved indifference assault. Both counts listed numerous acts. The intentional assault count alleged that "[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." The depraved assault count alleged that

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].

The trial court dismissed both counts of the indictment as duplicitous and the People appealed. In a signed opinion by Presiding Justice Scudder, the three justice majority affirmed.

With respect to the intentional assault the Court explained

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; cf. People v Hines, 39 AD3d 968, 969-970, lv denied 9 NY3d 876). 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 defendant[s] is manifest" (Keindl, 68 NY2d at 421).

The dissenting judges agreed with this portion of the decision. It was the Court's holding regarding the depraved assault count that divided the Court. The majority held that

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 [*3]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 § 125.25 [2]; see generally People v Dickerson, 42 AD3d 228, 234-235, lv denied 9 NY3d 960). With respect to the offense of assault in the 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).

By contrast, the two dissenting justices in an opinion by Justice Fahey, reasoned that

depraved indifference assault is akin to the crimes of endangering the welfare of a child or depraved indifference murder, because it is "a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (People v Keindl, 68 NY2d 410, 421; see People v Brammer, 189 AD2d 885, lv denied 81 NY2d 967).Based on our conclusion that depraved indifference assault is a continuing crime, we are then faced with the issue of duplicity.....The test for duplicity that has evolved is whether, under a particular count alleged to be duplicitous, a defendant can "be convicted of [any] of the crimes charged therein, should the district attorney elect to waive the other[s]" (People v Klipfel, 160 NY 371, 374; see Butler, 161 Misc 2d at 984).... Gravamen is the essence of a claim (see Black's Law Dictionary 721 [8th ed 2004]). Here, the gravamen of the act of depraved indifference assault is that the defendants acted with depraved indifference. The character of the act is defined by the ongoing abuse of the victim, which resulted in both serious physical injury and a grave risk of death. In view of our determination that depraved indifference assault is a continuing crime, we are compelled to conclude that there was only one occasion on which defendants' conduct resulted in serious physical injury and a grave risk of death, i.e., on April 7, 2005. We thus conclude that count two of the indictment is not duplicitous because it alleges a continuing offense with a series of serious physical injuries culminating in a grave risk of death on one occasion.

Finally, we note that, as the Court of Appeals stated in the context of depraved indifference murder, "a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" is a prime example of depraved indifference (People v Suarez, 6 NY3d 202, 212). Such a course of conduct must necessarily involve multiple incidents. If one were to contend that the inclusion of multiple incidents renders a depraved indifference count duplicitous, then it would be impossible to prove an allegation of "a brutal and prolonged course of conduct" in support of a charge of depraved indifference. The allegations of depraved indifference assault in this case, if proven, establish the requisite shocking and callous conduct toward a particularly vulnerable victim over a prolonged period of time.