Criminal Court of the City of New York, New York County
November 12, 2013
The People of the State of New York, Plaintiff,
Nathan Elliott, Defendant
For the People: Cyrus R. Vance, Jr. New York County District Attorney by Sara Sullivan, Esq., Assistant District Attorney
For the Defendant: Teghan M. DeLane, Esq. Neighborhood Defender Service of Harlem
Steven M. Statsinger, J.
Defendant, charged with Resisting Arrest and Disorderly Conduct, moves dismiss the Information on the ground that it is duplicitous.  For the reasons set out below, the Court DENIES the motion to dismiss.
A. FACTUAL BACKGROUND
1. The Allegations
According to the Information, at 10:40 p.m. on August 23, 2012, Police Officer James Cleary responded to multiple radio runs indicating that there was a dispute in progress at the corner of Central Park West and West 102nd Street, in Manhattan. When Cleary arrived, he saw the defendant on the sidewalk, screaming at another person. Cleary told the defendant to stop, but defendant refused to leave and continued to yell and scream. He also cursed at Cleary and another officer. Four passing cars slowed to watch the defendant, and about ten pedestrians and bystanders also gathered nearby.
When Cleary tried to arrest the defendant, defendant lay down on a bench and stretched out and tensed his arms, making it difficult for Cleary to handcuff him. Later, defendant refused to exit the police vehicle when it arrived at the 24th Precinct, then twisted and flailed his torso and limbs, making it difficult to bring him into the stationhouse.
2. Legal Proceedings
On August 24, 2012, defendant was arraigned on an Information charging him with one count of Resisting Arrest (Penal Law § 205.30) and one count of Disorderly Conduct (Penal Law § 240.20(2)). He posted $ 500 cash bail the following day.
Defendant moved to dismiss the Information on July 11, 2013, alleging that it is duplicitous. On September 11, 2013, the People waived a written response.
The Information here does not improperly charge more than one offense in either the Disorderly Conduct count or the Resisting Arrest count. Defendant's motion to dismiss is accordingly denied.
The Information provides:
[W]hen deponent responded to approximately four radio runs regarding a dispute in progress at [sic] on the sidewalk at [the corner of Central Park West and West 102nd Street] deponent observed defendant yelling and screaming at another individual on the sidewalk at the above time, which was approximately 22:40 at night.
Deponent states that when deponent instructed defendant to cease defendant's above-described conduct, deponent observed that defendant refused to leave and continued to yell and scream after stating in substance to deponent NO, I'M NOT LEAVING I WANT TO TALK TO HER. Deponent further observed defendant state in substance to deponent and another member of the New York City Police Department FUCK YOU, FAGGOTS, SUCK MY DICK.
Deponent further observed approximately four cars slow down and watch defendant as defendant engaged in the above-described conduct. Deponent further observed approximately ten pedestrians and bystanders observing defendant's conduct.
Deponent further states that as deponent was placing defendant under arrest for the offense described above, deponent observed defendant lie down on a bench and stretch defendant's arms out, then tense defendant's arms, making it difficult for deponent to place defendant's arms in handcuffs. Deponent further states that after deponent transported defendant to the 024 Precinct, deponent further observed defendant refuse to exit the police vehicle while contorting defendant's body. Deponent further observed that after defendant was removed from the vehicle, defendant continued to twist and flail defendant's torso and limbs, requiring two additional officers to bring defendant into the 024 Precinct stationhouse.
2. Duplicitousness - Definition and Remedy
It is a fundamental principle of criminal procedure that each count of an indictment "may charge one offense only." CPL § 200.30(a). A count that charges more than one offense is duplicitous. People v. Askoy, 84 N.Y.2d 912, 914 -15 (1994); People v. Keindl, 68 N.Y.2d 410, 417 (1986). The rule against duplicitous pleadings protects several important constitutional rights: to adequate notice of the charges, to be free from double jeopardy, and to a unanimous verdict. Id. at 418.
The proscription against duplicitous pleadings - and the reasons behind it - apply with equal force where the defendant is charged, in an information, with misdemeanors or other lesser offenses. See, e.g. People v. Evangelista, 1 Misc.3d 873, 875-76, 879 (Crim. Ct. Bronx Co. 2003); People v. Rios, 142 Misc.3d 357, 359 (Crim. Ct. Bronx Co. 1989). Indeed, the language of CPL § 100.15, which prescribes the form and content of an information, and requires that the accusatory part of an information charge separate offenses in separate counts, "would appear to incorporate CPL Art. 200." People v. Todd, 119 Misc.2d 488, 489 (Crim. Ct. NY Co.1983). See also People v. Barhan, 147 Misc.2d 253, 256 (Crim. Ct. NY Co. 1990).
However, not every count of a charging instrument that encompasses multiple acts is duplicitous. The prohibition against duplicitous pleadings applies only to "offenses that are punishable by the performance of a single act." Evangelista, 1 Misc.3d at 875. Some offenses are continuing offenses that by their nature encompass multiple acts or span a period of time, and a pleading charging one of those offenses is not duplicitous, even where it alleges several acts or a time period that might otherwise be unreasonable. Id.
Thus, for example, Keindl, 68 N.Y.2d at 421 -22, upheld counts of an indictment that charged the defendant with Endangering the Welfare even though they alleged a pattern of sexual behavior over a two-year period. That particular offense "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." Id. at 421. Similarly, Barhan found no duplicitousness in a count charging Aggravated Harassment in the Second Degree that covered numerous telephone calls over a several-month period. 147 Misc.2d at 257-58. Communicating in a manner likely to cause annoyance or alarm "can be established by either a single telephone call or by a number of calls to the same person repeated over a period of time." Id. at 258.
If the offense is not one that is typically characterized by a single act or a short period of time, even a very long time period and a large number of acts can be charged in a single count. For example, in People v. Herlihy, 66 A.D. 534 (1st Dept. 1901), aff'd, 170 NY 584 (1902), a police officer was charged with "willfully omitting to perform a duty enjoined by law on him as a public officer, " in a single-count indictment that alleged that he willfully failed to shut down some 109 houses of prostitution within his precinct over a period of nearly fourteen months. The Appellate Division concluded - and the Court of Appeals agreed - that the indictment did not charge the defendant with "more than one crime." Id.
It is true that, if the defendant willfully and knowingly permitted one house of ill fame to be maintained within his precinct, he was guilty of the crime charged in this indictment; but the allegation that he permitted over 100 of such houses to be maintained does not render him the less guilty, nor does it charge him with an additional offense. The crime is the same. The gravamen of the offense alleged is neglect of duty in failing to suppress or close such houses...
Here the offense... consists in his willful omission and neglect of duty to suppress and prevent the maintenance of houses of ill fame within his precinct at the time specified. This is the charge, and, if he is guilty of it, then he is guilty of but one offense, and it matters not whether there be one house or upwards of 100, as alleged.
In other words, an instrument is not duplicitous simply because it charges multiple acts; it is only duplicitous if it charges multiple crimes. A single count that alleges multiple means of committing the same offense is not necessarily duplicitous. People v. Wells, 7 N.Y.3d 51, 57 (2006), found no duplicitousness in a single count that charging the defendant with attempted murder by shooting at two detectives, since "the identity of the specific police officer against whom defendant's murderous intent was directed is not an element of attempted murder in the first or second degree." Similarly, a burglary count that alleged an unlawful entry with the intent to commit two different crimes was likewise sound. People v. Gilbo, 28 A.D.3d 945, 946 (3d Dept. 2006).
Finally, it is also clear that, while dismissal is one remedy for a duplicitous pleading, it is not the only remedy. Evangelista, 1 Misc.3d at 877-78. A duplicitous pleading can be cured by the filing of a superseding information, a prosecutor's information or a bill of particulars. Id. at 878. See also People v. Davis, 72 N.Y.2d 32, 38 (1988). Potential duplicitousness can also be cured by a jury instruction. In People v. Vanni, 9 Misc.3d 130(A) at *1 (App. Term 9th and 10th Dist. 2005), a jury instruction requiring that the jury find that the defendant committed all of the acts alleged in the count cured the defect. Similarly, in People v. Codina, ___ A.D.3d ___ 2013 WL 5433469 (1st Dept. 2013), a jury instruction limiting the jury's consideration to one of two arguably duplicitous legal theories cured the defect. Finally, in People v. First Meridian Planning Corp., 86 N.Y.2d 608, 616 (1995), the court reinstated a count that the trial court had dismissed as duplicitous, and directed that the trial court instruct the jury in a way that would cure it..
3. The Disorderly Conduct Count is Not Duplicitous
Count Two of the Information charges the defendant with Disorderly Conduct under Penal Law § 240.20(2), but that count of the Information clearly does not charge multiple offenses.
Section 240.20(2) provides that a "person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof....[h]e makes unreasonable noise." The term "unreasonable noise" describes "a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate" - an "assault on public sensibilities." People v. Bakolas, 59 N.Y.2d 51, 53-54 (1983) (per curiam).
But it is simply untrue that each unreasonable noise that a defendant might be accused of making during a single episode needs to be charged in a single count. Rather, the offense looks at the totality of the defendant's behavior. Thus, for example, in People v. Zherka, 25 Misc.3d 1210(A) at *5 (Mt. Vernon City Ct. 2009), the court convicted the defendant of violating § 240.20(2) after an episode not all that dissimilar from that alleged here. The defendant loudly cursed at a police officer in front of a crowd outside of the Mt. Vernon City Hall, and continued to do so despite being told "several times" to lower his voice and calm down. Id. In People v. Madson, 10 Misc.3d 1058 (A) at *2 (Crim Ct Kings Co 2005), the defendant was likewise properly charged in a single count with a course of conduct that constituted "unreasonable noise." He operated sound equipment after a block party at a loud volume two hours after the shut-down time specified in his permit, then continued to do so after an officer told him to turn it off. Id.
The accusatory instruments were not duplicitous in those cases, nor is the Information here. It alleges that defendant was in the midst of making unreasonable noise as the police arrived on the scene, and that he continued to do so after an officer told him to stop. It is this course of activity that constitutes the charged offense under § 240.20(2), and this is a perfectly legitimate way of charging that offense. See People v. Warmbrand, 4 Misc.3d 132(A) at *1 (App. Term 9th and 10th Dist. 2004) (defendant screamed at his girlfriend and continued to do so after police arrived and told him to stop); Zherka, 25 Misc.3d 1210(A) at *5; People v. Madson, 10 Misc.3d 1058 (A) at *2. The offense conduct charged in the Disorderly Conduct count occurred at a single location and spanned a very short time. Accordingly, that count Information is not duplicitous.
4. The Resisting Arrest Count is Not Duplicitous
For similar reasons, the motion to dismiss the Resisting Arrest count is also denied. That count charges the defendant with a single instance of resisting arrest and is not duplicitous.
A person resists arrest when he "intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." Penal Law § 205.30. An arrest occurs "when a defendant is taken into custody or otherwise deprived of his freedom." People v. Lopez, 19 Misc.3d 465, 468 (Crim. Ct. Kings Co). See also People v. Jones, 172 A.D.2d 265, 266 (1st Dept. 1991) ("An arrest occurs if the intrusion is of such magnitude that an individual's liberty of movement is significantly interrupted by police restraint")(citation omitted). The arrest is distinct from the subsequent decision to "transport [an arrestee] to the police station and charge [him] with a crime." People v. Chestnut, 51 N.Y.2d 14, 20 (1980).
While an arrest might involve a series of steps, it is completed by the time the defendant is taken into custody and placed in a police vehicle. People v. Bauer, 161 Misc.2d 588, 596 (Watertown City Ct. 1994) ("The taking and then detaining of a person involves a series of steps which include advising the person the reason for arrest, a pat-down for weapons, handcuffing the defendant and escorting the defendant to the police car to be transported.") Events that occur after the arrest are not part of the arrest itself. See, e.g., CPL 160.10; People v. Hasenflue, 169 Misc.2d 766, 769 (Sup. Ct. Ulster County 1996) ("an arrest is complete at the point the defendant is taken into custody").
Accordingly, here, the count charging defendant with Resisting Arrest is not duplicitous. It alleges a single act of resisting - defendant's effort to prevent the officer from handcuffing him. That is the offense with which the defendant is charged, and it is a single offense. That the count contains additional facts describing defendant's obstructive behavior once the squad car arrived at the stationhouse - his refusal to exit the vehicle and uncooperativeness when led inside - does not render it duplicitous. Those post-arrest events were not part of the arrest.
For these reasons, the defendant's motion to dismiss the Resisting Arrest count is denied.
Because neither count of the Information is duplicitous, defendant's motion to dismiss is denied in its entirety.
For the foregoing reasons, the Court denies defendant's motion to dismiss the Information.
This Constitutes the Decision and Order of the Court.