People v. SinghPeople v. Singh
The defendant was charged, under counts 1 through 40 of an indictment, with committing rape in the second degree (
A jury trial was held, during which thе trial court, without objection, erroneously instructed the jury that, to prove the defendant‘s guilt of rape in the second degree, the People were required to prove that the complainant was incapable of consent because she was less than 14 years old during the rel
The defendant correctly contends that counts 2 through 16 and counts 41 through 74 of the indictment must be dismissed as duplicitous. Contrary to the People‘s contention, the defendant‘s contention that the complainant‘s trial testimony rendered these counts duplicitous was preserved for appellate review (see People v Allen, 24 NY3d 441, 449 [2014]).
“Each count of an indictment may charge one offense only” (
Here, counts 2 through 16 and counts 41 through 74 each charged the defendant with committing a single act оf sexual intercourse within a different two-week time period. Thus, these counts were not duplicitous on their face. However, at trial, the complainant testified that during each two-week period encompassed by these counts, the defendant had sexual intercourse with her two to three times per week, for a total of four to six times during eaсh two-week period charged by these counts of the indictment. Accordingly, the complainant‘s trial testimony demonstrates that these counts are premised upon multiple acts of rape, and are therefore void as duplicitous (see People v Jean, 117 AD3d 875 [2014]; People v Foote, 251 AD2d 346 [1998]; People v Jelinek, 224 AD2d 717, 718 [1996]). We therefore vacate the convictions under counts 2 through 16 and counts 41 through 74 of the indictment and the sentenсes imposed thereon, and dismiss those counts of the indictment, with leave to the People, should they be so advised, to resubmit the charges to another grand jury.
Here, since the People did not object to the erroneous jury charge, they were “bound to satisfy the heavier burden” (People v Malagon, 50 NY2d 954, 956 [1980]; see People v Kearse, 289 AD2d 507, 508 [2001]; People v Free, 233 AD2d 463 [1996]) of proving, for counts 1 through 40, that the defendant engaged in sexual intercourse with a person less than 14 years old. Since the evidence demonstrated that the complainant was 14 years old during the time periods encompassed by counts 17 through 40 of the indictment, the People failed to satisfy this burden as to those counts. Accordingly, we vacate the convictions under counts 17 through 40 of the indictment as against the weight of the evidence, vacate the sentences imposed thereupon, and dismiss those counts of the indictment.
The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to prove his guilt with respect to count 1 of the indictment (see
However, vacatur оf the defendant‘s conviction of rape in the second degree under count 1 of the indictment, as well as his conviction of endangering the welfare of a child under count 75 of the indictment, is required in light of misconduct committed by the prosecutor during summation. While the defendant‘s claim regarding the comments made by the prosecutor during
“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” (People v Ashwal, 39 NY2d 105, 109 [1976]). Rather, “[t]here are certain well-defined limits” (id. at 109). Among other things, “[thе prosecutor] must stay within ‘the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the aсcused” (People v Spann, 82 AD3d at 1015, quoting People v Bartolomeo, 126 AD2d 375, 390 [1987] [internal quotation marks omitted]; see People v Ashwal, 39 NY2d at 109). A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role (see People v Santorelli, 95 NY2d 412, 420-421 [2000]) and so as to avoid the waste of time and expensе that occurs when a new trial must be conducted solely on the basis of summation misconduct. Here, the prosecutor surpassed the “well-defined limits” (People v Ashwal, 39 NY2d at 109).
The prosecutor actеd as an unsworn witness when, in response to defense counsel‘s summation comments regarding the lack of corroborative medical evidence and the failure to call сertain witnesses, the prosecutor told the jury that the uncalled witnesses had “nothing to offer” and that the medical records the prosecution failed to offer into evidenсe were “either irrelevant or cumulative” (see People v Whalen, 59 NY2d 273, 281 [1983]; People v Smith, 288 AD2d 496 [2001]; People v Brown, 256 AD2d 414, 416 [1998]). The prosecutor also improperly invited the jury to speculate as to certain matters, despite advance warning by the trial court not to engage in that line of comment (see People v Ashwal, 39 NY2d at 110; People v Marcus, 101 AD3d 1046, 1048 [2012]). Further, the prosecutor shifted the burden of proof by telling the jury, and repeatedly returning to this theme, that it had not “heard” any “compelling reason” for the complainant to lie, and by suggesting that the jury would have to convict the defendant if it did not “buy” the defendant‘s explanation of certain evidence (see People v Spann, 82 AD3d at 1015; People v Levandowski, 8 AD3d 898, 900-901 [2004]; People v Pagan, 2 AD3d 879, 880-881 [2003]; People v Bull, 218 AD2d 663, 665 [1995]). Thе prosecutor further improperly suggested that the jury would have to conclude that the complainant was “evil” in order to
We agree with the defendant that the cumulative effect of the prosecutor‘s improper summation comments deprived him of his right to a fair trial (see People v Spann, 82 AD3d at 1016; People v Brown, 26 AD3d 392 [2006]; People v Pagan, 2 AD3d at 881). Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trial on counts 1 and 75 of the indictment (see
Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.