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.
Leave to appeal this decision has been granted by a dissenting justice. Thus, this case will be reviewed by the Court of Appeals.
