PEOPLE v. KNIFFIN (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and the indictment is dismissed without prejudice to the People to file any appropriate charges.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal mischief in the fourth degree (Penal Law § 145.00[3]) arising from allegations that defendant caused damage to a newly resurfaced road that was under repair by spinning the tires of his vehicle on the road. Defendant contends that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.30. Initially, although the People contend that defendant waived that contention by failing to move for that relief upon reasonable notice to the People (see CPL 210.45[1]; People v. Baxter, 216 A.D.2d 931, 931, 629 N.Y.S.2d 347 [4th Dept. 1995]; see generally People v. Lawrence, 64 N.Y.2d 200, 203, 485 N.Y.S.2d 233, 474 N.E.2d 593 [1984]), we are “precluded from affirming on that ground inasmuch as the court did not rule on that issue” (People v. Davis, 159 A.D.3d 1531, 1534, 73 N.Y.S.3d 711 [4th Dept. 2018]; see CPL 470.15[1]; People v. LaFontaine, 92 N.Y.2d 470, 473–474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998], rearg. denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999]). Nevertheless, defendant's contention lacks merit. “[A] statement of readiness made contemporaneously with the filing of the indictment can be effective to stop the ‘speedy trial’ clock if the indictment is filed at least two days before the CPL 30.30 period ends” (People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998]). Here, the indictment was so filed, and the prosecutor thereafter promptly notified defense counsel of the statement of readiness (see People v. Freeman, 38 A.D.3d 1253, 1253, 833 N.Y.S.2d 777 [4th Dept. 2007], lv denied 9 N.Y.3d 875, 842 N.Y.S.2d 787, 874 N.E.2d 754 [2007], reconsideration denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008]; People v. Smith, 1 A.D.3d 955, 956, 767 N.Y.S.2d 714 [4th Dept. 2003], lv denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004]; see also Carter, 91 N.Y.2d at 798–799, 676 N.Y.S.2d 523, 699 N.E.2d 35).

We agree with defendant, however, that the single-count indictment was rendered duplicitous by the trial evidence. CPL 200.30(1) provides that “[e]ach count of an indictment may charge one offense only.” Thus, “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts” (People v. Bauman, 12 N.Y.3d 152, 154, 878 N.Y.S.2d 235, 905 N.E.2d 1164 [2009]). Here, the indictment charged defendant with damaging “the road surface at the intersection of Woolhouse Road and County Road #32” and thus was not facially defective. At trial, however, the evidence established that defendant committed two distinct offenses by damaging two different portions of the road at that intersection at two different times. Consequently, “[r]eversal is required because the jury may have convicted defendant of an unindicted [act of criminal mischief], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges ․, as well as the danger that ․ different jurors convicted defendant based on different acts” (People v. Wade, 118 A.D.3d 1370, 1371–1372, 988 N.Y.S.2d 351 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] [internal quotation marks omitted]; see People v. Clark, 6 A.D.3d 1066, 1068, 776 N.Y.S.2d 656 [4th Dept. 2004], lv denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199 [2004]; cf. People v. Gianni, 303 A.D.2d 1012, 1012–1013, 756 N.Y.S.2d 688 [4th Dept. 2003], lv denied 100 N.Y.2d 581, 764 N.Y.S.2d 391, 796 N.E.2d 483 [2003]). We therefore reverse the judgment and dismiss the indictment without prejudice to the People to file any appropriate charges (see generally People v. Cox, 145 A.D.3d 1507, 1507–1508, 44 N.Y.S.3d 631 [4th Dept. 2016], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017]).