This matter comes on by motion of defendant immediately prior to trial to dismiss certain counts of Indictment #116-2010 pursuant to the Court of Appeals decision in People v Alonzo, 16 NY3d 267 recently decided on February 24, 2011

The People submit opposition that the defendant's argument is without merit.

The defendant moves to dismiss Count 2, criminal sexual act in the first degree [PL §130.50(1)]; Count 3, sexual abuse in the first degree [PL §130.65(1)]; Count 5, criminal sexual act in the third degree [PL §130.40(2)]; and Count 6, sexual abuse in the third degree [PL §130.55] as multiplicitous.

The defendant relies on the holding of People v Alonzo, supra where the Court of Appeals held that in a single, uninterrupted attack, in which the attacker groped several parts of a victim's body, the attacker may be charged with only one count of sexual abuse. Thus, although the defendant groped the victim's breast and buttocks, such violations constituted only [*2]one violation of the Penal Law, and not separate incidents.

The sexual contact charged in Alonzo, supra is the act of proscribed touching of a sexual or intimate part. There an allegation of a buttock or breast is not legally sufficient.

Alonzo, supra defines multiplicitous counts as occurring "when a single offense is charged in more than one count." Multiplicitous counts are dangerous because it creates a potential risk for the defendant in that he may be convicted of crimes he may not have committed. Therefore, counts that are multiplicitous should be dismissed in an effort to protect the interests of justice and the defendant.

In the instant case, it is alleged in the ten (10) count indictment that defendant Charles ^[FN1] violated multiple provisionsof the Penal Law and the District Attorney charged the defendant under those different theories for an incident of multiple acts of oral sex and intercourse in the victim's bedroom on May 27, 2011, during "the evening hours."

Under the Count 2, criminal sexual act [PL §130.50(1)], the alleged act stated that the defendant "inserted his penis into the mouth of a 15-year-old female."

Count 3, sexual abuse in the first degree [PL §130.65(1)], was allegedly committed by the defendant by inserting "his finger into the anus of a 15-year-old female."

It is clear that these counts differ in the separate and distinct proscribed conduct in which the alleged attack took place and thus, the counts are separate alleged theories of a sexual attack under different sections of the Penal Law, although occurring at the same time and place.

Count 5, criminal sexual act in the third degree [PL §130.40(2)] alleged a theory where "the defendant...being 21 years or more, did engage in oral sexual conduct with another person less than 15 years old" in conjunction with the theory that the defendant inserted "his penis into the mouth of a 15-year-old female." This differs from prior Counts because this [*3]theory is based only on the statutory age gap between the perpetrator and victim without an allegation of physical force. Thus, this charge is legally sufficient.

Count 6, sexual abuse in the third degree [PL §130.55] alleges the theory of a sexual contact between a victim under the age of seventeen and an offender over the age of twenty-one years of age. Here again this change is a separate and distinct violation of law and is legally sufficient.

Unlike Counts 2 and 3, Count 6 does not include a "forcible compulsion" element. Rather, the Penal Law targets the lack of consent based merely upon age between the victim and the offender, whereby the alleged incident was sexual contact, voluntary or not. This statute [PL §130.55] is construed to interpret a broad application, and therefore it does not incorporate the effects of the other counts. Each count on its own poses a different theory under different sections of the Penal Law and are not multiplicious.

Clearly, the separate physical acts and age differences are clearly defined and separated by PL §130.35; § 130.40; § 130.55.

Based upon the above, it is

ORDERED, that defendant's motion to dismiss Count 2, Count 3, Count 5 and Count 6 of Indictment #116-2010 as multiplicious is denied.

This shall constitute the Decision and Order of this Court.

DATED: June 23, 2011

Monticello, NY

__________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate