SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1511 

KA 09-02220 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DANA P. BROWN, DEFENDANT-APPELLANT. 

 

THOMAS E. ANDRUSCHAT, EAST AURORA, FOR DEFENDANT-APPELLANT. 

DANA P. BROWN, DEFENDANT-APPELLANT PRO SE.

GERALD L. STOUT, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,

J.), rendered September 24, 2009. The judgment convicted defendant,

upon a jury verdict, of predatory sexual assault against a child,

sexual abuse in the first degree and endangering the welfare of a

child. 

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, predatory sexual assault against a

child (Penal Law § 130.96). Defendant moved pro se to dismiss the

indictment on the ground that he was denied his right to a speedy

trial pursuant to CPL 30.30, but he failed to contest the specific

statutory exclusions on which the People thereafter relied. It is

well settled that, “once the People identify the statutory ‘exclusions

on which they intend to rely,’ the defendant preserves challenges to

the People’s reliance on those exclusions for appellate review by

‘identify[ing] any legal or factual impediments to the use of [those]

exclusions’ . . . The purpose of adhering to strict rules of

preservation in [that] context is to provide the court with an

‘opportunity to remedy the problem and thereby avert reversible 

error’ ” (People v Goode, 87 NY2d 1045, 1047). Defendant therefore

failed to preserve for our review his contentions regarding those

exclusions. In any event, those contentions are without merit. The

People timely announced their readiness for trial within six months of

the commencement of the criminal action (see CPL 30.30 [1] [a]). The

People correctly concede that they are chargeable with the delay

between August 21, 2008, when County Court dismissed the first

indictment, and September 26, 2008, when the People announced their

readiness for trial on the second indictment. That delay
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KA 09-02220 

notwithstanding, the total prereadiness time chargeable to the People

was 40 days, and only an additional 13 days of postreadiness delay is

chargeable to the People. “Thus, the record establishes that the

total period of time chargeable to the People is less than six months”

(People v Figueroa, 15 AD3d 914, 915).

Contrary to the further contention of defendant, the court

properly refused to suppress his statements to the police. The record

of the Huntley hearing establishes that defendant was not subject to

custodial interrogation and thus that Miranda warnings were not

required (see generally People v Centano, 76 NY2d 837, 838; People v

Yukl, 25 NY2d 585, 589, cert denied 400 US 851). 

Defendant contends that he was denied a fair trial based on the

testimony of a police investigator with respect to the video recording

that defendant showed to the victim and which was obtained by the

investigator. Defendant failed to object to the prosecutor’s comments

on summation concerning that testimony, including the prosecutor’s use

of the name of the video recording, and thus his contention with

respect to those comments is not preserved for our review (see People

v Beggs, 19 AD3d 1150, 1151, lv denied 5 NY3d 803). Defendant also

failed to preserve for our review his contention that the court failed

to clarify its jury instruction regarding that testimony inasmuch as

he failed to object to that charge (see People v Nenni, 269 AD2d 785,

786, lv denied 95 NY2d 801; People v Ocasio, 241 AD2d 933, lv denied

90 NY2d 908). In any event, defendant’s contentions are without

merit. The victim testified that she watched a certain movie at the

direction of defendant, and thus the investigator’s testimony that

such a video recording existed was admissible to support her

testimony, and the prosecutor was permitted to comment on that

evidence in summation. 

Defendant also failed to preserve for our review his contention

that the court permitted improper bolstering of the victim’s testimony

(see People v Rodriguez, 284 AD2d 952, lv denied 96 NY2d 924; People v

Dunn, 204 AD2d 919, 920-921, lv denied 84 NY2d 907). In any event,

that contention is without merit. With respect to the testimony of

the first witness in question, we note that the court sustained

defendant’s objection to that testimony and thus it cannot be said

that the court permitted improper bolstering through the testimony of

that witness. With respect to the testimony of the second witness in

question, we note that the witness merely testified that the victim

indicated that her father was the perpetrator. Even assuming,

arguendo, that the witness’s testimony constituted improper

bolstering, we conclude that the error is harmless inasmuch as the

evidence of defendant’s guilt was overwhelming and there was no

significant probability that defendant would have been acquitted but

for the error (see People v Rice, 75 NY2d 929, 932; see generally

People v Crimmins, 36 NY2d 230, 241-242). 

Defendant failed to preserve for our review his further

contention that the first count of the indictment is duplicitous (see

People v Sponburgh, 61 AD3d 1415, lv denied 12 NY3d 929; People v

Pyatt, 30 AD3d 265, lv denied 7 NY3d 869), and we decline to exercise
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KA 09-02220 

our power to review that contention as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]). We reject the

contention of defendant in his pro se supplemental brief that he was

denied effective assistance of counsel based on, inter alia, defense

counsel’s failure to move to dismiss the first count of the indictment

as duplicitous. “To prevail on a claim of ineffective assistance of

counsel, it is incumbent on defendant to demonstrate the absence of

strategic or other legitimate explanations for [defense] counsel’s

failure to [make such a motion]” (People v Rivera, 71 NY2d 705, 709). 

Here, defendant failed to meet that burden, and thus defense counsel’s

purported “failure, ‘without more, is insufficient to demonstrate

ineffective assistance’ ” (People v Hibbard, 27 AD3d 1196, 1197, lv

denied 7 NY3d 790; see People v Hardy, 49 AD3d 1232, affd 13 NY3d

805). 

We disagree with the dissent’s conclusion that “there can be no

doubt that a motion to dismiss counts one and two on duplicity grounds

would have been successful and resulted in the dismissal of those

counts.” To the contrary, the court could have denied the motion and

instead given a jury instruction that would have “eliminated any

‘danger that the jury convicted defendant of an unindicted act or that

different jurors convicted defendant based on different acts’ ”

(People v Gerstner, 270 AD2d 837, 838; see e.g. People v Wise, 49 AD3d

1198, 1199, lv denied 10 NY3d 940, 966; People v Caballero, 23 AD3d

1031, 1032, lv denied 6 NY3d 846). Thus, defense counsel was

confronted with a tactical determination regarding which course of

action was in defendant’s best interests, and defendant failed to meet

his burden of establishing that defense counsel did not have a

strategic or other valid reason for his alleged deficiency. 

Furthermore, where, as here, the defendant challenges defense

counsel’s failure, inter alia, to make a motion, “prudence dictates

that the issue of ineffective assistance of counsel be raised in a

posttrial application . . . where ‘a thorough evaluation of each claim

based on a complete record’ can be made” (People v Zeh, 289 AD2d 692,

695, quoting Rivera, 71 NY2d at 709; see People v Marcial, 41 AD3d

1308, 1309, lv denied 9 NY3d 878). “We further conclude on the record

before us that the cumulative effect of defense counsel’s alleged

deficiencies, viewed in totality and as of the time of the

representation, did not deprive defendant of effective assistance of

counsel” (Marcial, 41 AD3d at 1309; see generally People v

Satterfield, 66 NY2d 796, 798-799; People v Baldi, 54 NY2d 137, 147). 

The sentence is not unduly harsh or severe. We have considered

the remaining contentions of defendant in his main and pro se

supplemental briefs and conclude that they are without merit.

All concur except CARNI and LINDLEY, JJ., who dissent in part and

vote to modify in accordance with the following Memorandum: We

respectfully disagree with the conclusion of our colleagues that we

should not review defendant’s duplicity contention as a matter of

discretion in the interest of justice. Inasmuch as defense counsel

failed to move to dismiss the first and second counts of the

indictment on duplicity grounds, we also disagree with the majority’s

conclusion that defendant received effective assistance of counsel. 
-4- 1511 

KA 09-02220 

We therefore dissent in part. 

Defendant contends that count one of the indictment, charging him

with predatory sexual assault against a child (Penal Law § 130.96),

was rendered duplicitous by the evidence at trial. That count alleges

underlying conduct constituting criminal sexual act in the first

degree (§ 130.50 [4]). Because the People charged defendant with

predatory sexual assault of a child based on a single-act theory, the

rule prohibiting duplicity applies (see People v Keindl, 68 NY2d 410,

420-421, rearg denied 69 NY2d 823). Although count one is not

duplicitous on its face inasmuch as it alleges a single act (see CPL

200.50 [3]-[7]; Keindl, 68 NY2d at 417-418), that count was rendered

duplicitous by the testimony of the victim tending to establish the

commission of multiple criminal acts during the period of time

specified in count one (see People v Bracewell, 34 AD3d 1197, 1198;

People v Dalton, 27 AD3d 779, 781, lv denied 7 NY3d 754, 811; People v

Jelinek, 224 AD2d 717, 718, lv denied 88 NY2d 880, cert denied 519 US

900). Based on that evidence, “it is impossible to verify that each

member of the jury convicted defendant for the same criminal act”

(Dalton, 27 AD3d at 781). Thus, because count one was rendered

duplicitous as a matter of well-settled law but defense counsel failed

to move to dismiss that count, the question becomes whether this Court

should exercise its discretion to review defendant’s contention in the

interest of justice (see CPL 470.15 [6] [a]).

The duplicity principle is designed to protect the accused

against successive prosecutions in violation of the Double Jeopardy

Clauses of the U.S. and N.Y. Constitutions (see generally People v

First Meridian Planning Corp., 86 NY2d 608, 615). “State and Federal

constitutional prohibitions against double jeopardy are deemed so

fundamental that they are preserved despite the failure to raise them

at the trial level” (People v Michallow, 201 AD2d 915, 916, lv denied

83 NY2d 874). The prohibition against duplicity contained in CPL

200.30 [1] is essential because it “furthers not only the functions of

notice to a defendant and of assurance against double jeopardy, but

[it] also ensures the reliability of the unanimous verdict” (Keindl,

68 NY2d at 418). We recognize that this case does not present a

double jeopardy problem per se. Nonetheless, the fundamental and

compelling reasons behind the duplicity principle present interest of

justice and constitutional concerns that warrant our review (see

People v Jones, 165 AD2d 103, 109, lv denied 77 NY2d 962). Those

reasons transcend the nature of any particular crime or the individual

characteristics of any particular defendant. Indeed, they are

fundamental to our principles of justice. In light of the

indisputable merit in defendant’s duplicity contention, we conclude

that it should be reached—as this Court and others have previously

done under similar circumstances (see People v Bennett, 52 AD3d 1185,

1186, lv denied 11 NY3d 734; Bracewell, 34 AD3d at 1198; see also

Jones, 165 AD2d at 109). 

Although defendant limited his duplicity contention to count one

of the indictment, it is readily apparent that count two of the

indictment, charging defendant with the single-act crime of sexual

abuse in the first degree (Penal Law § 130.65 [3]), was also rendered
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KA 09-02220 

duplicitous by the trial evidence. 

Defendant contends in his pro se supplemental brief that he was

denied effective assistance of counsel based upon, inter alia, defense

counsel’s failure to move to dismiss the first count of the indictment

as duplicitous. “A single error may qualify as ineffective

assistance, but only when the error is sufficiently egregious and

prejudicial as to compromise a defendant’s right to a fair trial”

(People v Caban, 5 NY3d 143, 152; see People v Hobot, 84 NY2d 1021,

1022; People v Flores, 84 NY2d 184, 188-189). To establish

ineffective assistance of counsel, a defendant must “demonstrate the

absence of strategic or other legitimate explanations” for defense

counsel’s allegedly deficient performance (People v Rivera, 71 NY2d

705, 709). Here, there can be no doubt that a motion to dismiss

counts one and two on duplicity grounds would have been successful and

resulted in the dismissal of those counts. We find no legitimate

strategic or tactical explanation for defense counsel’s failure to

move to dismiss the two most serious counts of the indictment and

instead expose defendant to conviction and possible further subsequent

prosecution on one or more of the unspecified criminal sexual acts, as

well as the risk of a less than unanimous jury verdict on each of the

two duplicitous counts. While the majority concludes that a posttrial application and a “ ‘complete record’ ” is necessary for a

thorough evaluation of defendant’s contention concerning ineffective

assistance of counsel, we see no need for such process inasmuch as the

trial evidence rendered counts one and two patently duplicitous and

thus provided a “clear-cut and completely dispositive” basis for their

dismissal (People v Turner, 5 NY3d 476, 481). We therefore conclude

that, with respect to counts one and two, defendant was denied the

right to effective assistance of counsel (see generally People v

Baldi, 54 NY2d 137, 147). 

We would therefore modify the judgment as a matter of discretion

in the interest of justice and on the law by reversing those parts

convicting defendant of predatory sexual assault against a child under

count one of the indictment and sexual abuse in the first degree under

count two of the indictment and dismissing those counts of the

indictment without prejudice to the People to re-present any

appropriate charges under those counts of the indictment to another

grand jury. 

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court