In People v. Wells, 2006 NY Slip Op 03639, the Court of Appeals considered a number of issues, including the defendant's contention that the indictment charging him with Attempted Murder in the First Degree for shooting at two police detectives was duplicitous since the evidence at trial failed to establish which detective he intended to kill.
In reaching its conclusion, the Court first analyzed the legal basis for the charges against Mr. Wells and set forth the relevant law regarding duplicitous charges:
A count of an indictment is duplicitous and, hence, defective if it charges more than one offense (see CPL 200.30 ; People v Keindl, 68 NY2d 410, 417-418 ). If the commission of a single act constitutes a crime, "that act must be the only offense alleged in the count" and "acts which separately and individually make out distinct crimes must be charged in separate and distinct counts" (People v Keindl, 68 NY2d at 417)
The Court then analyzed two prior relevant decisions:
As we explained in People v Fernandez (88 NY2d 777 ), "actual death is not an element" of attempted murder and, therefore, the "identity of the person whose death" was intended is not relevant in determining whether the crime has been committed (id. at 783). The defendant in Fernandez was charged with attempted murder for firing a gun at a group of individuals and shooting a person named Correa. We ruled that it was proper to instruct the jury that it could convict the defendant of attempted murder if it found that he intended to cause the death of Correa or another person in the group (see id. at 783). And, in People v Cabassa (79 NY2d 722, 728 , cert denied sub nom. Lind v New York, 506 US 1011 ), we concluded that there was sufficient evidence to support an attempted first-degree murder conviction where a gun was fired indiscriminately toward two pursuing police officers who were in the same patrol car and at a police officer standing on the street next to a roadblock.
Accordingly, the Court concluded that it was not necessary for the prosecution to prove which officer the defendant was shooting at, and thus the count was not duplicitous:
The trial court's refusal to instruct the jury that it had to [*5]unanimously determine which detective defendant intended to kill did not render the attempted murder counts duplicitous because each charged a single crime based on a single incident — engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person.
While this decision seems to be in keeping with the Court's precedent on this issue, I'm not sure that I agree with it, since the premise seems illogical to me. I think that the count is duplicitous since it arguably alleges that the defendant attempted to kill two people. He fired two shots, and each bullet could have hit its target, thus resulting in the death of two people. Thus, there should have been two counts of attempted murder charged, since the defendant's actions could have conceivably resulted in two deaths.
And, as far as I can see, it's a relatively simple fix--the prosecution simply has to charge the defendant with two counts of attempted murder, as opposed to only one count. I'm not sure why the Court seems to be following an illogical line of thought, when the burden on the prosecution to prevent this issue from occurring is minimal.
But, perhaps there's an aspect to this issue that I've not thought of. Do any current or ex-prosecutors (or criminal defense attorneys) out there care to clue me in if it appears that I'm totally off base?