OPINION Defendant Cruciani, a very highly regarded doctor, has been indicted for sexually abusing a number of his patients. Two counts charge defendant with Predatory Sexual Assault (Penal Law 130.95 [2]). Defendant moves to dismiss those counts, counts 1 and 4 of the indictment. One of the two counts will be dismissed.AThe circumstances underlying defendant’s motion can be quickly stated. First, a defendant commits Predatory Sexual Assault when he or she (1) commits Rape in the First Degree, Criminal Sexual Act in the First Degree, Aggravated Sexual Abuse in the First Degree, or Course of Sexual Conduct against a Child in the First Degree, and also (2) “has engaged in” conduct constituting one of those same four crimes with another person.Here, the grand jury heard proof that defendant committed acts constituting Criminal Sexual Act in the First Degree on or about March 4, 2013, against a woman who will here be called “CW2.” The grand jury also heard proof that between on or about January 10, 2013, and on or about April 25, 2013, defendant committed acts constituting Rape in the First Degree against a woman who will be called “CW1.” Count 1 of the indictment charges defendant with Predatory Sexual Assault for forcibly raping CW1 and committing Criminal Sexual Act in the First Degree against CW2. Count 4 of the indictment charges defendant with Predatory Sexual Assault for forcibly sodomizing CW2 and committing Rape in the First Degree against CW1.Defendant now asks that both counts be dismissed. As he notes, an element of Predatory Sexual Assault is that the defendant commit one of the four crimes named in the statute. Defendant asserts that this crime must be committed after acts against a different victim that also constitute one of the four relevant crimes. Among the four crimes are the two involved here. The indictment alleges that the crime against CW2 was committed on or about a specified date — March 4, 2013. The People allege that the crime against CW1 was committed within a relatively extended range of dates: between on or about January 10, 2013, and on or about April 25, 2013. On the People’s theory it is not clear which was the second crime. Defendant concludes from this that neither count of Predatory Sexual Assault can be proved, nor perforce was either proved in the grand jury. The People respond that crimes against two victims can support two separate counts of Predatory Sexual Assault, regardless of the order in which the victims were attacked. That is, the People assert that there is no particular “temporal” sequence required by Penal Law 130.95 (2), as to the two sexual assaults. The People thus suggest in effect that a violation of the same two-crime statute can be charged twice.Both parties are wrong. The tenses used in the statute show that the People are incorrect. Section 130.95 (2) provides that a defendant is guilty of Predatory Sexual Assault when he “commits” one of the four designated crimes and “has engaged” in conduct constituting one of those four crimes against another person. The language makes the gravamen of the crime that the defendant committed the relatively recent assault. The older conduct is an aggravating circumstance raising what would be a class B felony to a class A-II felony — one carrying a sentence of at least 10 years to life, up to a possible 25 years to life. In effect, the statute treats the aggravator as if it were a prior “predicate” felony, but with only a requirement that the aggravating crime have been committed first and not a requirement that a conviction for the earlier crime have been obtained before the second was committed. Nor is there any limit on the length of the period that may pass between the assaults.The case law on Section 130.95(2) is sparse. But what there is supports this view. In People v. Lancaster, 143 AD3d 1046, 1048 (3d Dept 2016), the court used these words in approving a jury instruction:County Court’s instructions made clear that the jury had to preliminarily find defendant guilty of one of the enumerated crimes before finding him guilty of one of the same crimes against a separate, subsequent1 victim, thus addressing the inherent “temporal implications” of the predatory sexual assault statute.In People v. Hairston, 35 Misc3d 830, 838 (Sup Ct Kings Co 2012), Justice Cyrulnik was more explicit:It should be noted that the temporal implications of the language of Penal Law §130.95(2) must be recognized when charging the crime. The section specifically requires that, at the time of the underlying violent sexual offense, the defendant “has engaged” in the conduct constituting the aggravating factor. This means that the aggravating factor must precede the underlying offense. Consequently, the People correctly dismissed counts one through four of the indictment, due to the fact that the May 14, 2011 offenses could not act as the aggravating factors for the underlying offenses that took place on May 2, 2011. However, nothing in the plain language of the statute prevents the People from charging defendant with predatory sexual assault where the underlying violent sexual offenses took place on May 14, 2011 and the offenses constituting the aggravating factors took place on May 2, 2011.If all the above is correct, counts 1 and 4 cannot both stand. If defendant committed Predatory Sexual Assault, he did it once — with an assault on CW2 after an attack on CW1, or with an attack on CW1 after an assault on CW2. The earlier of the two assaults cannot support a second count of Predatory Sexual Assault, because the earlier assault was not committed after defendant “ha[d] engaged in” the later assault. The court concludes that defendant is wrongly charged with two counts of Predatory Sexual Assault. The question then becomes what remedy is due defendant. The court believes that he is entitled to the dismissal of either count 1 or count 4, but not both.Here the language of the two counts must be noted. Count 1 asserts that defendant forcibly raped CW1 and forcibly sodomized CW2. Count 4 charges that defendant forcibly sodomized CW2 and forcibly raped CW1. In other words, both counts allege the same conduct. Neither count alleges which sex crime was first. The counts thus charge the same crime twice, and are multiplicitous. See generally People v. Alonzo, 16 NY3d 267 (2011). One count must be dismissed.BThe People’s position therefore is incorrect: both counts cannot stand. It remains to explain why defendant is wrong to argue that both must be dismissed. Normally, the choice of which count to dismiss would be easy. The court would dismiss the count that wrongly stated that the earlier crime constituted the gravamen of the charge. The complication in this case is that it is not clear which alleged victim was assaulted first, and which second. It therefore cannot be said which assault is the gravamen of the crime, and which, the earlier crime, was the aggravator.Unfortunately for defendant, that does not entitle him to dismissal of both counts, and effective immunity from any charge of Predatory Sexual Assault. The court should quickly state expressly what seems obvious: one of the assaults allegedly committed by defendant preceded the second, even if it is not clear which was the first. Defendant did not rape CW1 at the same time that he sodomized CW2. Even if such a scenario is technically possible, its prospect is far too remote to matter, as to the sufficiency of grand jury evidence. Here the testimony of the two complainants about the assaults left no doubt on that score. Their sessions with defendant were private. And the nature of the alleged oral Criminal Sexual Act made that, and the crime of rape, in this case literally impossible for defendant to commit simultaneously. Indeed, although the date of the rape of CW2 was uncertain, it is alleged to have occurred on one of five dates specified in the proof. March 4, 2013 was not one of those dates.When a crime can be committed in various ways, a count charging the crime often need not specify which way the defendant committed it. Nor must the jury agree on the manner in which it was committed. See, e.g., People v. Mateo, 2 NY3d 383, 406-08 (2004); People v. Kaid, 43 AD3d 1077 (2d Dept 2007). Thus, in People v. Charles, 61 NY2d 321 (1984), the defendant was properly convicted of bribe receiving on a theory that he “solicited, agreed to accept, or accepted” a bribe, even though the indictment had charged that he had done all three of those things. Three counts separately charging the various theories would have been multiplicitous. See People v. Wells, 7 NY3d 51, 56-57 (2006); People v. Kaid, supra.There are many other crimes, of course, for which the People must plead and prove a specific theory. For first degree robbery, the People must charge a defendant in a particular count either with the use of a deadly weapon or with the use or threatened use of a dangerous instrument, but not both. See Penal Law 165.15 (2), (3); CJI 2d [NY] sections 165.15 (2) and (3). A second degree robbery count must charge the defendant either with acting with one or more accomplices or with inflicting physical injury, but not both. Penal Law 165.10 (1), (2) (a); CJI 2d [NY] sections 165.10 (1) and 165.10 (2) (a). In these instances a count which contains two theories, allowing a verdict that was not unanimous as to which of the two was proved, would be duplicitous. See generally People v. Keindl, 68 NY2d 410, 417 (1986).What separates the two categories is legislative intent, often plainly evinced by a simplicity in statutory drafting. For bribe receiving, the theories of soliciting, agreeing to accept, or accepting the bribe are expressed in a single, undivided subsection of the statutes defining the degrees of burglary. In the first degree robbery statute, on the other hand, the “deadly weapon” and “dangerous instrument” theories are stated in separate subdivisions. How the crimes must be pleaded and how many counts should be pleaded can turn on that simple distinction. See CPL 200.30 (2).The statute here at issue states that a defendant commits Predatory Sexual Offense whenhe or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:***He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons….The four offenses which constitute the graveman of the crime against the first victim are listed together. The charge could be brought where more than one of the four was committed against that victim — and a conviction may result even if the jurors do not agree as to which was committed. To charge more than one count, on a theory that two or more “gravamen” crimes were committed, would require a conclusion that the counts were multiplicitous. Similarly, the four offenses which might have been committed against the earlier victim are listed together, and the charge could be brought in one count where more than one of the offenses was committed against the earlier victim. The jurors again need not agree on which of the aggravating crimes was committed. To charge more than one count, each based on a different aggravating offense, would be multiplicitous.CIt follows that count 1 and count 4 both were worded adequately. Count 1 charged thatThe defendant, in the County of New York, during the period from on or about January 10, 2013 to on or about April 25, 2013, engaged in sexual intercourse by forcible compulsion with a first person known to the Grand Jury, and the defendant engaged in conduct constituting the crime of Criminal Sexual Act in the First Degree against a second person known to the Grand Jury.Count 4 charged thatThe defendant, in the County of New York, on or about March 4, 2013, engaged in oral sexual conduct, to wit, contact between defendant’s penis and the mouth of a second person known to the Grand Jury, by forcible compulsion, and the defendant engaged in conduct constituting the crime of Rape in the First Degree against a first person known to the Grand Jury.Each count adequately alleges the crime of Predatory Sexual Assault. Each count alleges that the defendant committed a specified crime against one victim, and a specified crime against the other. Neither count alleges which victim was attacked first. Each is consistent with the theory that both victims were attacked. Neither count would require a trial jury to decide which victim was attacked first.A potential complication remains as to the grand jury charge. The People sometimes may be obliged to prove what the People plead, and what the grand jury was charged. But see, e.g., People v. Charles, supra. If the People charge that a defendant first assaulted a specified victim, and then assaulted a second specified victim, they arguably would have to prove precisely that. If so, and they proved that the first alleged victim was in fact the second to be attacked, their proof would fail to support the charge. It would be the same as charging specifically and solely that a defendant committed burglary by entering a building unlawfully, and proving instead only that he remained unlawfully in the building.But the People did not require the grand jury to decide which victim was attacked first, and neither count specifies which was attacked first. The grand jury was told that one count involved a Criminal Sexual Act in the First Degree against CW2 on about March 4, 2013, “in conjunction with” a Rape in the First Degree of CW1 committed from on or about January 10, 2013 to April 25, 2013. The other count involved Rape in the First Degree, “in conjunction with” defendant’s actions against CW1.DDefendant is accordingly entitled to the dismissal of one, and only one, count. As both counts charge the same crime based on the same facts, it does not matter which count will go. The court chooses to dismiss count 4.The People invite the court to reduce whichever count is to be dismissed to a lesser included offense — under count 4, presumably Criminal Sexual Act in the First Degree. But that crime is in fact not a lesser included offense of Predatory Sexual Assault. Given that there are numerous crimes that may support a Predatory Sexual Assault charge, it is very possible to commit that crime without committing Criminal Sexual Act in the First Degree. The law on the point is clear: a crime is not a lesser included offense simply because in a particular case the proof makes out the elements of the lesser offense. It must be impossible to commit the greater crime without committing the lesser on any set of facts. See People v. Glover, 57 NY2d 61, 63-64 (1982). Count 4 must be dismissed, and not reduced to a lesser charge.***Defendant was charged twice with one crime. Count 4 is dismissed. The evidence is sufficient to support count 1, and that count will not be dismissed.
