OPINION Defendant Jose Rivera has been indicted for narcotics offenses, among them three charges of Criminal Possession of a Controlled Substance in the First Degree. These counts allege that defendant possessed over eight ounces of heroin, of fentanyl, and of acetyl fentanyl, respectively.1 Defendant now argues that these three weight-dependent possession counts are multiplicitous. In a police search of defendant’s residence, 18 packages containing heroin, fentanyl, and/or acetyl fentanyl were recovered.2 The only controlled substance in most of those packages was heroin. Seven packages held both heroin and fentanyl, and one contained both of those and acetyl fentanyl. The weight assigned to each package’s contents was its total weight. The amount thus includes not only the weight of whatever controlled substances were in the package, but also of the non-narcotic “cut” inside. That was proper. See People v. Ryan, 82 NY2d 497, 505 (1993). Defendant protests that, by charging him with not one but three counts of Criminal Possession of a Controlled Substance in the First Degree, the People have “double counted” the drugs in these packages — and indeed “triple counted” the drugs in one of them. Defendant’s view is that he committed one possessory offense (if any) — the possession of one or more packages, each of which contains a narcotic drug, that add up to a certain weight. And, defendant asserts, this one offense is charged three times. As will be noted, the success or failure of defendant’s multiplicity attack would have no significance to defendant or the People at any sentencing after a conviction for first-degree possession, whether on one count or three. But defendant’s claims impact on how a jury should be charged in this case. Thus, this opinion issues. A The most basic rules concerning duplicity and its opposite “twin,” multiplicity, are clear. But the proper way to apply the rules is in many situations murky. Trial judges must interpret the case law as reasonably as possible in those unclear situations, even in the absence of definitive guidelines. But at least the general principles can be stated. First, the rule against duplicity is in part statutory. A count in an indictment can charge only one offense. CPL Section 200.30 (1). Section 200.30 (2) adds that a count charges more than one offense and is duplicitous if two circumstances are present: if the count alleges a violation of a statute containing subdivisions without specifying which subdivision applies; and if the count alleges facts sufficient to support a conviction under more than one subdivision. See, e.g., People v. Lebron, 305 AD2d 799 (3rd Dept 2003); People v. Davis, 165 AD2d 610 (4th Dept 1991). As will be noted below, the case law goes well beyond this one example of what can make a count duplicitous. Perhaps most importantly for our purposes, a count is duplicitous if the alleged facts establish two offenses and each offense requires proof of a fact not necessary to the other. Blockburger v. United States, 284 US 299, 304 (1932); People v. Prescott, 66 NY2d 216, 221 (1985). Unsurprisingly, many of the multiplicity rules can be derived by holding the duplicity principles up to a mirror. The rule against multiplicity forbids charging the same offense in more than one count. People v. Alonzo, 16 NY3d 267, 269 (2011). An offense is charged in more than one count if every fact that must be proved for each count is necessary for the other. Compare Blockburger v. United States, supra, with, e.g., People v. Jean, 117 AD3d 875, 876 (2nd Dept 2014). While these basic principles by no means resolve all duplicity/multiplicity issues, the focus on statutory subdivisions in Section 200.30 (2) offers an introduction to a question of special significance here: how many counts should be used to charge a crime that can be committed in more than one way? The Legislature’s use of, or failure to use, subdivisions to specify different ways a crime can be committed is a vital clue. This judge recently addressed the matter in People v. Cruciani, 63 Misc3d 858, 862-63 (Sup Ct NY Co 2019). The bottom line: where the Legislature has chosen to define a crime in language with no formal subdivisions, in terms allowing completion of the crime in two or more ways, the crime should be charged in a single count. But if the manners in which the crime can be committed are presented in different subdivisions, those relevant to the People’s theory of the case must be alleged in separate counts. Thus, a defendant might be charged with bribe receiving on a theory that he “solicited, agreed to accept, or accepted” a bribe, three ways specified in the language in the Penal Law bribery statutes without separate subdivisions. See, e.g., Penal Law Section 200.12. That theory would properly be brought in one count. See People v. Charles, 61 NY2d 321 (1984).3 But if the defendant were accused of Robbery in the First Degree on theories that he employed a dangerous instrument and that he inflicted serious physical injury on a victim, those theories would fall under separate subdivisions of the statute and a single count would be duplicitous. See Penal Law Section 160.15 (1), (3). That principle will be important here. So too will be one concerning how many counts should be brought to charge a crime involving multiple victims. This latter question has no relation to whether a statute uses subdivisions to define a crime, but instead follows from the Blockburger rule. The general expectation is that where more than one person is victimized, a separate count must be filed as to each. After all, separate facts would have to be proved as to the imposition on each victim. Thus, if robbers enter a bodega and forcibly relieve three people of their property, separate counts are required. People v. Kindlon, 217 AD2d 793, 794-95 (3rd Dept 1995); People v. Branch, 73 AD2d 230, 234 (2nd Dept 1980). And the facts as to a victim would have to be proved to the jury before a guilty verdict could be returned on the count pertaining to that victim. But lest the law be too uncomplicated, ownership principles can affect that conclusion. Robbers may enter a bank branch and force three tellers to hand over bank property. The gravamen of the crime is the intrusion on the rights of the bank: the jurors should not be obliged to agree beyond a reasonable doubt whether the bank’s property was taken from one teller or another, but only that property was taken from the bank. Filing but one robbery count is therefore appropriate. People v. Branch, 73 AD2d at 232-33, supra. A similar conclusion follows in a related circumstance. The property of all three of our bodega victims may be possessed by the robbers when they are arrested. In this instance the gravamen of the crime is the possession of stolen property. The possession of the property stolen from multiple victims may therefore be charged in a single count. People v. Buckley, 75 NY2d 843 (1990). B That, at last, brings us to this case. Defendant is charged in three counts with Criminal Possession of a Controlled Substance in the First Degree in violation of Penal Law Section 220.21 (1). Each of the three counts alleges that he knowingly possessed “one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more.” In that regard, and as noted above, the weight element of most narcotics offenses turns not on the “pure” weight of a defendant’s controlled substance, but on the combined weight of the forbidden substance and any benign matter mixed with it. See People v. Ryan, 82 NY2d 497, 505 (1993). That is in fact evident from the quoted language, which is present not only in Section 220.21 but also in a number of similar statutes. The People’s theory is that defendant had simultaneous custody of packages containing three different narcotic drugs, each of which was present in one or more mixtures weighing more than the eight ounces. And the indictment charges a count for each of the three substances — heroin, fentanyl, and acetyl fentanyl. The defendant responds that the three counts are multiplicitous. As defendant sees it, the three substances are components of a large stash of narcotic drugs surpassing the required weight, and his alleged possession of this stash would be a single offense. For reasons touching on several of the principles addressed Part A, this court agrees with the defense position. To begin, if the question were one of first impression it could well be debated whether the simultaneous possession of two or more narcotic drugs is one crime, or more than one. If heroin and cocaine are recovered together, in separate packages or mixed together in one, different lab tests would provide facts as to whether each was present. The Blockburger test might suggest that separate counts be charged, as it generally does when a number of victims are robbed. On the other hand, the relevant statutes forbid possession of “one or more” mixtures containing a narcotic drug. The language suggests that the gravamen of the crime is the possession of quantities of forbidden substances, without regard to which type or types of drug are included. That suggests that one count is appropriate, as when money is taken from several bank tellers or when property stolen from several victims is recovered. And when the Legislature used simple references to possession of mixtures containing “a narcotic drug,” with neither subdivisions for each drug nor a signal that a departure from the normal duplicity rule of CPL Section 200.30 (2) was intended, that body presumably intended that possession be charged in one count. But, unfortunately for the People, the question is not one of first impression; the debate was resolved long ago. Many cases hold that simultaneous possession of different controlled substances must be charged in a single count. See, e.g., People v. Miller, 15 AD3d 265 (1st Dept 2005); People v. Martin, 153 AD2d 807 (1st Dept 1989).4 Sensibly, the People do not dispute this controlling authority. Instead, the People argue that weight is different. The cases just cited involve the simultaneous possession of two or more controlled substances, perhaps with the intent to sell them, regardless of their weight. The People contend that statutes with a weight element should not be treated the same way. In such cases, the People say, they can charge that a particular drug was present in mixtures of the necessary weight. And if a different drug is detected in separate mixtures also of the required weight, they can support another count charging possession of the second drug. Unfortunately for the People, that argument too is foreclosed by controlling authority. People v. Kalabakas, 183 AD3d 1133, 1135-37 (3rd Dept 2020); see also People v. Vega, 268 AD2d 686 (3rd Dept 2000). Indeed, the People’s effort to distinguish weight cases from simple possession cases lacks any logical underpinning. The Legislature recognized that the possession of larger quantities of narcotic drugs deserves more serious sanctions, and added weight elements to provide as much. But that creates no reason to think that the Legislature intended to transform the gravamen of the possession offenses. The statutes still forbid possession of “one or more” mixtures of prohibited substances, without regard to how many different substances are possessed. C It remains only to address what remedy should follow from the inappropriate inclusion of multiplicitous counts in the indictment. A common remedy is dismissal of all but one count, even the motion is made after trial and after possible prejudice may have followed from the jury’s consideration of superfluous charges. See, e.g., People v. Vangorden, 147 AD3d 1436, 1439 (4th Dept 2017); People v. Pruchnicki, 74 AD3d 1820, 1822 (4th Dept 2010). That remedy seems appropriate given the pretrial posture of this case. Moreover, the People’s grand jury evidence overwhelmingly established that defendant possessed many pounds of heroin alone. The court will therefore dismiss the counts based on the possession of fentanyl and acetyl fentanyl, but not the count based on the possession of heroin. The trial court can consider to what extent the jury should hear proof that the other two drugs were present in the “one or more” mixtures of a controlled substance allegedly contained in defendant’s packages. This opinion will conclude with two footnotes as to the outcome. First, and ironically, the People’s position in future cases may be stronger for their having been defeated in this motion litigation. The People may find themselves in the next case facing a weight threshold which could be crossed only if the possession of two or more different controlled substances can properly be considered as proof of a single count — in particular, where the substances are separately packaged. That apparently was the situation in, for example, People v. Kalabakas, supra. Second, the People are not meaningfully damaged even in this case. Should the jury have convicted defendant of three first-degree possession counts, the possession still would have been a single act. See People v. Dean, 8 NY3d 929 (2007) (possession of child pornography); People v. Smith, 167 AD3d 944 (2nd Dept 2018) (possession of three guns). Only concurrent sentences could have been imposed, and a sentence after conviction on a single count can be as long. Counts 73 and 74 are dismissed. Dated: December 28, 2020
