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The People &c., Respondent, v. Fabian Greene, Appellant.

People v. Fabian Greene

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Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur, Chief Judge Wilson in a concurring opinion.

MEMORANDUM The order of the Appellate Division should be modified by vacating the conviction for count 3 and dismissing that count of the indictment and, as so modified, affirmed. A multiplicitous indictment “creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than [they] actually committed” (People v. Alonzo, 16 NY3d 267, 269 [2011]). Even when the multiplicitous convictions do not increase the defendant’s sentence, the stigma of impermissible convictions endures and must be remedied. Thus, when a defendant is convicted of multiplicitous charges, the proper remedy is vacatur of all but one of the multiplicitous convictions and dismissal of those counts of the indictment, regardless of whether that corrective action has any effect on the defendant’s sentence. Here, there is no dispute regarding the Appellate Division’s conclusion that the two counts of perjury of which defendant was ultimately convicted were multiplicitous. As the People concede, the proper remedy is therefore dismissal of one of the convictions. Defendant’s argument that the trial court permitted a witness to impermissibly instruct the jury on the law concerning materiality does not warrant reversal of his other convictions. Defendant’s remaining contentions are unpreserved for appellate review.

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