        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1052
KA 12-01621
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT DUKES, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (MEGAN P. DADD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered June 19, 2012. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree, rape in the first degree (three counts),
criminal sexual act in the first degree and endangering the welfare of
a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of criminal sexual act in the first degree and rape in the
first degree under counts four and six of the indictment and
dismissing those counts without prejudice to the People to re-present
any appropriate charges under those counts of the indictment to
another grand jury, and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [a]), criminal sexual act in
the first degree (§ 130.50 [1]), and three counts of rape in the first
degree (§ 130.35 [1]), defendant contends that County Court erred in
denying his request to appoint new counsel for him at trial. Although
defendant requested a new attorney several weeks before trial, the
record demonstrates that, after an extensive colloquy with the court
and a private conference with assigned counsel, defendant informed the
court that his attorney answered his questions and that he was
satisfied with his attorney’s answers. When asked by the court
whether he wanted his attorney to continue to represent him, defendant
answered, “Yes, sir,” and defendant did not thereafter request new
counsel. Under the circumstances, we conclude that defendant withdrew
his request for assignment of new counsel and thereby waived his
present contention (see People v Jones, 79 AD3d 1665, 1665).
                                 -2-                          1052
                                                         KA 12-01621

     We agree with defendant, however, that counts four and six of the
indictment were rendered duplicitous by the victim’s trial testimony.
“Even if a count facially charges one criminal act, that count is
duplicitous if the evidence makes plain that multiple criminal acts
occurred during the relevant time period, rendering it nearly
impossible to determine the particular act upon which the jury reached
its verdict” (People v Dalton, 27 AD3d 779, 781, lv denied 7 NY3d 754,
reconsideration denied 7 NY3d 811; see People v Casiano, 117 AD3d
1507, 1510; People v Foote, 251 AD2d 346, 346). Here, count four
charged criminal sexual act in the first degree regarding an alleged
instance in which defendant forcibly compelled the victim to perform
oral sex on him during the summer of 2010, while count six, charging
rape in the first degree, related to an incident in the summer of 2010
during which defendant had sexual intercourse with the victim by
forcible compulsion. At trial, however, the victim testified that
defendant regularly and repeatedly forced her to engage in sexual
intercourse with him during the summer of 2010, and she did not
testify about any one specific incident. She offered similarly
general testimony about alleged instances of oral sexual conduct
during the summer of 2010.

     Because each act of alleged intercourse and oral sexual conduct
constitutes “a separate and distinct offense” (People v Russell, 116
AD3d 1090 [internal quotation marks omitted]; see People v Beauchamp,
74 NY2d 639, 640), the victim’s testimony that numerous such acts
occurred during the summer of 2010 rendered counts four and six
duplicitous, inasmuch as it is impossible to determine whether the
jury reached a unanimous verdict on those counts. It is also
impossible to determine whether defendant was convicted of an act for
which he was not indicted (see People v McNab, 167 AD2d 858, 858).
Although defendant did not preserve for our review his contention that
counts four and six were rendered duplicitous at trial, preservation
is not required because the “right of an accused to be tried and
convicted of only those crimes and upon only those theories charged in
the indictment is fundamental and nonwaivable . . . , as is the right
to a unanimous verdict” (People v Boykins, 85 AD3d 1554, 1555, lv
denied 17 NY3d 814 [internal quotation marks omitted]; see People v
Filer, 97 AD3d 1095, 1096, lv denied 19 NY3d 1025). Furthermore,
where, as here, there was no testimony of a specific incident
constituting the indicted offense (cf. People v Spencer, 119 AD3d
1411, 1412-1413, lv denied 24 NY3d 965), but instead only testimony of
a general nature that several incidents occurred during the specified
time frame, we are unable to determine whether defendant’s protection
against double jeopardy would be violated by a second prosecution (see
generally People v Gause, 19 NY3d 390, 394-395). We therefore modify
the judgment accordingly, and we grant the People leave to re-present
appropriate charges under counts four and six, if any, to another
grand jury.

     We have reviewed defendant’s remaining contentions and conclude
that none requires reversal or further modification of the judgment.
Entered: November 21, 2014                      Frances E. Cafarell
                                                Clerk of the Court
