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Duplicity and Multiplicity Compared
by Gary Muldoon
Muldoon & Getz
Rochester, New York

Duplicity and muliplicity are converse errors of pleading. With duplicity, more than one crime is included in one count. With multiplicity, several counts are alleged, but there is only one crime. "Prosecutors and grand juries must steer between the evils of ‘duplicity’ and ‘multiplicity.’" People v Alonzo, 16 NY3d 267 (2011).

Duplicitous accusatory instrument

Duplicitousness is recognized by statute. CPL 200.30 is entitled "Indictment: duplicitous counts prohibited." Subdivision one states the rule simply: "Each count of an indictment may charge one offense only." The rule against duplicitous counts applies to informations as well as indictments. People v Evangelista, 1 Misc 3d 873 (NY City Crim Ct 2003).

A bill of particulars may clarify which crimes are alleged and thus cure a facially duplicitous indictment. People v Drayton, 198 AD2d 770 (4th Dept 1993). Jury instructions may also cure duplicity. People v Caballero, 23 AD3d 1031 (4th Dept 2005).

The statutory prohibition against duplicitous counts serves several purposes, one of which is to guarantee pretrial notice of charges and thereby permit preparation of an adequate defense. People v Beauchamp, 74 NY2d 639 (1989).

Another function of the prohibition is to guarantee a unanimous verdict. Jurors cannot vote to convict a defendant on a given count based on different offenses. See People v Bauman, 12 NY3d 153 (2009) (11 incidents over an eight-month period, assault charge held duplicitous).

A third function of the prohibition on duplicitous counts is to provide assurance against double jeopardy. An indictment must allege with sufficient specificity to enable the defendant, once convicted, to raise double jeopardy as a bar against subsequent prosecutions. People v Keindl, 68 NY2d 410 (1986).

When an indictment count charges only one offense, it may be rendered duplicitous by trial testimony of more than one offense. People v McNab, 167 AD2d 858 (4th Dept 1990). A challenge to "facial" duplicity must be asserted at the trial court to be preserved, while "testimonial" duplicity is a mode of proceedings error that requires no preservation. People v Filer, 97 AD3d 1095 (4th Dept 2012); cf. People v Becoats, 17 NY3d 643).

Continuing offenses

The statutory bar on duplicitous counts may be inapposite where the offense charged is by its nature a "continuing" offense. Examples of continuing crimes include Endangering the Welfare of a Child and Aggravated Harassment, as well as Larceny, where one victim is involved. An indictment for Scheme to Defraud is not duplicitous where there is a unitary scheme to defraud. People v First Meridian Planning Corp., 86 NY2d 608 (1995).


"Multiplicity," in contrast, is not recognized by statute, but by caselaw, including the 2011 Court of Appeals decision in People v Alonzo. Multiplicity bars charging one offense in several counts.

Generally, a defendant who, in an uninterrupted course of conduct directed at a single victim, violates a single provision of law, commits but a single crime. In People v Alonzo, the grand jury evidence showed that the defendant groped several parts of the victim’s body. Charging one count of Sexual Abuse was appropriate. But a multiplicitous indictment creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed. People v Alonzo, supra.

Where a defendant committed one entry with multiple persons injured, he could be convicted of only count of burglary. People v Rodrigues, 74 AD3d 1818 (4th Dept 2010).

A jury charge that is essentially identical to another may be multiplicitous. People v Smalls, 81 AD3d 860 (2d Dept 2011).

Judge Robert Smith in Alonzo recognized the difficulty in this area: "There is no infallible formula for deciding how many particular crimes were committed in a particular sequence of events."

© 2012 by Gary Muldoon