People v. Fernandez

In People v. Fernandez (173 Misc. 2d 938 [Sup Ct, Kings County 1997, Gerges, J.]) the court concluded that three counts charging attempted murder in the first degree were multiplicitous. In Fernandez, the defendant was accused of having shot his wife and then having shot their three children. All of the victims survived. The defendant was indicted and charged, inter alia, with three counts of attempted murder in the first degree for attempting to kill his wife and children as part of the same criminal transaction (Penal Law 110.00, 125.27 [1] [a] [viii]). Each count named the defendant's wife as the "principal" intended deceased; each named a different child as the "secondary" intended deceased. The court reasoned that the statute's use of the words "person or persons" indicated that murder in the first degree is "one continuing crime, beginning with the killing of the first person and continuing until the last person is killed" (173 Misc. 2d at 947). The court held that, when distinct acts together constitute but a single continuing crime, counts that separately charge those distinct acts are multiplicitous. Thus, the court directed either that the prosecution elect one count on which to proceed or that the three counts be consolidated.