Opinion
2017KN012050
06-12-2017
The People of the State of New York v. Michael J. Manuel, Defendant.
For Defendant: Molly Booth, Brooklyn Defender Services 177 Livingston Street Brooklyn, NY 11201 For the People: Eric Gonzalez, District Attorney, Kings County by Artur Jagielski Esq., Assistant District Attorney, Brooklyn, of Counsel
For Defendant: Molly Booth, Brooklyn Defender Services 177 Livingston Street Brooklyn, NY 11201 For the People: Eric Gonzalez, District Attorney, Kings County by Artur Jagielski Esq., Assistant District Attorney, Brooklyn, of Counsel Donald Leo, J.
The defendant who is charged with two counts of Forcible Touching (Penal Law (PL) § 130.52[1]), two counts of Sexual Abuse in the Third Degree (PL § 130.55), two counts of Harassment in the Second Degree (PL § 240.26[1]), and three counts of Endangering the Welfare of a Child (PL § 260.10[1]) seeks dismissal of the Information as Facially Insufficient. The motion is decided as follows: THE RELEVANT FACTS AND CIRCUMSTANCES
On February 26, 2017, the defendant was arraigned and the People indicated that they were not ready because they were awaiting the supporting deposition of the complaining witness. The court adjourned the matter until March 3, 2017 for conversion.
Off-calendar, on March 2, 2017, the People served and filed a Statement of Readiness (SOR) together with a Superseding Information (SSI) and the supporting deposition of the complaining witness. The SSI provided in relevant part that:
(TPO 1) On or about (1) and between January 1, 2016 at 12:01 a.m. and February 29, 2016 at 11:59 p.m. at 70 Remsen Street, in the County of Kings, State of New York, the defendant committed the offenses of Forcible Touching (PL § 130.52[1]), Sexual Abuse in the Third Degree (PL § 130.55), Harassment in the Second Degree (PL § 240.26[1]), and Endangering the Welfare of a Child (PL § 260.10[1]) in that:
Deponent [Assistant District Attorney Artur Jagielski] is informed by Zoe Heller that, at the first on and about and between time and place, the defendant grabbed the informant about the buttocks and touch the informant's vagina over the clothing and without the informant's permission.
The deponent is further informed by the informant that the above-described actions caused the informant to become alarmed and annoyed.
(TPO 2) On or about (2) and between August 1, 2016 at 12:01 a.m. and September 7, 2016 at 11:59 p.m. at 70 Remsen Street, in the County of Kings, State of New York, the defendant committed the offenses of Forcible Touching (PL § 130.52[1]), Sexual Abuse in the Third Degree (PL § 130.55), Harassment in the Second Degree (PL § 240.26[1]), and Endangering the Welfare of a Child (PL § 260.10[1]) in that:
The deponent is informed by Zoe Heller that, at the second on and about and between time and place, the defendant grabbed the informant about the buttocks over the clothing and without the informant's consent.
The deponent is further informed by the informant that the above described actions caused the informant to become alarmed and annoyed.
(TPO 3) On or about (3) and between February 16, 2013 at 12:01 a.m. and February 25, 2017 at 11:59 p.m. at 70 Remsen Street, in the County of Kings, State of New York, the defendant committed the offenses of Endangering the Welfare of a Child (PL § 260.10[1]) in that:
The deponent is further informed by Zoe Heller that, at the third on and about and between time and place, the defendant showed the informant explicit materials, specifically an image of a naked female tied up with ropes and a video image of a naked male and female, and that the defendant told the informant to remove the informant's shirt and pants so that the defendant could look at the informant naked and viewed the informant's exposed breasts on multiple occasions, and that the defendant looked at the informant for periods of time on numerous occasions while the informant was naked and taking a shower.
The deponent is further informed by the informant that the informant's date of birth is 07/30/2001.
Off-calendar, on May 8, 2017, the defendant served and filed the instant motion. On the ensuing court date, May 11, 2017, the court adjourned the matter until June 13, 2017 for decision on the defendant's motion. Off-calendar, on June 2, 2017, the People served and filed opposition papers.
I. Facial Sufficiency of the SSI
An information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §§ 100.40(1), 100.15. Reasonable cause exists where there are sufficient facts set forth in the accusatory instrument which would convince a person of ordinary intelligence, judgment and experience that such offenses were reasonably likely to have been committed and that such offenses were committed by the defendant. CPL § 70.10(2). Provided that the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, the allegations should not be given an overly restrictive or technical reading. People v Casey, 95 NY2d 354, 360 (2000). Although the requirement is not the same as the People's burden at trial to prove every element of the offenses charged beyond a reasonable doubt, the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action requiring dismissal. See People v Henderson, 92 NY2d 677, 680 [1999]); People v Alejandro, 70 NY2d 133, 137 (1987); People v Kalin, 12 NY3d 225 (2009).
The defendant argues that the SSI is facially insufficient because the time periods in which the conduct is alleged to occur are too broad for the defendant to prepare a defense. The court does not agree.
An accusatory instrument must provide sufficient notice regarding the nature of the charges, the manner, time and place of the conduct underlying the accusations to allow the defendant to prepare an adequate defense. People v Morris, 61 NY2d 290 (1984); CPL § 200.50(6). The accusatory instrument must allege the crimes charged with sufficient specificity to protect the defendant from double jeopardy. Id. However, there is no requirement that the accusatory instrument give an "exact date and time" and CPL 200.50(6) allows for "on or about" a designated date or during a designated period of time. "When time is not an essential element of an offense, the accusatory instrument may allege the time in approximate terms." People v Watt, 81 NY2d 772, 774 (1993). On a motion to dismiss for failure to sufficiently detail when a crime allegedly occurred, the test for adequacy is one of good faith and the court should consider the following factors: (1) the length of time span provided by the People and the knowledge the People have or should have of the exact date(s) of the crime, (2) the age and intelligence of the victim and other witnesses, (3) the surrounding circumstances, and (4) the nature of the offense, including whether it is likely to occur at a specific time or likely to be discovered immediately. People v Morris, 61 NY2d at 293; People v Watt, 81 NY2d at 774. Determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant must be made on a case by case basis by considering all relevant circumstances. People v Sedlock, 8 NY3d 535, 539 (2007) citing People v Morris, 61 NY2d at 295.
A single act crime is when a crime is made out by the commission of one act. A continuing crime is when a crime is made out by either one act or multiple acts over a period of time. The Second Department has held that a period of two months during which a single act crime was charged was "reasonably specific and provided the defendant with adequate notice." People v Case, 29 AD3d 706, 707 (2d Dept., 2006); see also People v Williams, 280 AD2d 563 (2D Dept., 2001). In the instant case, the alleged time period with respect to TPO 1 is from January 1, 2016 to February 29, 2016 (i.e., approximately two months) where the defendant allegedly grabbed the complainant's buttocks and vagina over the clothing without the complainant's consent. The alleged time period with respect to TPO 2 is from August 1, 2016 to September 7, 2016 (i.e. approximately one month) where the defendant allegedly grabbed the complainant's buttock over the clothing without the complainant's consent. The People state in their opposition papers that "after meeting with the complainant on multiple occasions the People were unable to narrow down the time frame." People's Affirmation in Response to Motion to Dismiss, pg. 6. While the complainant was approximately 15 years old at the time of the accusations, the surrounding circumstances that the defendant is the complainant's stepfather, the allegations are sexual in nature and the defendant and complainant live in the same home make it difficult to provide a specific date or narrow a time frame. There has been no showing of bad faith by the People and the time periods with respect to TPO 1 and TPO 2 are reasonably specific.
With respect to TPO 3, the defendant is charged with Endangering the Welfare of a Child (PL § 260.10[1]) and the defendant is alleged to have committed various acts which took place over a four-year time period. "Endangering the Welfare of a Child is a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time." People v Keindl, 68 NY2d at 422; see e.g., Cowley v People, 83 NY 464 (1881). When Endangering the Welfare of a Child is charged as a continuing offense, the dates do not need to be as specific as required when it is a single act. People v Mobarhan, 49 Misc 3d 1214(A) (Crim. Ct, Queens County, 2015). Courts have held that lengthy periods of time for a continuing offense sustain the specificity requirement. See People v Keindl, 68 NY2d 410 (1986) (the court held that a two-year period where the defendant was accused of Endangering the Welfare of a Child was sufficiently specific); People v Furlong, 4 AD3d 839 (4th Dept. 2004) (the court held that approximately six-year period where the defendant was accused of Endangering the Welfare of a Child was sufficiently specific). In the instant matter, the defendant is alleged to have showed the complainant explicit video materials, told the complainant to take off the complainant's clothing and viewed the complainant's exposed breasts on multiple occasions and looked at the complainant naked while the complainant was showering on numerous occasions. Taking these allegations in a light most favorable to the People, the court finds the factual allegations support all elements of this offense for pleading purposes and holds that the four-year time period is reasonably specific and not too broad. Accordingly, the defendant's motion to dismiss the SSI as facially insufficient is denied.
II. Multiplicitous Charges
The defendant argues that the accusatory instrument is multiplicitous because the accusatory instrument charges the defendant with multiple counts of Endangering the Welfare of a Child over the same period of time. Specifically, the defendant argues that the accusatory instrument alleges that the defendant endangered the welfare of a child, the complaining witness, from February 2013 through February 2017 (i.e., TPO 3) and also from January 1, 2016 through February 29, 2016 (i.e., TPO 1) and from August 1, 2016 through September 7, 2016 (i.e., TPO 2), both of which time periods overlap with TPO 3 and therefore the charges are multiplicitous. The court does not agree.
An accusatory instrument is multiplicitous "when a single offense is charged in more than one count." People v Alonzo, 16 NY3d 267, 269 (2011). An accusatory instrument "cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct." Peopel v Quinones, 8 AD3d 589 (2d Dept., 2004).
In the instant case, with respect to TPO 1, the defendant is charged with Endangering the Welfare of a Child and allegedly grabbed the buttocks and touched the vagina of the complainant. With respect to TPO 2, the defendant is charged with Endangering the Welfare of a Child and allegedly grabbed the buttocks of the complainant. With respect to TPO 3, the defendant is charged with Endangering the Welfare of a Child and allegedly showed the complainant explicit video materials, told the complainant to take off the complainant's clothing and viewed the complainant's exposed breasts on multiple occasions and looked at the complainant naked while the complainant was showering on numerous occasions. Each count of Endangering the Welfare of a Child relies on a separate and distinct act. Each count constitutes a single offense relying on different factual allegations and not a continuing course of conduct. The court finds that the accusatory instrument is not multiplicitous with respect the charge of Endangering the Welfare of a Child and therefore the defendant's motion to dismiss on the grounds of multiplicitous is denied.
The foregoing constitutes the opinion, decision, and order of the Court. Dated: June 12, 2017 Brooklyn, New York DONALD LEO J.C.C.