Opinion
No. 2013KN030198.
03-02-2015
The PEOPLE of the State of New York, v. Baby OBAS.
District Attorney, Kenneth P. Thompson by A.D.A. Amanda Cully, Brooklyn, for The People. John T. Carlton, Esq., New York, for defendant.
District Attorney, Kenneth P. Thompson by A.D.A. Amanda Cully, Brooklyn, for The People.
John T. Carlton, Esq., New York, for defendant.
Opinion
CURTIS FARBER, J.
On December 2, 2014, defendant filed a motion for relief pursuant to CPL 290.10 and CPL 330.30. The People oppose the motion in a response filed on January 16, 2015; and defendant filed a reply on February 10, 2015.
On April 30, 2013, a misdemeanor complaint with supporting depositions were filed. The information charged defendant with two counts each of Assault in the Third Degree (Penal Law § 120.00[1] ), Menacing the Second Degree (Penal Law § 120.14[1] ), Endangering the Welfare of a Child (Penal Law § 260.10 [1 ] ), Attempted Assault in the Third Degree (Penal Law § 110/120.00 [1] ), Menacing in the Third Degree (120.15), Harassment in the Second Degree (Penal Law § 240.26[1] ); and one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2] ). The information specified that those offenses occurred “on or about April 19, 2013 at approximately 03:00 pm at 766 Ocean Avenue in the County of Kings.” The People alleged that defendant hit her eleven-year old daughter about the face; and that defendant hit her seven-year old daughter with a belt on her legs, arms, and face.
On September 17, 2014, the People served and filed a prosecutor's information charging defendant with two counts each of Attempted Assault in the Third Degree (Penal Law § 110/120.00 [1] ), Menacing the Second Degree (Penal Law § 120.14[1] ), Attempted Endangering the Welfare of a Child (Penal Law § 110/260.10 [1] ), Menacing in the Third Degree (120.15), Harassment in the Second Degree (Penal Law § 240.26[1] ); and one count of Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 110/265.01 [2] ). The prosecutor's information charged that the offenses took place “on or about April 19, 2013, in the County of Kings,” without further details of time and place of occurrence. At trial, the theory of the People's case was that defendant caused physical injury to her two daughters. In his opening statement, defense counsel suggested that the alleged assaults never occurred, rather, that the children's grandmother encouraged the informants to falsely accuse their mother as a means of preventing her from testifying against their father in a pending unrelated case. Defendant testified at the non-jury trial, and denied committing all of the offenses. After summations, this Court found defendant guilty of all counts.
Prosecutor's opening statement, September 19, 2014 transcript, pages 5–7.
Defense counsel's opening statement, September 19, 2014 transcript, pages 8–11.
Defendant's request for an order setting aside the verdict, and dismissing the prosecutor's information, because of a variance in time between the time of day specified in the first accusatory instrument and the proof at trial, is without merit. The first accusatory instrument alleged that the offenses occurred on April 19, 2013, at approximately 3:00 p.m. However, testimony at trial established that defendant assaulted one of the children at approximately 6:30 p.m.; and that the other child was assaulted after 8:15 p.m., on the same day. Nevertheless, the variance did not deprive defendant of a fair trial. Although defense counsel objected to the variance and moved for a mistrial, he was unable to articulate how the variance prejudiced defendant. Defense counsel stated that there would be no alibi defense as to the newly discovered time lines. Additionally, defense counsel declined the Court's offers for a continuance, and to recall witnesses who had already testified.
September 19, 2014 transcript, pages 103–104.
September 19, 2014 transcript, page 111.
September 23, 2014 transcript, page 12; see September 19, 2014 transcript, pages 78–79; pages 125–126; and page 130.
September 23, 2014 transcript, page 10.
September 19, 2014 transcript, page 132; September 23, 2014 transcript, pages 10–11.
See September 23, 2014 transcript, page 4; pages 11–12.
Where, as here, there is a distinct variance between a time specified in a misdemeanor complaint and the proof at trial, a conviction need not be set aside when the defense consists of a categorical denial that the incident even occurred (see People v. Warren, 100 A.D.3d 1399, 1402, 954 N.Y.S.2d 289 [4th Dept 2012] ). This is especially true when, as in this case, the variance did not hamper the ability of defendant to present a defense, and the discrepancies are excusable (id.; People v. Holman, 249 A.D.2d 947, 947 ; cf. People v. Warren, 37 Misc.3d 27, 844 N.Y.S.2d 563 [App. Term, 2d Dept. 2007] [defendant might have been able to pursue an alibi defense] ). Moreover, with respect to each of the offenses in this case, the time of the offense was not a material element of the offense (see People v. Jones, 37 A.D.3d 1111, 1111, 829 N.Y.S.2d 364 [4th Dept 2007] ). Since the time of day was not an essential element of any of the charged offenses, an approximation of time on a specified day, month, and year, was satisfactory since it was sufficient to enable a defendant to prepare a defense (see People v. Luscomb, 68 A.D.3d 1548, 1550, 892 N.Y.S.2d 267 [3d Dept 2009] [no prejudice where indictment alleged that the crime against a 15–year old occurred “in or about the late summer of 2004,” and the victim testified at trial that it occurred “in late October 2004”] ).
The variance between the misdemeanor complaint and the trial testimony was excusable considering the victims' ages (see People v. Carney, 222 A.D.2d 1006, 636 N.Y.S.2d 524 [4th Dept 1995] ; see also People v. Keindl, 68 N.Y.2d 410, 419 [1986] ; People v. Morris, 61 N.Y.2d 290, 296 [1984] ). Despite the three and a half hour variance between the time specified in the misdemeanor complaint and proof at trial, the child witnesses testified with specificity about a single evening with defendant, thus providing her with sufficient information as to date, time, and place to permit her to prepare a meaningful defense (see People v. Luscomb, 68 A.D.3d 1548, 1550, 892 N.Y.S.2d 267 ), and is adequately detailed to prevent defendant from being tried twice for the same offenses (see People v. Konieczney, 2 N.Y.3d 569, 575 [2004] ; People v. Casey, 95 N.Y.2d 354, 360 [2000] ). Under the circumstances, it was understandable that defense counsel was unable to articulate how the variance prejudiced his client (see People v. Carney, 222 A.D.2d 1006, 1007, 636 N.Y.S.2d 524 ).
September 23, 2014 transcript, page 12; see September 19, 2014 transcript, pages 78–79; pages 125–126; and page 130.
Defendant contends that he would have moved for separate trials had he known of the gap of a few hours between the offenses committed against each child. However, that argument was obviated by the fact that the verdict followed a non-jury trial, and the offenses were properly joinable regardless of whether they were based on one criminal transaction, or more than one criminal transaction (see CPL 100.35 ; CPL 100.45[1] ; CPL 200.20[2][a] and [c] ). Defendant has not shown that severance should have been granted “in the interest of justice and for good cause” (see CPL 200.20[3] ; People v. Lane, 56 N.Y.2d 1, 7 [1982] ; see also CPL 100.35 ; CPL 100.45[1] ). More importantly, defendant did not accept the Court's offer to sever when this issue first arose during trial. Furthermore, this Court denies defendant's request to change evidentiary rulings, including the admissibility of statements and a permissible adverse inference as to lost voice mail.
September 19, 2014 transcript, page 78.
Part of the September 23, 2014 transcript, page 101–102 is inaccurate. The permissible inference this Court chose was that had the voice mail been preserved, it would not have supported the allegations testified to by Karen Aime (emphasis added to note correction).
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Contrary to defendant's contention, defects in obtaining supporting depositions do not vitiate an otherwise valid accusatory instrument. In People v. Netusil (34 Misc.3d 137(A), 2011 N.Y. Slip Op 52410(U) [App Term, 9th and 10th Judicial Districts 2011] ), the information was based on a police officer's personal knowledge that defendant operated a motor vehicle. The Appellate Term held that it “is of no import that the trial testimony established that the police officer, in fact, had not observed defendant operate the vehicle, but had been informed by other persons that defendant had operated the vehicle, since [a]n accusatory instrument must be construed [within] its four corners (People v. Thomas, 4 N.Y.3d 143, 146 [2005] ) and may not be undone by contrary findings of fact in a subsequent proceeding (People v. Gordon, 88 N.Y.2d 92, 96 [1996] )” ' [additional citation omitted]. Accordingly, in the instant case, contradictory testimony made at trial, or evidence that a deponent did not read the accusatory instrument, as suggested by defendant, do not undermine the sufficiency of the prosecutor's information.
Accordingly, defendant's requests for an order setting aside the verdict, and dismissing the prosecutor's information are denied.
This opinion shall constitute the decision of the Court.