Summary
observing that child molestation cannot be charged as "'a continuous course of conduct'" in New York and that an indictment must identify one specific act for each count charged
Summary of this case from State v. SaluterOpinion
October 18, 1990
Appeal from the Supreme Court, Bronx County (Lawrence Bernstein, J.).
The record in this case unequivocally indicates that defendant, a teacher's aide at the Puerto Rican Association for Community Action Day Care Center (PRACA), engaged in criminal activity involving the rape, sodomy and sexual abuse of innocent, defenseless children between the ages of three and five years. However, we nevertheless must reverse, under constraint of the recent Court of Appeals ruling in People v. Beauchamp ( 74 N.Y.2d 639). In that case, the court vacated the convictions of defendant's alleged coperpetrator, Franklin Beauchamp, "because the charges, as precisely framed by the bill of particulars, were duplicitous", and therefore in violation of CPL 200.30 (supra, at 641).
As the Court of Appeals, speaking through Judge Alexander, has previously stated, "where a crime is made out by the commission of one act, that act must be the only offense alleged in the count." (People v. Keindl, 68 N.Y.2d 410, 417.) This requirement comports with the mandate of CPL 200.30 (1), which provides "[e]ach count of an indictment may charge one offense only." (People v. Keindl, 68 N.Y.2d 410, 417, supra.) Thus, where "one count alleges the commission of a particular offense occurring repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous." (Supra, at 417-418.) In Beauchamp (supra), as in the case at bar, although the indictment charged only one single offense per count, the bill of particulars specifically alleged, as to each count, that defendant engaged "in a continuous course of conduct" over a period in excess of a number of months. (See, People v. Beauchamp, 143 A.D.2d 13 [1st Dept 1988], mod 74 N.Y.2d, supra, at 640-641.)
It was, therefore, error for Supreme Court to deny defense counsel's motion to dismiss the indictment for duplicitousness following receipt of the bill of particulars. Counsel at that time correctly noted that the language contained therein regarding a "continuing course of conduct" rendered the indictment defective. Appellate counsel now correctly observes that, in fact, during defendant's trial the "continuing crime" theory was a recurring theme throughout the trial, and repeatedly raised by the prosecutor on summation, thereby underscoring the error and rendering it impossible to determine which of the multiple acts alleged actually was the basis of defendant's conviction of any given count.
Furthermore, the indictment against defendant was fatally defective because the 3 1/2-month time interval alleged in each count was so excessive as to be unreasonable, i.e., leaving it impossible for defendant to answer and defend against the charges, in violation of the specificity requirements of CPL 200.50 (6). While the People are not always required to allege the precise date and time of an incident in rape, sodomy or sexual abuse prosecutions, they do have to provide a "reasonable approximation, under the circumstances of the individual case, of the date or dates involved." (People v. Morris, 61 N.Y.2d 290, 292.) Here, since the time period of the counts charged was equal to the defendant's total tenure of employment at PRACA, there does not appear to be even a colorable effort to narrow the time period during which the criminal conduct occurred. (See, People v. Beauchamp, 74 N.Y.2d, supra, at 641; accord, People v Keindl, 68 N.Y.2d, supra, at 419-420.) Thus, we hold that the indictment deprived defendant of his right to fair notice of the charges against him, as well as the right to prepare a defense.
Concur — Murphy, P.J., Sullivan, Carro and Milonas, JJ.