Opinion
No. 2013KN014806.
03-03-2014
The PEOPLE of the State of New York, Plaintiff, v. Estiven MARROQUIN, Defendant.
Kenneth P. Thompson, Kings County District Attorney, by Assistant District Attorney Laurae A. Caruth, New York, for plaintiff. Michael Fred Baum, Esq., Brooklyn Defender Services, Brooklyn, for defendant.
Kenneth P. Thompson, Kings County District Attorney, by Assistant District Attorney Laurae A. Caruth, New York, for plaintiff.
Michael Fred Baum, Esq., Brooklyn Defender Services, Brooklyn, for defendant.
Opinion
LAURA R. JOHNSON, J.
Defendant is charged with Criminal Mischief in the Fourth Degree (PL § 145.00[1] ), Making Graffiti (PL § 145.60[2] ), and Unlawfully Posting Advertisements (PL § 145.30). All three charges are based on a single event: defendant's alleged unauthorized placement of a so-called “slap sticker” on a traffic sign sometime between November 1, 2012 and November 30, 2012. By Notice of Motion filed on February 4, 2014, defendant seeks dismissal of the accusatory instrument. He argues that the one month time frame alleged in the accusatory instrument is unconstitutionally broad. In the alternative, defendant requests a bill of particulars. The People oppose defendant's motion. For the reasons that follow, defendant's motion is denied.
Facts
The accusatory instrument, sworn to by Police Officer Craig Rudy, alleges that defendant confessed to Rudy that sometime between November 1, 2012 and November 30, 2012, defendant placed a “slap sticker” bearing defendant's “tag” (“MSA”) on a one-way traffic sign located at the south east corner of Etna Street and Chestnut Street in Brooklyn (“Deponent is informed by defendant's own statements that, during the above time and at the above location, defendant did place a slap sticker bearing defendant's signature (“MSA”) on a one way traffic sign”). Officer Rudy alleges that he visited that location and observed a slap sticker showing the hand-drawn letters “MSA” on a one-way traffic sign and that the slap sticker could not be removed from the sign without damaging it.
Defendant was arrested on February 25, 2013 and charged with Criminal Mischief and the related offenses. Defendant agreed to waive his rights to request a bill of particulars, or make a demand to produce or motion for discovery and instead accept a “Stipulation in Lieu of Pre–Trial Request for a Bill of Particulars; Demand to Produce; and Motion for Discovery,” which the People served and filed on April 15, 2013, together with attached discovery material. Information about the defaced sign (“a one way sign”) and its location (“the corner of Chestnut St. and Etna St.”) was in the Complaint Room Screening Sheet and the on-line booking worksheet provided to defendant as part of that package. Also included was defendant's own written statement. Defendant's written statement similarly identified the type of sign and its location, and contained defendant's drawing of his “MSA” “signature.” It is a fair inference from those documents—as well as from the accusatory instrument—that the sole source of the allegation concerning the approximate date of the charged crimes is defendant's confession to the arresting officer on February 25, 2013.
Analysis
Defendant argues that the accusatory instrument must be dismissed because the 30–day time frame during which he is alleged to have affixed the slap sticker to the traffic sign is so broad as to deprive him of the ability to mount an adequate defense, or to protect his right not to be tried again for the same charge in violation of the Double Jeopardy Clause.
Although these safeguards have been described as “the paramount purpose of an accusatory instrument,” People v. Sedlock, 8 NY3d 535, 538 (2007), it is also established that when the exact time is not an essential element of the crime(s) charged—as it is not in this case—“the [accusatory instrument] is often permitted to state the time in approximate terms.” People v. Morris, 61 N.Y.2d 290, 295 (1984) (citations omitted). In general, excepting time spans of far greater length than the thirty days at issue here, there is no per se rule with respect to the reasonableness of a given time frame; rather, as the time frame is lengthened, there is “proportionately heightened scrutiny given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant.” People v. Sedlock, 8 NY3d at 539. Thus, in most cases in which only an approximate time frame is alleged, “determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the [accusatory instrument] and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances.” People v. Morris, 61 N.Y.2d at 295.
The Court of Appeals has instructed that this determination has two parts, albeit with consideration of factors that overlap to a substantial degree. In the first instance, the adequacy of the time frame set out in the accusatory instrument must be measured by the People's good faith in narrowing it to the extent reasonably possible. “In evaluating the possibility that a more specific date could have been obtained through diligent efforts, the court might consider, among other things: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately.” Next, assuming that the People have made an adequate effort to ascertain the time of the crime, the court must determine whether the time frame in the accusatory instrument is reasonable: “factors to be considered might include but should not be limited to the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the [accusatory instrument] and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.” Id. at 296.
The People appear to have made adequate efforts to identify the time of the offense, under the particular circumstances here. As disclosed in the Complaint Room Screening Sheet provided to defendant during the stipulated discovery process, the police were apparently unaware that the sign had been defaced until defendant was arrested for a different offense; defendant admitted the crime during questioning about his possible involvement in graffiti offenses after “graffiti notebooks” were recovered from him post-arrest. The crime was against public property, without any “victim” in the usual sense. It was the type of crime likely to be committed stealthily and to attract little (if any) notice, either immediately or in the longer run. Indeed, defendant states in his motion papers that there were no witnesses to the crime. There is no reason to believe that there are other investigatory avenues that the People should have pursued, and none are suggested by defendant.
This Court finds that the 30–day time frame specified in the accusatory instrument is reasonable. Notably, the Appellate Division, Second Department has found a two-month period alleged in an accusatory instrument sufficient to allow preparation of an adequate defense, where accompanied by information about the approximate hour (“evening”) and locations (child's bedroom and livingroom) where the charged offenses occurred. People v. Williams, 280 A.D.2d 563, 564 (2d Dept 2001). Here, the time period is a month shorter and the accusatory instrument and the stipulated discovery advised defendant even more exactly as to where the crime took place, by identifying the precise sign that had been defaced. This precision is also sufficient to safeguard defendant against a second prosecution for the same crime.
At bottom, defendant is in the peculiar position of arguing that the accusatory instrument must be dismissed because—when he himself brought the graffiti offense to light in his confession only three to four months after its commission—he was unable to recall its date more exactly. In light of defendant's confession (which, corroborated by Officer Rudy's observation of the slap sticker on the sign identified by defendant, is the critical evidence here), it is unlikely that an alibi defense would be of substantial use at a trial of the charges. In any event, should the People at some point identify a more precise date for the crime, defendant might well be entitled to an adjournment to attempt to establish an alibi defense, regardless of whether he had previously provided the People with alibi notice. See People v. Morris, 61 N.Y.2d at 297 (discussing but not deciding the question).
The information requested by the defendant in his request for a bill of particulars has already been provided through the accusatory instrument and through documents submitted with the Stipulation in Lieu of Pre–Trial Request for a Bill of Particulars dated April 15, 2013. The People are reminded of their continuing obligation to provide any updated information as to the date of the crime as it becomes known.
Conclusion
For the reasons set forth above, defendant's motion to dismiss the accusatory instrument and request for a bill of particulars is denied.
This constitutes the Decision and Order of the Court.