People v Bauman

[*1] People v Bauman 2009 NY Slip Op 52436(U) [25 Misc 3d 1236(A)] Decided on November 2, 2009 Supreme Court, Monroe County Valentino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 2, 2009
Supreme Court, Monroe County

The People of the State of New York

against

Amber Bauman and Charles Edward Lafler, Defendants.



2009-0280A & B



For the People:

Michael C. Green

Monroe County District Attorney

Patrick Farrell, A.D.A.

47 S Fitzhugh St, Ste 832

Rochester, NY 14614

For Defendants:

Edward J. Nowak

Monroe County Public Defender

Julie Cianca, A.P.D.

For Defendant Bauman

10 N Fitzhugh St

Rochester, NY 14614

Patrick Russi, Esq.

For Defendant Lafler

2 State St, 400 Crossroads Bldg

Rochester, NY 14614

Joseph D. Valentino, J.

Defendants are jointly charged with assault in the first degree (Penal Law §§ 20.00; 120.10 [3]). Also, Bauman is charged with one count of assault in the second degree (Penal Law § 120.05 [2]), and Lafler is charged with three counts of assault in the second degree (Penal Law § 120.05 [2]) [*2]and one count of forcible touching (Penal Law § 130.52). Defendants moved (1) for inspection of the Grand Jury minutes pursuant to CPL 210.30 and to dismiss or reduce the indictment for insufficiency or defects, (2) for a bill of particulars, (3) to dismiss duplicitous counts and (4) to dismiss the first count, assault in the second degree (Penal Law § 120.10 [3]) because it is not a course of conduct offense.

Bauman contended that the counts against her fail to provide her with adequate notice of the charges and, therefore, the charges are subject to dismissal. Lafler contended that the indictment was subject to dismissal for failure to notify him of the re-presentment of the case to the Grand Jury (CPL 190.50 [5]). Both defendants moved to dismiss on speedy trial grounds (CPL 30.20; 30.30).

I.First Count

Pursuant to CPL 200.30 (1), "[e]ach count of an indictment may charge one offense only" and CPL 200.50 (3) requires that an indictment must contain "[a] separate accusation or count addressed to each offense charged, if there be more than one." "[W]here 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" (People v Keindl, 68 NY2d 410, 417-418 [1986]). For example, where three assaults may have occurred during a continuing course of activity, each was a separate and distinct physical act of violence committed against the victim (see, People v Davenport, 58 AD3d 892, 896 [3d Dept], lv denied 12 NY3d 782 [2009]).

Regarding duplicity, this Court previously held:

"A duplicitous count is one that impermissibly charges more than one crime. Whether an indictment is duplicitous rests on a careful analysis of the facts which support the framing of the charge and whether the charge, as set forth in the indictment, expresses a single crime under the same theory. 'In determining whether a particular count is duplicitous, a court will consider . . . the indictment . . ., as supplemented by any bill of particulars, [and] evidence presented to the Grand Jury . . .' Even where the counts are not facially duplicitous, if the review of the Grand Jury minutes reveals that each count was, in fact, impermissibly premised upon multiple acts, the counts are subject to dismissal as duplicitous. 'Acts which separately and individually make out distinct crimes must be charged in separate and distinct counts.'"(citations omitted, emphasis supplied)

Although the Court of Appeals noted that depraved indifference assault can be a continuing offense and depravity can be alleged by establishing that defendant engaged in a course of conduct over a period of time (People v Bauman, 12 NY3d 152 [2009]), the Court instructed and cautioned that "where. . . the injury is 'serious physical injury to another person' . . . , there can be (and might well have been in this case) multiple instances of serious physical injury and consequently, multiple completed offenses" (id.). Importantly, the Court instructed that the injury element was the precise point which distinguished these crimes for purposes of duplicity analysis (id.).

A.Indictment

The first count alleges that "defendants, on or about and between February 1, 2005 and April 7, 2005, in the County of Monroe . . . under circumstances evincing a depraved indifference to human life, recklessly engaged in a course of conduct which created a grave risk of death to . . Bruce Phillips and thereby caused serious physical injury to [him]."

B.Bill of Particulars

The People's Final Amended Response to Request for Bill of Particulars elaborates that the course of conduct: [*3] "included, but was not limited to, striking Mr. Phillips about the head and body with fists and other objects, and providing inappropriate and inadequate nutrition, and subjecting him to inadequate and inappropriate living conditions, and failing to seek medical attention for him all of which created a substantial risk of death on April 7, 2005. Such course of conduct ultimately resulted in substantial risk of death to and serious physical injury to Mr. Phillips on April 7, 2005 which included, but was not limited to, multiple facial bone fractures, rib fractures, patella fracture, right and left hand fractures; and 2nd degree burns to lower limbs; and hypothermia; and traumatic shock; and grossly inadequate nutrition all of which created a substantial risk of` death."

C.Evidence Before the Grand Jury

In the Grand Jury, Mr. Phillips testified that from February 2005 to April 2005, while residing at 160 Hurstbourne Road with Bauman and Lafler, (1) he was given only Ramen noodles to eat, (2) he lost weight and weighed only 98 pounds, (3) he was hit with a bat if he took any food from defendants' refrigerator, (4) he slept in the basement on a lounge chair, and (5) he had no memory of April 6, 2005 but woke up at Strong Memorial Hospital. At Strong Memorial Hospital, he received medical treatment for injuries to his fingers and burns to his lower legs and forearm. The People also presented testimony that when emergency personnel were called to the Hurstbourne Road residence on April 7, 2005, Mr. Phillips was unresponsive, unconscious and extremely cold, his face was extremely swollen, and he had some bruising and an injury to his arm.

Also, Phillips testified that between August 1, 2004 and February 1, 2005, while residing at Harris Park, Bauman hit him on the back two or three times with an aluminum bat. Also, while at Harris Park, Mr. Phillips testified that Lafler (1) hit his hand with a hammer breaking his fingers, (2) burned his left arm with a hot pan, (3) burned the lower part of his legs and feet with hot water while taking a bath, and (4) placed the end of a vacuum cleaner on his penis and turned on the vacuum.

The indictment, as supplemented by the Final Amended Response to Request for Bill of Particulars, the evidence presented to the Grand Jury, and following the Court of Appeals' instruction to focus on the injury element as the precise point to distinguish crimes for duplicity analysis (see, People v Bauman, 12 NY2d 152, supra), all lead this Court to conclude that the first count is impermissibly premised upon multiple acts and separate injuries which occurred over an 8-month period, August 1, 2004 to April 7, 2005. Tellingly, the People included the hand fractures and second degree burns to Phillips' lower limbs in the Final Amended Response to Request for Bill of Particulars and, by such inclusion, the People are impermissibly basing the first count on multiple incidents that occurred at the Harris Park address from the period August 1, 2004 to February 1, 2005, although the time period alleged in the first count is limited to February 1, 2005 and April 7, 2005. The Grand Jury testimony and the Final Amended Response to Request for Bill of Particulars reveal that there were "multiple instances of serious physical injury and, consequently, multiple completed offenses" (People v Bauman, 12 NY2d 152, supra).

The People combined separate acts of assault in the second degree (D felonies) to attain an indictment on a single count of depraved indifference assault in the first degree (B felony), alleging that there was a continuous course of conduct, which is not permitted (see generally, People v Davenport, 58 AD3d 892, supra; People v Kalakowski, 120 AD2d 763, 764-765 [3d Dept], lv denied 68 NY2d 669 [1986] [attempted assault and assault that were part of a continuous course of activity [*4]constituted distinct and separate acts]). Consequently, the Court is constrained to dismiss the first count as duplicitous.

II.Second Count

Bauman contended that the second count lacked specificity and is based upon insufficient evidence. "[A]n indictment must allege the crime charged with sufficient specificity to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecution for the same offense" (People v Keindl, 68 NY2d 410 [1986]). "[T]he determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant

by the indictment and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances" (People v Morris, 61 NY2d 290, 295 [1984]; People v Risolo, 261 AD2d 921, 921 [4th Dept, 1999]).

The second count alleges that Bauman "on or about and between August 1, 2004 and February 1, 2005, . . . with intent to cause physical injury" to Phillips, caused such injury with an aluminum bat. Phillips testified in the Grand Jury that Bauman hit him on the back two or three times with an aluminum bat when he resided at the Harris Park residence during the period August 1, 2004 to February 1, 2005. The Final Amended Response to Request for Bill of Particulars restates the indictment adding that Bauman "commit[ted] this act by striking Bruce Phillips with the bat multiple times on one specific date on or about and between August 1, 2004, and February 1, 2005, resulting in pain to Mr. Philips." This response specifies that the strikes were on one specific date.

"[W]hen time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms" (People v Watt, 81 NY2d 772, 774, [1994] [five-month time frame not per se unreasonable). Accordingly, here the Court concludes that the time span set forth in this count is sufficient to permit Bauman to prepare a defense to the charge (see generally, People v Sabo, 179 Misc 2d 396, 407 [Supreme Court, NY County 1998]).

The People specified the injury to Phillips as "pain" and Phillips also testified in the Grand Jury that he was in pain as a result of Bauman striking him with the aluminum bat in the back two or three times. Upon review of the Grand Jury minutes and exhibits, including Phillips' medical records, the Court concludes that the presentment is minimally sufficient to establish the threshold of serious physical injury to sustain the charge of assault in the second degree against Bauman.

Consequently, the Court denies reduction of the second count to attempted assault in the second degree.

III.Inspection of Grand Jury Minutes for the Remaining Counts

Regarding the third, fourth, fifth and sixth counts, the Court fully examined the stenographic minutes of the Grand Jury proceeding and denies dismissal or reduction of those counts. Overall, the proceeding was not defective by reason of any improper, incomplete or incorrect instructions given to the Grand Jury or by reason of any other defect in the proceeding. The jury was fully charged with respect to the principles of law that were required for this particular case. The Court concludes that the evidence was legally sufficient to establish the offenses charged. Competent evidence, which if accepted as true, would establish every element of the offenses charged and Lafler's commission thereof (see, People v Mikuszewski, 73 NY2d 407 [1989]). Dismissal of an indictment for insufficiency or defects is an exceptional remedy and it is not warranted for these [*5]remaining counts (see, People v Darby, 75 NY2d 449 [1990]).

IV.CPL 190.50 Motion

Regarding Lafler's contention that he was not provided notice of the Grand Jury re-presentment, his motion was not made within five days of arraignment. Lafler was arraigned on April 17, 2009 and moved June 2, 2009 for dismissal based upon CPL 190.50. Where a defendant claims denial of the right to testify before the Grand Jury several months after the defendant's arraignment on the indictment, the motion is properly denied as untimely (see, CPL 190.50[5][c]; People v Simpson, 292 AD2d 852 [4th Dept, 2002]). Here, the Court must deny defendant's motion as untimely (CPL 190.50 [c] [5]).

V.Speedy Trial Motions

Bauman and Lafler moved to dismiss the indictment pursuant to CPL 30.20 and 30.30, alleging that their constitutional and statutory rights to a speedy trial were violated.

A.CPL 30.20 Challenges

Regarding defendants' assertions of violation of their constitutional right to speedy trial pursuant to CPL 30.20, the Court must consider the five factors set forth in People v Taranovich, 37 NY2d 442 (1975), which are (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay (id., at 445).

Here, the Court determines that several years have passed during which the People pursued their right to appeal this Court's dismissal of the original indictment, defendants have been out of custody and there is no indication that the defense has been impaired by the delay. Defense counsels' affirmations are conclusory and insufficient to show actual prejudice (see, People v Ortiz, 16 AD3d 1130 [4th Dept, 2005]; People v Taranovich, supra). Thus, defendants' motions to dismiss the indictment are denied.

B.CPL 30.30 Challenges

Turning to the statutory right to a speedy trial (CPL 30.30), the initial felony complaint against Lafler was filed on May 10, 2005, and charged him with assault in the second degree. The felony complaint alleged that between February 1, 2005 and April 7, 2005, Lafler struck the complainant with a wooden handled hammer on the left hand and fingers causing broken bones. The six-month time period within which the People were required to announce readiness expired November 10, 2005, for a total of 184 days.

Regarding Bauman, the misdemeanor information dated May 10, 2005, charges her with assault in the third degree and alleged that between February 1, 2005 and April 7, 2005, she intentionally caused physical injury to Mr. Phillips by kneeing him in the abdominal area causing injuries to his stomach and rib cage area. She was arraigned on May 10, 2005 in local court. She was subsequently indicted for a assault in the first degree.

CPL 30.30 requires the People to answer ready for trial within six months of "the commencement of a criminal action wherein a defendant is accused of . . . a felony" or within 90 days of "the commencement of a criminal action wherein a defendant is accused of . . . a misdemeanor punishable by a sentence of imprisonment of more than three months." However, a case which is commenced as a misdemeanor and later converted to a felony case is subject to the six-[*6]month speedy trial period (People v Cooper, 90 NY2d 292 [1997]). "The determinative factor is not the initial charge but the level of crime with which the defendant is ultimately 'accused' and for which [s]he is prosecuted" (People v Cooper, 219 AD2d 426,430 [1st Dept, 1996], affd 90 NY2d 292 [1997]). Commencement of a criminal action is used only as the starting point for the People's time to be ready (id.). Consequently, the six-month time period within which the People were required to announce readiness regarding Bauman expired November 10, 2005, for a total of 184 days.

"The Court of Appeals' methodology for pre-readiness calculations under CPL 30.30 is to (1) determine the commencement of the action, (2) measure six months from commencement, (3) determine the number of days in this period, (4) determine the date of effective readiness communication, (5) calculate the number of days from commencement to communication of readiness, and (6) compare to the readiness period" (People v Albrechtsen, 1 Misc 3d 703, 704-705 [Supreme Ct Greene County, 2003]).

Regarding both defendants, the People announced readiness with the filing of the first indictment on October 25, 2005, using 169 days on the speedy trial clock. Bauman was arraigned on November 10, 2005, at which time the People announced readiness. The matter was adjourned to November 15, 2005 for counsel. On November 22, 2005, the case was adjourned for motion practice, after which the indictment was dismissed and the People appealed.

Lafler was arraigned on November 9, 2005, at which time the People again announced readiness and the matter was adjourned to January 3, 2006 for argument of motions. On January 17, 2006, the case was called for motions, but the People requested more time to respond given the late filing of Lafler's motion. The case was adjourned to February 7, 2006 with Lafler's consent. The People remained ready for trial.

On February 7, 2006, the case was adjourned to March 7, 2006, with Lafler's consent for supplemental motions and the People again announced readiness for trial. On March 7, 2006, oral argument of the motions occurred and the Court reserved decision adjourning the case to April 11, 2006 for decision. The case was next called on April 17, 2006, and the Court dismissed the first indictment upon the determination that both counts of the original indictment were duplicitous.

Thereafter, the People filed a notice of appeal on April 25, 2006. They filed transcripts of the proceedings on October 5, 2006. On or about May 25, 2007, the People perfected their appeal and the decision dismissing the indictment was affirmed on May 2, 2008. The People subsequently sought and were granted leave to appeal. The Court of Appeals heard the case and affirmed in a decision dated March 26, 2009. Thereafter the People filed a second indictment on April 3, 2009 with a statement of readiness. The second indictment included the six counts mentioned above.

Defendants urge the Court to charge the People with the entire time from October 25, 2005 to April 17, 2006, asserting that the People's announcement of readiness was illusory and invalid given that the indictment was defective. Also, Lafler specifies that the People should be charged with 153 days of pre-indictment delay from May 25, 2005 to October 25, 2005, and 14 days of post-readiness delay from April 17, 2006 to May 1, 2006 when the indictment was dismissed until the People filed their Notice of Appeal.

The period May 9, 2005 to October 25, 2005, pre-readiness delay, is excludable time pursuant to CPL 30.30 (4) (g) because the complainant, Mr. Phillips, was unavailable due to his serious medical condition (People v Goodman, 41 NY2d 888 [1977] [unavailability of a principal [*7]prosecution witness, for medical reasons, is a sufficient exceptional circumstance to warrant the exclusion of the period of delay]). The affidavit of Brenda Phillips, Mr. Phillips' sister, and the People's affirmation that Mr. Philips was unable to testify before the Grand Jury until October 2005 is not controverted by defendants.

Turning to defendants' claims of the People's illusory announcements of readiness regarding the prior indictment,"an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime" (People v Iannone, 45 NY2d 589, 600 [1978]). A claim of duplicity is directed to the fact that the indictment effectively charges a defendant with the commission of more than one crime (see, People v Caban, 129 AD2d 721 [2d Dept 1987]). "A duplicitous indictment is not jurisdictionally defective" (People v Vega, 268 AD2d 686, 687 [2000]), so as to render the statement of readiness illusory.

Certainly, where a defective indictment is pending and the People announced readiness on that indictment, the statement of readiness is illusory and the time during which the indictment is pending is chargeable against the speedy trial clock (see, People v Weaver, 34 AD3d 1047 [3d Dept, 2006], lv denied 8 NY3d 928 [2007]). Here, however, the indictment was not defective so as to render the People's announcement of readiness illusory. Accordingly, the Court concludes that the entire time during which the original indictment was pending is not chargeable to the People.

The 14-day period, April 17, 2006 to May 1, 2006, is insufficient to exceed the 184 days on the speedy trial clock. In any event, the 14 days are excludable pursuant to CPL 30.30 (4) (a). Furthermore, the time during which the case was on appeal is excludable and not chargeable to the People (CPL 30.30 [4] [a]).

Accordingly, the Court must deny defendants' motions to dismiss on speedy trial grounds.

Defendants' motions are granted in part and denied in part as set forth herein.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

November 2, 2009

____________________________________

Hon. Joseph D. Valentino

Justice Supreme Court