People v Alston

[*1] People v Alston 2011 NY Slip Op 50458(U) Decided on March 25, 2011 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 25, 2011
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Quamesha Alston, Defendant



2011KN001909

 

For the People, Charles J. Hynes, District Attorney, Kings County, by Danielle Lajoie, Legal Assistant, under the supervision of Maria Cienava, Esq., Assistant District Attorney.

For the Defendant, Susan Mitchell, Esq.

John H. Wilson, J.

Defendant is charged with two counts each of Sexual Misconduct (PL Sec. 130.20), Sexual Abuse in the Second Degree (PL Sec. 130.60), and Endangering the Welfare of a Child (PL Sec. 260.10), all Class A misdemeanors.[FN1]

By motion dated February 23, 2011, Defendant seeks dismissal of all charges of the docket, asserting that the People's complaint is facially insufficient in that the "specific dates and times for each of the crimes" alleged has not been provided, "in violation of the notice requirements of the Federal and State Constitutions."

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated March 22, 2011. The motion is granted to the extent of ordering the People to provide [*2]Defendant with either another superceding information, prosecutor's information, or a bill of particulars on or before May 11, 2011.

FACTUAL STATEMENT

Pursuant to the superceding Criminal Court Complaint, on or about and between October 1, 2010 and November 6, 2010, and then again, on or about and between November 6, 2010 and December 31, 2010, Defendant "did engage in sexual intercourse...with the informant."

The informant is alleged to have been approximately 14 years old at the time of these offenses.

While the superceding complaint only alleges two times and places of occurrence, consisting of three counts each, a review of the Complaint Room Screening Sheet, provided with the People's Discovery by Stipulation package dated February 1, 2011, indicates "Deft and c/w first had sex around the beginning of October at deft's residence and then had sex on a regular basis at deft's residence (a few times a week)."

LEGAL ANALYSIS RE: FACIAL SUFFICIENCY

Under CPL Sec. 200.50(6), an indictment must state that a crime was committed "on or on or about, a designated date or during a designated period of time." Further, under CPL Sec. 200.30(1), "each count of an indictment may charge one offense only." While these statutes are specifically addressed to indictments, the principles contained in these statutes have been applied to misdemeanor informations. See, People v. Mitchell S., 151 Misc 2d 208, 211, 573 NYS2d 124 (Crim Ct, Kings Cty, 1991) ("In order to protect a defendant's right to fair notice of the charges against him, the same rules governing indictments should apply to an information charging a defendant with misdemeanors.") See, also, People v. Todd, 119 Misc 2d 488, 489, 463 NYS2d 729 (Crim Ct, NY Cty, 1983) ("(L)anguage of CPL Sec. 100.15 prescribing form and content of an information would appear to incorporate CPL Art. 200.")

In People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003), a case similar to the instant matter, defendant was charged with Sexual Misconduct in an information which stated that defendant had sexual intercourse with a 14 year old girl " numerous times' between the dates of September 22, 2002 and April 2, 2003." The court there applied the constitutional protections of CPL Sec. 200.50(6) and 200.30(1) to the misdemeanor information. "(T)he provisions...which prohibit duplicitous pleadings and which require sufficient precision in the drafting of charges are constitutionally required in all criminal cases." 1 Misc 3d at 879 (citations omitted).

Pursuant to this authority, this Court will apply the standards of CPL Sec. 200.50(6) and 200.30(1) to the present misdemeanor information. [*3]

The People allege two separate times and places of occurrence against the Defendant, each encompassing a time frame of from one month to two months. These time intervals are not so excessive as to be per se unreasonable. See, People v. Morris, 61 NY2d 290, 473 NYS2d 769 (1984); People v. Beauchamp, 74 NY2d 639, 541 NYS2d 977 (1989). Thus, the misdemeanor information presented here comports with the requirements of CPL Sec. 200.60(6).

However, in the discovery provided by the People, the acts alleged occurred more than two times during the time frame alleged in the superceding information. This inconsistency is an indication of a duplicitous information in violation of CPL Sec. 200.30(1). See, People v. Keindl, 68 NY2d 410, 509 NYS2d 790 (1986).

The proper remedy for this defect, at this stage, is not dismissal. Instead, the People should be given the chance to cure this inconsistency between the superceding information and the discovery provided, by "either filing a superceding information or prosecutor's information, or serving a bill of particulars." Evangelista, 1 Misc 3d at 874.

Thus, the People have until May 11, 2011 to provide either another superceding information, prosecutor's information, or a bill of particulars in which they clarify whether they are alleging only two incidents of criminal conduct, as alleged in the superceding complaint, or if there are more incidents. If there are more, People are to provide the dates, times and places of these additional allegations, in compliance with Morris and Beauchamp.

All other arguments advanced by Defendant and People have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkMarch 25, 2011

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1: Defendant was also initially charged with Rape in The Second Degree (PL Sec. 130.30), however, that charge was dismissed when the People filed a Superceding Information with the Court on February 1, 2011.