People v Atkins

[*1] People v Atkins 2017 NY Slip Op 50466(U) Decided on April 10, 2017 Criminal Court Of The City Of New York, Bronx County Pitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2017
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Leroy Atkins, Defendant.



2016BX054944



For the People: By ADA Nicholas Lastella, Darcel D. Clark, District Attorney of Bronx County

For the Defendant: Lissa Luke, Esq., of Luke McKay, PLLC
Bahaati E. Pitt, J.

Defendant Leroy Atkins moves for the following: (1) a dismissal of the of the accusatory instrument upon the grounds of facial insufficiency, pursuant to Criminal Procedure Law § 170.30(1)(a); (2) a pre-trial "voluntariness hearing," pursuant to Criminal Procedure Law §§ 710.20(3) and 60.45; (3) preclusion at trial of statements made by defendant upon the grounds that proper notice has not been given, pursuant to Criminal Procedure Law § 710.30; (4) preclusion at trial of prior convictions or bad acts; and (5) the reservation of rights to file additional motions. The defendant is charged with Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); two counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]).

Defendant's motion to dismiss the charges of Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); two counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]) upon the grounds of facial insufficiency are DENIED.

A Huntley/Dunaway hearing is GRANTED.[FN1]

The defendant's motion for an order suppressing statements that he allegedly made to law enforcement personnel and which the People intend to offer in evidence is granted to the extent [*2]that an evidentiary ("Huntley") hearing shall be conducted to resolve a factual issue, whether the statements were made involuntarily as defined in CPL 60.45.

If there are additional statements which the People obtained from the defendant and which they do not intend to offer in evidence in their own case, the People are directed to disclose the content of those statements to the defendant. Furthermore the "Huntley" hearing shall be expanded to consider the voluntariness of those statements in anticipation that the People will seek to use them to impeach the defendant's trial testimony.

Any and all Sandoval applications will be heard immediately before trial.

The defendant's reservation of his right to make further motions is DENIED. (See Criminal Procedure Law § 255.20 [3]). Any future motions shall be summarily denied absent a showing of good cause.

To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15 [2]) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL § 100.15 [3]). Further, it must provide reasonable cause to believe that the defendant committed the offenses charged in the information and include non-hearsay factual allegations, which, if true, establish every element of the offense charged (CPL 100.40[1]).

CPL § 100.40 (1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" (People v Jones, 9 NY3d 259, 261, 878 N.E.2d 1016, 848 N.Y.S.2d 600 [2007]). The Court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v Henderson, 92 NY2d 677 [1999]; People v Jennings, 69 NY2d 103, 115 [1986]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

However, while "CPL 200.50 (6) commands that an indictment contain a statement in each count indicating that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time the statute neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be stated" (People v Keindl, 68 NY2d 410, 417 [NY 1986] quoting People v Morris, 61 NY2d 290, [NY 1984]). Therefore, "[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" as long as it "set[s] forth a time interval which reasonably serves the function of protecting [the] defendant's constitutional right to be informed of the nature and cause of the accusation" (People v Watt, 81 NY2d 772, 774 [1993] [internal quotation marks and citations omitted]).

"The 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, supra, at 295). In making this determination, consideration should be given to, 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, which should take into account whether it is likely to occur at a specific time or is likely to be discovered immediately (People v Keindl, supra, at 419; People v Morris, supra, at 296).

Further, while it has been held that a nine-month time frame alleging a noncontinuous act in an accusatory instrument is generally per se unreasonable (see People v Beauchamp, 74 NY2d 639, 641 [1989] [holding that a nine-month time frame is an "excessive interval" despite the People's diligent efforts and the young ages of the victims]; see also Keindl, 68 NY2d at 419[sexual abuse charges spanning 10 months involving crimes against children ranging from ages 8 to 13 were "so excessive on their face that they are unreasonable"]), these determinations were made based on noncontinuous acts, and a bright-line rule has not been adopted (see e.g. People v Watt, 81 NY2d at 775 [five-month time frame was not "per se unreasonable"]). Therefore, as noted in People v Sedlock, "[t]he significantly longer period . . . is a factor to be considered, with 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" (8 NY3d 535, 539 (NY 2007) quoting People v Watt, supra [internal quotations omitted]). In making this determination, the court considers, among other things, "the length of the time span provided by the People and the knowledge the People possess or should acquire with reasonable diligence of the exact or approximate date or dates of the criminal conduct." (People v Watt, supra at 774; People v Keindl, supra, at 419; People v Morris, supra, at 295).

Moreover, this determination must be made in light of the offense charged. In this regard, the Court of Appeals has made an important distinction between charges for continuous and non-continuous offenses (See People v Keindl, supra, at 421). A continuing offense is one "that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (People v Shack, 86 NY2d 529, 540-541 (NY 1995), quoting People v Keindl, supra, at 421); People v Evangelista, 1 Misc 3d 873, 875 (Bronx Co. Crim. Ct. 2003). These offenses may allege time periods that might otherwise be considered "unreasonably excessive" (People v Evangelista, supra; People v Keindl, supra, at 417-418). In making its determination as to whether multiple acts may be charged as a continuing crime, the court must reference the penal statute to determine if the statutory definition of the crime necessarily contemplates a single act (People v Shack, supra; see, People v Keindl, supra, at 421-422; see also, Matter of Johnson v Morgenthau, 69 NY2d 148). The court should also consider the intent of the statute to determine whether the legislative purpose was to prohibit a course of conduct or specific distinct acts (People v Shack, supra; see also, People v Okafore, 72 NY2d 81, 86-87 (NY 1988).

In the instant matter, the factual allegations of the accusatory instrument are separated into two time periods, "TPO 1" and "TPO 2," respectively. In each time period, different charges are alleged and separate conduct is provided as the alleged grounds for the respective charges. When referencing "TPO 1," the complaint alleges "that on or about and between March 1, 2016 at approximately 12:00 AM and December 20, 2016 at approximately 12:10 AM inside of 140 Alcott Place, County of the Bronx, State of New York," the defendant committed the offense of Endangering the Welfare of a Child (Penal Law § 260.10[1]). When referencing "TPO 2," the complaint further alleges that "on or about December 19, 2016 at approximately 11:00 PM inside of 140 Alcott Place, County of Bronx, State of New York," the defendant committed the offenses of Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]).

As noted above, the complaint also clearly separates the allegations used as grounds for [*3]the charges alleged. When referencing the first charge of Endangering the Welfare of a Child (Penal Law § 260.10[1]), the complaint alleges "that on or about and between [March 1, 2016 at approximately 12:00 AM and December 20, 2016 at approximately 12:10 AM], the defendant committed the following acts, in that defendant touched the informant about the body with defendant's hands over her clothing, in that on one occasion during the above time period, defendant touched deponent about the thigh with defendant's hand, and that on another occasion defendant touched informant about the breasts with defendant's hand while standing behind informant, and that on another occasion defendant hugged deponent from behind with his hands around deponent's stomach, causing deponent to feel uncomfortable and alarmed and annoyed. Defendant further states that on the above occasions deponent informed defendant that his conduct made her uncomfortable and that defendant told deponent not to tell anyone." When concerning the remaining charges, the deponent states that "at the above time and place [December 19, 2016 at approximately 11:00 PM inside of 140 Alcott Place, County of Bronx, State of New York] defendant got on top of deponent and touched her vagina with his hand over her clothing, and touched her breasts and buttocks over her clothing with his hands. Deponent further states that the above described conduct caused deponent to feel uncomfortable, to be alarmed an[d] annoyed, and caused her to fear for her physical safety."

The defendant moves to dismiss all counts of the complaint as facially insufficient, alleging that the time period specified in the complaint fails to provide the defendant with adequate notice in order to prepare a defense. In making its determination on the defendant's motion, this court has done a separate analysis for the charges alleged in each time period referenced in the complaint. In doing so, this Court has determined that based on the factual allegations and time period referenced within section "2" and "TPO 2" of the complaint, the charges of Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]), have been plead with sufficient specificity for defendant to adequately prepare a defense.

When referencing the charges above, section "2" and "TPO 2" of the complaint set forth that the alleged incident occurred on December 19, 2016 at 11:00 P.M. inside of 140 Alcott Place, Bronx, New York and further provide the alleged conduct underlying the grounds for the charges sought. Therefore, the defendant was provided with fair notice of the nature of the charges against him, and of the specific date, time and place of the conduct underlying the accusations, "so as to enable him to answer to the charges and to prepare an adequate defense." (see People v Keindl, supra, at 417; People v Morris, 61 NY2d 290, 293; People v Iannone, 45 NY2d 589, 594; People v Bogdanoff, 254 NY 16, 23). As a result, defendant's motion to dismiss, as it pertains to the charges of Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]), on the basis of facial insufficiency is DENIED.

With respect to the remaining charge of Endangering the Welfare of a Child (Penal Law § 260.10[1]), this court has determined that based on the nature of the offense and surrounding circumstances, the charge has been plead with sufficient specificity for defendant to adequately prepare a defense.

Penal Law § 260.10 reads as follows:

A person is guilty of endangering the welfare of a child when:1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health.

In making its determination as to whether the complaint provides sufficient specificity as it relates to this charge, this Court has taken into account the totality of the circumstances concerning the alleged incidents and related charge noted in section "1" and "TPO 1" of the complaint. Notably, as indicated in People v Keindl, "[e]ndangering the welfare of a child is a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (68 NY2d 410, at 422; see, e.g., Cowley v People, 83 NY 464, 472 [NY 1881]). Therefore, because the statutory definition of this crime does not necessarily contemplate a single act, "a defendant may be guilty of this crime by virtue of a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime" (People v Keindl, supra; see also, Cowley v People, supra). As a result, there is a greater tolerance for broader time periods for continuing offenses and the charging instrument may properly allege that the single offense was committed over a significant period of time. (see People v Shack, 86 NY2d 529, 541, 658 NE2d 706, 634 NYS2d 660 [1995]; People v Tomossone, 37 Misc 3d 131[A], [App Term, 2d Dept, 9th & 10th Jud Dists 2012]); People v Sanchez, 84 NY2d 440, 448 [1994]; People v Palmer, 7 AD3d 472, 472 [2004]); (People v Keindl, supra, at 421) (Court held that those counts of the indictment which accused the defendant of endangering the welfare of a child over an approximate two-year period were proper and did not require dismissal).

Here, the deponent was ten years of age at the time of these alleged incidents, which appear to have occurred secretly, at random, and by an adult caretaker that lived in the same house as the deponent. Therefore, although the complaint alleges that the conduct underlying the charge of Endangering the Welfare of a Child occurred over the course of nine months, given the nature of the offense charged, the age of the victim, the number of incidents alleged during the time period, and the fact that time is not a material element of the crime, this Court finds that the complaint provided sufficient specificity for defendant to adequately prepare a defense for the alleged offense. Accordingly, defendant's motion to dismiss the charge of Endangering the Welfare of a Child (Penal Law § 260.10[1]) on the basis of facial insufficiency is DENIED.

Defendant Atkin's motion to dismiss the charges of Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Second Degree (Penal Law § 130.60[2]); Forcible Touching (Penal Law § 130.52[1]); Endangering the Welfare of a Child (Penal Law § 260.10[1]), Sexual Abuse in the Third Degree (Penal Law § 130.55); and Harassment in the Second Degree (Penal Law § 240.26[2]), on the basis of facial insufficiency is DENIED.

This constitutes the Decision and Order of the Court.

Dated: April 10, 2017

Bronx, New York

Bahaati E. Pitt, J.C.C. Footnotes

Footnote 1:A Dunaway hearing is a hearing to determine whether evidence has been seized from an accused in violation of his or her fourth amendment rights as by a search conducted without probable cause. This hearing is based on the U.S. Supreme Court case Dunaway v. New York, 442 U.S. 200 (1979). A Huntley Hearing is a pretrial hearing to review the manner in which the police obtained statements from the defendant. This hearing is based on People v. Huntley, 15 NY2d 72 (1965), which is New York State's application of a U.S. Supreme Court case Jackson v. Denno, 378 US 368 (1964).