People v Kratzert (Philip)

[*1] People v Kratzert (Philip) 2009 NY Slip Op 51343(U) [24 Misc 3d 130(A)] Decided on June 29, 2009 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ
2008-155 OR CR.

The People of the State of New York, Respondent,

against

Philip Kratzert, Appellant.

Appeal from a judgment of the Justice Court of the Town of Wallkill, Orange County (Bonnie Kraham, J.), rendered January 9, 2008. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child and sexual abuse in the third degree.

Judgment of conviction reversed, on the law, accusatory instrument dismissed, and fines, if paid, remitted.

In a felony complaint dated June 11, 2006, the People charged defendant with course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [b]). In November 2006, the Justice Court authorized the dismissal of the complaint (CPL 180.50) and the substitution therefor of an information, dated October 26, 2006, which charged defendant with endangering the welfare of a child (Penal Law § 260.10 [1]) and sexual abuse in the third degree (Penal Law § 130.55), alleging that the acts constituting the offenses were committed "on or about and between the 18th day of April, 1998 and the 17th day of April, 2002." Defendant was convicted of both counts following a jury trial. On appeal, defendant argues that the count of endangering the welfare of a child was time-barred, that trial counsel was ineffective in failing to move to dismiss the count on that ground, and that the remaining count is both duplicitous and lacking the requisite temporal specificity as to when the offenses were committed. We agree.

The count of endangering the welfare of a child was time-barred (CPL 30.10 [2] [c]; People v Scanlon, 52 AD3d 1035, 1037 [2008]; People v Rogner, 265 AD2d 688 [1999]; People v DeLong, 206 AD2d 914, 916 [1994]; cf. CPL 30.10 [3] [f] [applicable to sexual abuse in the third degree]). As there was no waiver or forfeiture of the statute of limitations defense (People v Parilla, 8 NY3d 654, 659 [2007]; People v Mills, 1 NY3d 269, 274 [2003]), trial counsel's failure to move to dismiss the charge on this "clear-cut and completely dispositive" ground constituted "egregious and prejudicial error, rising to the level of ineffective assistance" (People [*2]v Turner, 5 NY3d 476, 481 [2005] [internal quotation marks omitted]).

We find the remaining count duplicitous and lacking temporal specificity, as the People properly conceded in their response to defendant's failed CPL 330.30 motion. Although trial counsel failed to preserve the issues for appellate review, we find the temporal allegations unreasonable on their face (see People v Sedlock, 8 NY3d 535, 539-540 [2007]; People v Beauchamp, 74 NY2d 639, 640 n, 641 [1989]; People v Morris, 61 NY2d 290, 295 [1984]), warranting the count's dismissal "even in the absence of preservation" (People v Rozario, 20 Misc 3d 76, 81 [App Term, 9th & 10th Jud Dists 2008]). Even were we to find otherwise, we conclude, given trial counsel's failure to move pre-trial to dismiss this patently duplicitous count, or to move, prior to deliberations, for dismissal or for an ameliorative instruction with regard to juror unanimity, and in light of the dereliction noted with respect to the endangering the welfare of a child count, that trial counsel's overall representation was less than meaningful (see generally People v Henry, 95 NY2d 563, 565-566 [2000]; cf. People v Wise, 49 AD3d 1198 [2008]).

Accordingly, on the instant facts and circumstances, the judgment of conviction is reversed and the accusatory instrument is dismissed (see People v Turner, 10 AD3d 458, 460 [2004], affd 5 NY3d 476 [2005]).

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur.
Decision Date: June 29, 2009