People v Hackett

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[*1] People v Hackett 2004 NY Slip Op 50281(U) Decided on April 16, 2004 City Court Of Mount Vernon 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2004
City Court Of Mount Vernon




Docket # 04-0297

Gregory D. Harmon, Esq. Attorney for Defendant 208 East 163rd Street

Bronx, New York 10451


The defendant, charged with one count of sexual misconduct, makes this omnibus motion seeking: 1) to compel discovery and a bill of particulars, 2) dismissal of the accusatory instrument in the interest of justice, 3) a Mapp-Dunaway hearing based on his assertion of a lack of probable cause for his arrest, 4) suppression of statements, 5) a Sandoval hearing, and 6) a reservation of rights to make further motions as necessary.

Since the People consent to open file discovery, the defendant's motion for an order compelling the People to comply with discovery requests is denied. To the extent any specific requests are not met by the People, the defendant may renew his motion with respect to such discovery, within the parameters of CPL article 240.

The defendant also requests a bill of particulars pursuant to CPL 200.95. The People oppose the request, contending that there is ample specificity of the crime charged in the accusatory instrument and the People's Affirmation in Opposition.

The court finds the accusatory instrument is sufficiently detailed to apprise the defendant of the particulars of the crime charged. The function of a bill of particulars is to define more specifically the crime charged, or in other words, to clarify the pleading, not to serve as a discovery device (People v Davis, 41 NY2d 678 (1977); People v Kyoung Ja Choi, 259 AD2d 423 (1st Dept 1999)). The defendant's motion for a bill of particulars is therefore denied.

The defendant further moves to dismiss the charges in the interest of justice. The sexual misconduct charge against the seventeen-year-old defendant (DOB 12/27/86) stems from an incident on January 22, 2004, where he is alleged to have engaged in sexual intercourse with his fifteen-year-old girlfriend (DOB 5/1/88), without her consent by reason of her age. He seeks dismissal of the charge on the bases that the sexual relationship was consensual, he is less than a year and a half older than the complainant, and he has no criminal history or prior arrest.

Criminal Procedure Law § 170.40 sets forth the factors to be considered in determining the appropriateness of a dismissal in the interest of justice. A dismissal in the interest of justice is required when "some compelling factor, consideration or circumstance" exists "clearly demonstrating that conviction or prosecution of the defendant ... would constitute ... injustice" [*2](See CPL § 170.40). Dismissal should be

" 'exercised sparingly' and only in that 'rare' and 'unusual' case where it 'cries out for fundamental justice beyond the confines of conventional considerations" (People v Belge, 41 NY2d 60, 62 (1976); People v Howard, 151 AD2d 253, 256 (1st Dept 1989)). The Court finds defendant's contention that his fifteen year-old girlfriend consented to having sex with him, without merit. The statute clearly provides that a female, less than seventeen years of age, is incapable of consenting to engage in sexual intercourse by reason of her age (P.L. 130.05(3)(a); 130.20(1)). Similarly, the Court is not persuaded by the defendant's argument that he was less than a year and a half older than the alleged victim. Unlike the male defendants in Matter of Jessie C., 164 AD2d 731, 736 (4th Dept. 1991) and People v M.K.R, 166 Misc2d 456 (Justice Ct. of Village of Fleischmanns, 1995), cases on which defendant relies for the proposition that a mere one year age difference between the defendant and the female participant is harmless, the defendant, at seventeen years-old, was at an age recognized under the Penal Law as capable of consenting to engage in sexual intercourse (P.L. 130.05(3)(a)).

The Court also finds the fact that the defendant may have had no prior criminal record and an exemplary background, insufficient to justify a dismissal in the interest of justice (People v Diggs, 125 AD2d 189, 191 (1st Dept. 1986)). Finally, the court notes that the purpose of the sexual misconduct statute was enacted to cover the fact situation alleged to have occurred here. According to the Commission Staff Notes to CLS Penal Law § 130.20, sexual misconduct covers a fact situation formerly constituting statutory rape, where the victim is over the age of 14 but under 17 years and the defendant is under 21 years of age, the young defendant does not force the victim into committing the act, and the victim is not suffering from any physical or mental infirmity. In consideration of the all the statutory factors set forth in CPL 170.40, the court finds that dismissal in the interest of justice is not warranted under these circumstances.

Based upon the factual allegations raised in the defendant's motion papers, a Dunaway hearing is granted on the issue of whether probable cause existed for the defendant's arrest (People v Mendoza, 82 NY2d 415 (1993)). Since there is no allegation that any property was seized from the defendant, his motion for a Mapp hearing is denied.

The defendant also moves to suppress the statement made to police, as set forth in the CPL 710.30 notice, as involuntarily made. The defendant's motion is granted to the extent that a Huntley hearing shall be held on the voluntariness of the noticed statement.

The motion for a Sandoval hearing is granted, and is to be renewed before the trial Judge.

The provisions of CPL 255.20 are controlling with respect to any further pre-trial motions the defendant wishes to make. The defendant's motion for a reservation of rights to make further pre-trial motions is therefore denied.

This constitutes the Decision and Order of this Court.

Dated:April 16, 2004

Mount Vernon, New York [*3]


Associate City Judge of Mount Vernon

To:Westchester County District Attorney

Mount Vernon branch

Gregory D. Harmon, Esq.

Attorney for Defendant

208 East 163rd Street

Bronx, New York 10451

Decision Date: April 16, 2004