People v LaPage

[*1] People v LaPage 2008 NY Slip Op 50270(U) [18 Misc 3d 1133(A)] Decided on February 11, 2008 County Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2008
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Gerald P. LaPage, Defendant.



2007-128-I



Julie A. Garcia, Esq., Essex County District Attorney, (Ellen C. Schell, Esq., of counsel), Elizabethtown, New York.

Peter A. Dumas, Esq., Malone, New York, for the defendant.

Richard B. Meyer, J.

The defendant is charged by a ten-count indictment with the alleged commission of various sex offenses including two counts each of the crimes of rape in the first degree (Penal Law §130.35[3]) and criminal sexual act in the first degree (Penal Law §130.50[3]), class B violent felonies, and one count each of sexual abuse in the first degree (Penal Law §130.65[3]), a class D violent felony, sexual abuse in the second degree (Penal Law §130.60[2]), a class A misdemeanor, [*2]sexual abuse in the third degree (Penal Law §130.55), a class B misdemeanor, rape in the third degree (Penal Law §130.25[2]), a class E felony, endangering the welfare of a child (Penal Law §260.10[1]), a class A misdemeanor, and course of sexual conduct against a child in the first degree (Penal Law §130.75[1][b]), a class B violent felony. The charges contained in the first nine counts are alleged to have occurred on unspecified dates "sometime in the Fall" of 1997, 2002 and 2006, as well as "sometime in the Summer of 2004". The tenth count charging course of sexual conduct with a child is alleged to have taken place during the six year "time period of the Fall of 1997 and March 5, 2003".

The defendant filed an omnibus motion seeking, inter alia, dismissal of the indictment on the grounds of insufficient evidence and jurisdictional defect (CPL §210.20[1][a], §210.25), and for inspection of the grand jury minutes. After review of the grand jury minutes, the indictment and the prosecution's bill of particulars, this Court reserved decision, pending a hearing at which the prosecution would be allowed (1) to submit evidence detailing when law enforcement first became aware of the allegations, the investigatory efforts, if any, employed by the prosecution "to more accurately determine specific dates as points of reference with respect to the commission of these various acts" (People v. Keindl, 68 NY2d 410, 421, 509 NYS2d 790, 795, 502 NE2d 577, 582), and (2) to supply relevant information concerning, among other things, the intelligence of the victim or other witnesses, the ability of the victim to particularize the date, time and surrounding circumstances of each of the alleged offenses, and whether or not any of the offenses were likely to occur at a specific time or be discovered immediately (People v. Morris, 61 NY2d 290, 296, 473 NYS2d 769, 773, 461 NE2d 1256, 1260).

Prior to the hearing, the prosecution filed an amended bill of particulars alleging that the alleged victim "spent many, many weekends at the defendant's home" and that the "sexual abuse by the defendant . . . occurred almost every weekend" that she was there over a ten-year period beginning when she was seven years old. It is also asserted that the defendant, the alleged victim's maternal grandfather, threatened her and her family with harm if she ever disclosed what he did to her and that out of fear she did not reveal his conduct until 2007 when she was seventeen years old. Some additional information is provided from that contained in the original bill of particulars relative to the specific conduct alleged to have been committed, but not as to the time when the acts purportedly occurred.

At the hearing held on January 22, 2008, no witnesses or documentary evidence were produced by the prosecution. Instead, the assistant district attorney advised that she did try to get the alleged victim to narrow the time frames of the various acts alleged, but that the alleged victim was unable to be more specific because of the trauma suffered by the victim from these acts and because the defendant engaged in similar criminal sexual conduct almost every weekend over the ten-year period covered by the indictment, thereby making it impossible for the victim to identify a specific date for the act charged in each count. Moreover, the assistant district attorney indicated that an expert would testify at trial that victims of sexual abuse suffering from post-traumatic stress disorder are unable to recall details of the criminal events with specificity. It was also revealed that the alleged victim here has not been examined by any expert or diagnosed with such disorder. [*3]

It is on this record that this Court must determine whether one or more counts in the indictment, as amplified by the amended bill of particulars, relating to the time of the offenses charged may, under the circumstances here, violate the defendant's right to be apprised with clearness and reasonable certainty of "the time and place and nature and circumstances of the offense" (United States v. Cruikshank, 92 US 542, 566, 23 LEd 588; see also People v. Bogdanoff, 254 NY 16, 24, 171 NE 890; People v. Iannone, 45 NY2d 589, 412 NYS2d 110, 384 NE2d 656; People v. Morris, supra ; People v. Keindl, supra ; People v. Watt, 81 NY2d 772, 593 NYS2d 782, 609 NE2d 135; People v. Sanchez, 84 NY2d 440, 618 NYS2d 887, 643 NE2d 509).

The form and content of an indictment are set forth in statute (CPL §200.50), and include the requirements that each count contain a "plain and concise factual statement . . . supporting every element of the offense charged and the defendant's . . . commission thereof with sufficient precision to clearly apprise the defendant . . . of the conduct which is the subject of the accusation" (CPL §200.50[7]) and that the offense charged was "committed on, or on or about, a designated date, or during a designated period of time" (CPL §200.50[6]). An indictment must "charge the time and place and nature and circumstances of the offense with clearness" (United States v. Cruikshank, 92 US 542, 566, 23 LEd 588) and reasonable certainty (id., at 568, 23 LEd 588; see also People v. Bogdanoff, supra ). A criminal indictment serves three purposes. First, it provides "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense" (People v. Iannone, 45 NY2d 589, 594, 412 NYS2d 110, 384 NE2d 656; see also, People v. Morris, 61 NY2d 290, 293, 473 NYS2d 769, 461 NE2d 1256; People v. Keindl, 68 NY2d 410, 416, 509 NYS2d 790, 502 NE2d 577). Second, the indictment provides "some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution" (People v. Iannone, supra , 45 NY2d at 594, 412 NYS.2d 110, 384 NE2d 656 [citing Russell v. United States, 369 US 749, 770, 82 SCt 1038, 1050-51, 8 LEd2d 240]). Finally, an indictment protects a criminal defendant from prosecution at another time for the same offense. Therefore, "an 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 prosecutions for the same offense" (People v. Keindl, supra , 68 NY2d at 416, 509 NYS2d 790, 502 NE2d 577; see also, People v. Morris, supra , 61 NY2d at 293, 473 NYS.2d 769, 461 NE2d 1256; People v. Iannone, supra , 45 NY2d at 595, 412 NYS2d 110, 384 NE2d 656).(People v. Sanchez, 84 NY2d 440, 445, 618 NYS2d 887, 890, 643 NE2d 509, 512).

While an indictment inadequate on its face may be rendered adequate by a bill of particulars (People v. Morris, supra at 295, 473 NYS2d at 772, 461 NE2d at 1259), "[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 the relevant circumstances" (id.). [*4]

Where time is not an essential element of the crime charged, the date or designated period may be alleged in approximate terms (People v. Watt, supra at 774, 593 NYS2d at 783, 609 NE2d at 136). Also, for an indictment charging a single act offense "a reasonable time period will generally be shorter than that which would be acceptable to charge a continuing offense, which by its nature may be committed over a broad period of time" (People v. Sanchez, supra at 448, 618 NYS2d at 891, 643 NE2d at 513).

Here, none of the charges involve time as an essential element. The first nine counts, charging various acts of rape, sexual abuse, criminal sexual act and endangering the welfare of a child, all involve single acts, while the tenth count charging course of sexual conduct against a child is a continuing crime. According to the allegations in the indictment and amended bill of particulars, the victim here was 7 years old at the time of the first alleged incident "sometime in the Fall of 1997" upon which the first three counts of the indictment are premised, and twelve years old at the time of the alleged occurrence "sometime in the Fall of 2002" upon which counts four, five and six are based [FN1]. Considering the age of the alleged victim at the time of these offenses and the claim that she did not reveal the crimes for ten years after they are claimed to have occurred because she feared the defendant would make good on his threats to harm her family, the indictment is sufficient as to counts one, two, three, four, five and six (see People v. Smith, 272 AD2d 713, 710 NYS2d 648, leave to appeal denied 95 NY2d 871, 715 NYS2d 226, 738 NE2d 374; People v. Keefer, 262 AD2d 791, 692 NYS2d 233, leave to appeal denied 94 NY2d 824, 702 NYS2d 595, 724 NE2d 387; People v. Green, 250 AD2d 143, 683 NYS2d 597, leave to appeal denied 93 NY2d 873, 689 NYS2d 435, 711 NE2d 649; People v. Gutkaiss, 206 AD2d 584, 614 NYS2d 462, leave to appeal denied 84 NY2d 936, 621 NYS2d 533, 645 NE2d 1233; People v. Bolden, 194 AD2d 834, 598 NYS2d 603, leave to appeal denied 82 NY2d 714, 602 NYS2d 811, 622 NE2d 312).

Similarly, the tenth count charging the continuous crime of course of sexual conduct against a child in the first degree, allegedly occurring "during the time period of the Fall of 1997 and March 5, 2003", is sufficient (People v. McLoud, 291 AD2d 867, 737 NYS2d 216, leave to appeal denied 98 NY2d 678, 746 NYS2d 467, 774 NE2d 232; People v. Colf, 286 AD2d 888, 730 NYS2d 749, leave to appeal denied 97 NY2d 655, 737 NYS2d 56, 762 NE2d 934). The defendant's double jeopardy rights are automatically protected by Penal Law §130.75(2) which provides, "A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section."

However, count seven, charging the defendant with sexual abuse in the third degree for acts allegedly occurring "sometime in the Summer of 2004" when the alleged victim was fourteen years old, and counts eight and nine, charging rape in the third degree and endangering the welfare of a child for acts claimed to have occurred "sometime in the Fall of 2006" when the alleged victim was [*5]sixteen years old, must be dismissed. No evidence has been submitted indicating the extent to which efforts were made "to more accurately determine specific dates as points of reference with respect to the commission of these various acts" (People v. Keindl, supra at 420, 509 NYS2d at 794, 502 NE2d at 581), or establishing that from the Fall of 2004 to date the victim here was incapable "of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist . . . in narrowing the time spans alleged" (id.). Children ages fourteen and older have been held to be capable of doing so (see People v. Aaron V., __ AD3d __, __ NYS2d __ [2008 WL 275191];People v. Evangelista, 1 Misc 3d 873, 771 NYS2d 791). Therefore, as to the charges contained in those counts "the child in this case, although of tender years, appears to have been old enough to parse the various acts within the time spans with more particularity" (Keindl, supra at 421, 509 NYS2d at 795, 502 NE2d at 582).

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C. Footnotes

Footnote 1:Counts one and four charge the defendant with rape in the first degree (Penal Law §130.35[3]), a class B violent felony; counts two and five charge him with criminal sexual act in the first degree (Penal Law §130.50[3]), a class B violent felony; count three charges sexual abuse in the first degree (Penal Law §130.65[3]), a class D violent felony; and count six charges sexual abuse in the second degree (Penal Law §130.60[2]), a class A misdemeanor.