People v Smiley

[*1] People v Smiley 2010 NY Slip Op 51541(U) [28 Misc 3d 1229(A)] Decided on August 26, 2010 Criminal Court Of The City Of New York, Queens County Koenderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 3, 2010; it will not be published in the printed Official Reports.

Decided on August 26, 2010
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

Wolfgang Smiley, Defendant.



2010QN022872



Attorney for defendant:

Benedict Gullo, Jr.

Attorney for the People:

ADA Erin Fisher

Elisa S. Koenderman, J.

The defendant, Wolfgang Smiley, is charged with Assault in the Third Degree, Penal Law ["PL"] § 120.00(1), Forcible Touching, PL §130.52, Sexual Abuse in the Second Degree, PL § 130.60(2), Endangering the Welfare of a Child, PL § 260.10(1) and Harassment in the Second Degree, PL § 240.26(1). The defendant moves to dismiss the counts of Forcible Touching, Sexual Abuse in the Second Degree, Endangering the Welfare of a Child and Assault in the Third Degree as jurisdictionally and facially deficient. The defendant also moves to dismiss the counts of Forcible Touching, Sexual Abuse in the Second Degree and Endangering the Welfare of a Child as time-barred by the statute of limitations. Because the criminal action against the defendant was commenced within the period of limitation prescribed for each offense, the Court denies the defendant's motion to dismiss on that ground. Nevertheless, the Court dismisses the charges of Forcible Touching and Sexual Abuse in the Second Degree as duplicitous, with leave granted to the People to move to add the appropriate number of counts for each charge based upon the factual allegations of the complaint. The Court upholds the charges of Assault in the Third Degree, Endangering the Welfare of a Child and Harassment in the Second Degree as facially sufficient.

The complaint alleges that the defendant committed the charged crimes on or about and between November 1, 2007 and December 31, 2009. It states that in November 2007, inside xx-xx xxxxx Avenue in Queens County, New York, the defendant gave alcoholic beverages to his daughter, C., and touched her vagina. Thereafter, between January and June of 2008, the defendant again gave alcoholic beverages to his daughter and touched her vagina. During this period, he also grabbed her breasts, squeezed her [*2]buttocks and called her into his room where he exposed his penis to her. His daughter was less than fourteen years old at the time of these incidents. Subsequently, on December 22, 2009, the defendant slapped her in the face and back and shoved her against a wall, causing her to suffer redness and swelling to her face, as well as substantial pain, annoyance and alarm. She was fifteen years old at the time of this last incident.

STATUTE OF LIMITATIONS

The defendant argues that the charges of Forcible Touching, Sexual Abuse in the Second Degree and Endangering the Welfare must be dismissed since they were not brought within the two year period of limitation applicable to misdemeanor prosecutions pursuant to Criminal Procedure Law ["CPL"] § 30.10(2)(c).

Notwithstanding this provision, the period of limitation for the prosecution of a sexual offense defined in Article 130 of the Penal Law "committed against a child less than eighteen years of age . . . shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier" (CPL § 30.10[3][f]).

Forcible Touching and Sexual Abuse in the Second Degree are both sexual offenses defined in Article 130 of the Penal Law (PL §§ 130.52 and 130.60[2]). The complaint alleges that the defendant committed these offenses against his daughter on or about and between November 2007 and December 2009, when she was thirteen and fifteen years old, respectively. Hence, the exception under CPL § 30.10(3)(f) applies to the period of limitation for prosecution of these offenses. To be viable, a criminal action for these offenses must be commenced within two years after the complainant turns eighteen or the offenses are reported to law enforcement or the statewide central register of child abuse and maltreatment, whichever comes first. In their affirmation in opposition to the defendant's motion, the People assert that the incidents underlying these offenses were not reported to the Administration for Children's Services ["ACS"] until April 13, 2010. Additionally, the police reports, which the People provided in response to the defendant's demand for discovery, indicate that the incidents were not reported to the police until that same date. The police reports further indicate that the complainant's date of birth is June xx, 1994 and that she was fifteen years old at the time the incidents were reported. Accordingly, the two year period of limitation for these offenses did not start until April 13, 2010, when the incidents were reported to the police and ACS. The instant criminal action was commenced a mere two days later on April 15, 2010. Accordingly, the defendant's motion to dismiss the charges of Forcible Touching and Sexual Abuse in the Second Degree as time-barred is denied.

Endangering the Welfare of a Child, even where substantially based, as here, upon a pattern of sexual abuse against a child, is not encompassed within the exception to the statute of limitations under CPL § 30.10(3)(f). Therefore, a prosecution for Endangering the Welfare of a Child must be commenced within two years after the commission of the crime (CPL § 30.10[2][c]). Endangering the Welfare of a Child "by its nature may be committed by one act or by multiple acts and readily permits characterization as a continuing offense" (People v Keindl, 68 NY2d 410, 421 [1986]). 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" (id.; see [*3]also People v Simmons, 92 NY2d 829, 831 [1998]; Cowley v People, 83 NY 464, 472 [1881]). In other words, simultaneously coexisting events and circumstances, when taken as a whole, may constitute the crime even if each circumstance, when taken in isolation, might not (see People v Hitchcock, 98 NY2d 586, 592 [2002]; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007]). Here, the defendant is charged with Endangering the Welfare of a Child as a continuing offense, predicated upon his engaging in a pattern of sexually and physically abusive behavior toward his daughter over approximately two years, beginning in November 2007 and ending in December 2009 (see Keindl, 68 NY2d at 421). The instant prosecution, commenced four months after the crime concluded, is well within the two year period of limitation for this offense. The defendant's motion to dismiss this charge as time-barred therefore also is denied.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). Where the factual allegations contained in an information "give an accused sufficient notice 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]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]).

To be facially sufficient, each count of an information must charge only one offense (see CPL § 200.30; see People v Todd, 119 Misc 2d 488, 489-490 [Crim Ct, NY County 1983]; see also People v Mitchell, 151 Misc 2d 208, 211 [Crim Ct, Kings County 1991]). The statutory bar against duplicitous counts applicable to indictments is incorporated by reference into CPL § 100.15, which prescribes the form and content of an information (see Todd, 119 Misc 2d at 489). The bar against duplicitous counts reflects the "general policy of the law that aims to apprise a person charged with a crime of the exact nature of the case that the People will attempt to prove against him, to the end that he may make full preparation to meet it" (People v Klipfel, 160 NY 371, 374 [1899]; see also Todd, 119 Misc 2d at 489). "Charging more than one crime in a single count violates this basic [common law] principle" (Todd, 119 Misc 2d at 490). The prohibition against duplicity not only furthers adequate notice to a defendant and prevents double jeopardy, it ensures the reliability of a unanimous verdict (see Keindl, 68 NY2d at 417). Therefore, where an information alleges a crime which is made out by the commission of one act, that must be the only act alleged in the count (see id.). In other words, acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (see id.). Where one count alleges the commission of a particular offense occurring repeatedly [*4]during a designated period of time, that count encompasses more than one offense and is duplicitous (see id.).

A count is not duplicitous if it alleges that the defendant committed the offense by more than one means (see Schad v Arizona, 501 US 624, 631 [1991]). Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, he is not entitled to a unanimous verdict on the precise manner in which the act was committed (see id. at 629-631). "Different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line" (id. at 631-632). Thus, a count may allege that a defendant committed a particular offense by one or more specified means (see id. at 631). For example, a murder count charging that the defendant caused the victim's death by shooting and drowning him is not duplicitous since the means by which the defendant caused the death is immaterial (id. at 631). Similarly, due process does not require that a jury separately consider the theory that the defendant is guilty of murder as the shooter or as an accomplice who commanded the killing since "the two choices for the jury [are] not so different that they [amount] to any more than alternatives to a common end" (People v Mateo, 2 NY3d 383, 407 [2004]). Indeed, the means of commission are morally equivalent (see id. at 408).

Here, the defendant is charged with one count each of Forcible Touching (PL § 130.52) and Sexual Abuse in the Second Degree (PL § 130.60[2]), occurring on or about and between November 1, 2007 and December 31, 2009. Nevertheless, the facts alleged in the complaint describe more than one occurrence of each offense during the designated time period [FN1].

A person is guilty of Sexual Abuse in the Second Degree when he "subjects another person to sexual contact and when such other person is less than fourteen years old" (PL [*5]§ 130.60[2]). Sexual contact is "any touching of the sexual or other intimate parts of a person . . . for the purpose of gratifying sexual desire of either party" (PL § 130.00[3]). Intent may be inferred from a defendant's overt act and its natural consequences, as well as from his conduct and the surrounding circumstances (see People v Bracey, 41 NY2d 296, 300-301 [1977]). Here, the complaint alleges that on two occasions, once in November 2007 and again between January and June of 2008, the defendant touched his thirteen year old daughter's vagina after providing her with alcohol. The complaint also alleges that during the latter time period the defendant separately grabbed the complainant's breasts and squeezed her buttocks, and that on a different occasion he called her into his room and exposed his penis to her. The defendant's actions under the circumstances alleged, where he supplied the complainant with an illegal, mind-altering substance before touching her and later showed her his penis, provide reasonable cause to believe that the defendant touched the sexual or intimate parts of the complainant with intent to gratify his sexual desire on four occasions.

A person is guilty of Forcible Touching when he "intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire" (PL § 130.52). Forcible Touching "includes squeezing, grabbing or pinching" (id.). The defendant's actions in grabbing the complainant's breasts and squeezing her buttocks, causing her pain, considered within the context of his entire alleged pattern of sexually and physically abusive behavior against the complainant, including slapping and shoving her on a subsequent date, provide reasonable cause to believe that the defendant forcibly touched her sexual or intimate parts with intent to degrade or abuse her, as well as to gratify his sexual desire, on two occasions.

Although the complaint alleges four occurrences of Sexual Abuse in the Second Degree and two occurrences of Forcible Touching in the factual part, it charges only one count of each offense in the accusatory part. Because the single counts of Sexual Abuse in the Second Degree and Forcible Touching each encompass more than one offense occurring during the designated time period, the counts are duplicitous and must be dismissed. Following dismissal of the defective counts, the People are granted leave to amend the remaining information pursuant to CPL § 100.45(3) to add the appropriate number of counts of each offense supported by the factual allegations [FN2].

In contrast, the charge of Endangering the Welfare of a Child is facially sufficient. The defendant's course of conduct toward his teenage daughter over the two year period charged - including repeatedly providing alcohol to her and touching her vagina; grabbing her breasts and squeezing her buttocks; exposing his penis to her; and slapping her on her face and back and shoving her against a wall, causing her to suffer substantial pain, annoyance and alarm - demonstrates that he "knowingly act[ed] in a manner likely to be [*6]injurious to the physical, mental or moral of a child less than seventeen years old" (CPL § 260.10[1]; see Keindl, 68 NY2d at 421-422).

Finally, the first-party facts alleged b y the complainant [FN3] that the defendant slapped her on her face and back and shoved her against a wall, causing her to suffer redness and swelling to her face as well as substantial pain, viewed in the light most favorable to the People and accepted as true (see People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]), provide reasonable cause to believe that the defendant intentionally caused physical injury to her. The subjective allegation that the complainant suffered substantial pain is supported by the objective indication that she sustained redness and swelling to her face, "an experience that would normally be expected to bring with it more than a little pain" (People v Chiddick, 8 NY3d 445, 447 [2007]). Accordingly, the charge of Assault in the Third Degree is facially sufficient. While the People still must satisfy their burden of proof beyond a reasonable doubt as to this count at trial, their much lower burden at the pleading stage has been met.

Remaining Motions

The defendant's motion to suppress statements is denied since the People have not served notice of their intent to offer at trial evidence of a statement made by the defendant to a public servant (see CPL § 710.30[1][a]).

Pursuant to Criminal Procedure Law § 240.43, the People are directed to notify the defendant of any prior uncharged criminal, vicious or immoral conduct which the People intend to use at trial to impeach the defendant's credibility immediately prior to the commencement of jury selection.

A Sandoval ruling is reserved for the trial court.

The People are reminded of their continuing obligation to furnish the defendant with exculpatory evidence pursuant to Brady v Maryland, 373 US 83 [1963].

This constitutes the decision and order of the Court.

Dated:August 26, 2010

Queens, New York

_________________________

Elisa S. Koenderman, JCC [*7]

Footnotes

Footnote 1:

The defendant additionally argues that the designated time period for these offenses is so excessive on its face that it is unreasonable and requires dismissal of the charges. Although an accusatory instrument may allege time in approximate terms, it must "set forth a time interval which reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation, so as to enable the defendant to prepare a defense and to use the judgment against further prosecution for the same crime" (People v Watt, 81 NY2d 772, 774 [1993]). To determine whether sufficient specificity to adequately prepare a defense has been provided, the court must consider "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 . . . the age and intelligence of the victim and other witnesses; the nature of the offense or offenses, including whether they are likely to be discovered immediately and whether there is a criminal pattern; and all other surrounding circumstances" (id. at 774; see also People v Morris, 61 NY2d 290, 296-297 [1984]).

Here, the People narrowed the incidents underlying these offenses to two separate time periods. The complaint alleges that the defendant committed one act of Sexual Abuse in November 2007 and three acts of Sexual Abuse, two of which also constitute acts of Forcible Touching, between January and June 2008. The complainant was less than fourteen years old at the time that the defendant, her biological father, allegedly began a criminal pattern of sexual behavior against her. By their nature, the offenses charged are committed in secrecy, outside the presence of witnesses. Moreover, the complainant did not disclose the alleged abuse until April 13, 2009, approximately 2 ½ years after the first incident. Given the complainant's age, the relationship of the perpetrator to her, the ongoing pattern of criminal conduct and the delay in disclosure, the time intervals alleged are not so excessive as to be unreasonable. The defendant's motion to dismiss the offenses of Sexual Abuse in the Second Degree and Forcible Touching on this ground therefore is denied.

Footnote 2:

CPL § 100.45(3) permits the court "at any time before the entry of a plea of guilty to or the commencement of a trial of an information . . . upon application of the people and with notice to the defendant and opportunity to be heard" to order the amendment of the accusatory part of the information by the "addition of a count charging an offense supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it."

Footnote 3:

A supporting deposition from the complainant was filed and served off calendar on April 21, 2010.