People v Park

[*1] People v Park 2013 NY Slip Op 51773(U) Decided on October 25, 2013 Criminal Court Of The City Of New York, Queens County Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2013
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

George Park, Defendant.



2013QN020596

Michelle A. Armstrong, J.

The defendant moves, by Omnibus Motion dated August 28, 2013, for the following relief: (1) a Bill of Particulars; (2) Discovery; (3) Dismissal of the Accusatory Instrument as Facially Insufficient; (4) Dismissal of the First and Second Counts of the Accusatory Instrument for violating his State and Constitutional Due Process rights based on a lack of fair notice of charges against him; [*2](5) Suppression of Statements Made to Private Individuals; (6) Preclusion of Un-Noticed Statement or Identification Evidence; (7) Suppression of Statements Made to Law Enforcement Personnel; (8) Suppression of Evidence resulting from the Unlawful Seizure of the Defendant; and (9) Reservation of Rights.

BILL OF PARTICULARS

The People are directed to re-file, and serve upon the defendant, a revised Bill of Particulars in compliance with the Order of this Court; and to the extent required by Criminal Procedure Law Section 200.95 within 30 days of the date of this Order.

DISCOVERY/BRADY MATERIAL

The People are ordered to provide discovery to the extent required by Criminal Procedure Law Section 240.20 and not provided in the People's Affirmation in Opposition. In addition, the defendant has made a general request seeking the disclosure of Brady material. The People are reminded of their continuing Brady obligations (see Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 [2006]).

FACIAL INSUFFICIENCY

The defendant stands charged with three (3) counts of Aggravated Harassment in the Second Degree under separate subsections of the statute (Penal Law §§ 240.30[1][a], 240.30[1][b], 240.30[2]); and one count of Harassment in the Second Degree (Penal Law §§ 240.26). The accusatory instrument alleges that between November 11, 2011 at 12:00 p.m., and April 3, 2013 at 1:00 p.m., inside of 67-44 164 Street, 6F, County of Queens, Deponent (Det. Robert Alartosky):

[I]s informed by the complainant, Michael Carey, that between the above mentioned dates and times, while in the County of Queens, he received numerous threatening phone calls from the defendant, George Park, wherein the defendant stated, the complainant was a dead man, that he knew where the complainant's children went to school, that he was going to sexually abuse the complainant's wife and that he was going to kill the complainant.

Deponent is further informed by the complainant that the above-mentioned phone calls occurred every few weeks, and that many of the phone calls were individuals other than the defendant who threatened to make him pay for laying off the defendant.

Deponent is further informed by the complainant that the above-mentioned actions of the defendant caused him annoyance and alarm.

Deponent is further informed by the complainant that the above-mentioned phone calls made by the defendant served no legitimate purpose of communication.

The defendant raises two issues in support of his claim that the accusatory instrument is defective. First, he posits that the factual allegations attributing some of the telephone calls directly to the defendant and some to other individuals purportedly calling on behalf of the defendant are defective, in that they do not specify which calls were allegedly made by the defendant and which are attributable to others. Second, the defendant urges that the time period of approximately 17 months, as alleged in the accusatory instrument, is unreasonable and fails to adequately provide defendant with fair notice of the charges against him such that he can prepare a defense. [*3]

Under New York law, a person commits the Class A Misdemeanor of Aggravated Harassment in the Second Degree when with intent to harass or threaten another person: the defendant communicates with such person, anonymously or otherwise, by telephone. . .in a manner likely to cause annoyance or alarm (PL § 240.30[1][A]); or causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone. . .in a manner likely to cause annoyance or alarm (PL § 240.30[1][B]); or with intent to harass, annoy, threaten, or alarm another person, makes a telephone call, whether or not a conversation ensued, with no purpose of legitimate communication (PL § 240.30[2]).

In criminal cases, the essential function of the charging instrument is to provide defendant with full and fair notice of the nature and cause of the accusation(s) against him (U.S. Const., 6th Amend.; NY Const, Art I § 6). To meet Federal and State Constitutional notice requirements, an accusatory instrument must include the time, place, nature and circumstances of the occurrence, with sufficient clarity, that defendant is afforded a fair opportunity to answer and defend against the charges "with all reasonable knowledge and ability;" and further to protect an accused from double jeopardy by identifying, with sufficient specificity, the crime for which defendant is to be tried before a Petit Jury (People v. Sedlock, 8 NY3d 535 [2007]); People v. Kneidl, 68 NY2d 401, 417 [1986]); People v. Morris, 61 NY2d 290, 295 [1984]; People v. Watts, 81 NY2d 772, 774 [1983]; People v. Boyette, _____ NYS2d ____, 2013 NY Slip Op. 23314, [App. Term, 9th & 10th Jud Dists 2013].

Generally, lack of a precise date or time in an accusatory instrument is not a fatal defect unless time is an essential element of the crimes charged therein (Id.). However, it is error of jurisdictional significance to plead an overly broad duration of time in an accusatory instrument such that it renders a defendant's ability to answer the charges and prepare a defense effectively impossible (People v. Boyette, supra; People v. Beauchamp, 74 NY2d 639, 641 [1989]). The standard for determining whether the time interval set forth in the pleadings serve to satisfy the notice requirements of the Federal and State Constitutions is one of reasonableness and must be assessed on a case-by-case basis (Sedlock, supra; Kneidl, supra; Morris, supra, at 296; Watts, supra, at 774). In this context, reasonableness and fairness require that the alleged date and time of the offense be pled with adequate specificity, to the best of the prosecutor's knowledge, and after a reasonably thorough investigation has been undertaken to determine the same (Sedlock, supra; Morris, supra, at 296).

The Court of Appeals recognized that in certain cases, the time span alleged in the accusatory instrument is so excessive on its face that the pleadings are per se unreasonable (See People v. Beauchamp, supra [an accusatory instrument charging a non-continuous crime occurring over a 9 month interval is per se unreasonable]; People v. Kneidl, supra [accusatory instrument alleging non-continuous sex abuse and sodomy charges of minor children over 10, 12, and 16 month time spans held so excessive on its face that it is per se unreasonable]. In other cases, the longer time intervals may or may not be unreasonable depending on a review of relevant circumstances (People v. Sedlock, supra [accusatory instrument alleging multiple acts of forcible touching over a 7 month period held unreasonable under the circumstances]; People v. Morris, supra [pleadings alleging sexual abuse of young girls over 24 day period was reasonably precise under the circumstances]; People v. Watts, supra [court found accusatory instrument charging rape, sodomy, and continuous crime of endangering child welfare over a 9 month time interval, subsequently augmented by a bill of particulars narrowing time span to a 5 month interval, not per se unreasonable; and remitted to lower court for complete analysis of the surrounding circumstances]). [*4]

A continuous crime, by its very nature, is one that may be committed by a single act or by multiple acts over a period of time (People v. Sanchez, 84 NY2d 440, 448 [1994]; People v. Boyette, _____ NYS2d ____, NY Slip Op. 23314, [App. Term, 9th & 10th Jud Dists 2013]). As such, the Courts generally afford accusatory instruments charging continuous offenses greater tolerance for longer time intervals in the pleadings than for non-continuous crimes (People v. Shack, 86 NY2d 529 [1995][accusatory instrument alleging aggravated harassment over a 6 month period held reasonable under the circumstances]; Sanchez, supra, at 667[accusatory instrument alleging 5 yr interval for criminal impersonation of an FBI agent deemed a continuous crime, and held reasonable under the circumstances]; People v. Palmer, 7 AD3d 472,778 NYS2d 144 [1st Dept 2004][3½ year period involving charges of a course of sexual misconduct against a child deemed reasonable under the circumstances]; Boyette, supra [charging instrument alleging menacing and harassment charges specifying approximately ten occurrences over a 7 year time interval held unreasonable under the circumstances]; People v Tomassone, 37 Misc 3d 131(A), 971 NYS2d 360 [App Term, 9th & 10th Jud Dists 2012][harassment charges alleged over 7 day period held to be reasonable]; Cf, People v. Rozario, 20 Misc 3d 76, 864 NYS2d 674 [App Term, 9th & 10th Jud Dists 2008][pleadingsalleging harassing phone calls over a 13 month period, subsequently narrowed by a supporting deposition to an 8 month interval, held not per se unreasonable]).

The Court of Appeals, in Shack, Sanchez, and Watts, seemingly implies that the per se unreasonable standard of review is inapplicable to the brevity of time periods pled in accusatory instruments charging continuous crimes. Rather, in determining whether such broad time intervals pass Constitutional muster, in the context of continuous crimes, a court must balance whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (See, People v. Sanchez, supra; People v. Boyette, supra). In this regard, longer time intervals involving continuous crime cases must be assessed with proportionately heightened scrutiny in tandem with other key relevant factors, including:

1.The age and intelligence of the victim and other witnesses;

2.The surrounding circumstances;

3.The nature of the offense(es), including whether it is likely to occur at a specific time, be discovered immediately, and/or whether there is a criminal pattern;

4.The knowledge that the People possess or should acquire with reasonable diligence of the exact or approximate date(s) of the crime;

5.The length of the alleged period of time in relation to the number of individual criminal acts alleged;

6.The passage of time between the alleged time intervals for commission of crime and defendant's arrest;

7.The ability of the complainant or victim to particularize date(s) and time(s) of the alleged transaction or offense.

(People v. Morris, 61 NY2d at 295; People v. Sedlock, 8 NY3d at 539; People v. Watts, 81 NY2d at 774-775). Defendant avers that the 17 month time span alleged in this case violates his Constitutional right to full and fair notice of the charges against him. To be clear, the instant accusatory instrument charges defendant with Aggravated Harassment counts which, by its very nature, constitutes a continuous crime (People v. Shack, 86 NY2d at 667; People v. Kneidl, 68 NY2d at 420).

Against this legal backdrop, I find defendants arguments persuasive. Given the continuous offense characterization, the 17 month interval, by itself, is not unreasonably excessive. However, [*5]such a broad time frame combined with the overall vagueness of the pleadings renders such time period unreasonable under the circumstances. Here, the complaint accuses defendant of making an unspecified number of phone calls and/or causing other unknown and unidentified persons to make an unspecified number of phone calls to the complainant over a period of 17 months. This court may reasonably infer, based on the facts alleged, that the complaining witness is neither a minor child or particularly credulous such that he/she is incapable of providing more specific information regarding the approximate date(s) or narrower time intervals of alleged individual phone calls received; and whether individual occurrences where committed by defendant directly or others acting on defendant's behalf. Moreover, at this stage of the criminal proceedings, the People have had sufficient time to conduct a reasonably thorough investigation; and should have obtained more particularized information regarding the approximate date(s) and time(s) of the alleged individual criminal acts. Despite such opportunity, the People's response to defendant's request for a Bill of Particulars merely repeats the vague allegations contained in the original accusatory instrument. Under these circumstances, the pleadings fail to adequately specify, to the best of the prosecutor's knowledge, the alleged date(s) and time(s) of the offenses charged. As such, I find that the accusatory instrument is unreasonably broad and fails to afford the defendant a full and fair opportunity to defend against the charges against him.

Accordingly, the People are directed to re-file and serve upon defendant, a sufficiently particularized Bill of Particulars to augment the original pleadings, which adequately informs the defendant of the approximate date(s), time(s), and nature of the individual criminal acts alleged to have been either committed or caused by him during the 17 month time interval alleged in the complaint. In light of the Court's ruling, defendant's motion to dismiss the accusatory instrument for facial insufficiency is DENIED with leave to renew should the People fail to comply with the Court's directive within 30 days from the date of this Order.

PRECLUSION OF STATEMENT/IDENTIFICATION EVIDENCE

The defendant has moved for preclusion of un-noticed statement evidence but the People declare, by Affirmation in Opposition, that they are unaware of any statements attributable to the defendant. Accordingly, the defendant's motion is denied as moot, without prejudice.

Similarly, the defendant has moved for preclusion of identification evidence but the People have neither responded to this portion of the defendant's motion, nor have they filed statement notice pursuant to Criminal Procedure Law Section 710.30(b). Therefore, the defendant's motion is denied as moot, without prejudice.

SUPPRESSION OF EVIDENCE

The defendant moves to suppress all evidence resulting from his unlawful seizure. The People declare, by Affirmation in Opposition, that they are unaware of any physical evidence obtained from the defendant's person or from any premises over which he enjoys a reasonable expectation of privacy. The People further declare that they are unaware of any statements made by the defendant to law enforcement personnel.

Accordingly, the defendant's motion to suppress physical and statement evidence is denied as moot, without prejudice.

RESERVATION OF RIGHTS

The defendant's motion to reserve the right to make further motions is granted to the [*6]

extent permitted by Criminal Procedure Law Section 255.30(3) and by Order of this Court.

This opinion constitutes the decision and order of the court.

Dated: October 25, 2013

Kew Gardens, New York

____________________________

Michelle Armstrong, J.C.C.