People v Fernandez

[*1] People v Fernandez 2018 NY Slip Op 28172 Decided on June 5, 2018 Supreme Court, Bronx County Montano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 5, 2018
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Jose Fernandez, Defendant.



01516-2017
Armando Montano, J.

The defendant was indicted by the Grand Jury of Bronx County and charged with Attempted Murder in the Second Degree and other related charges.

The defendant now moves this Court for inspection of the Grand Jury minutes and dismissal of the indictment. On the other hand, the People move to amend the indictment. The motions are decided as follows:

Grand Jury Proceedings

Defendant's application for inspection of the Grand Jury minutes and for dismissal of the indictment is granted to the extent that the Court has examined the Grand Jury minutes in camera to determine their legal sufficiency. Upon review, the Grand Jury minutes reveal that there was a quorum of the Grand Jury present during the presentation of evidence and at the time the District Attorney instructed the Grand Jury on the law. The minutes also reveal that the instructions were not defective as a matter of law, that the proceedings were proper, and that the evidence before the Grand Jury was sufficient to support each and every count in the indictment. Thus, defendant's motion to dismiss or reduce the charges on the grounds that the Grand Jury proceeding was improper is denied. However, the Court grants defendant's motion to dismiss the indictment on another ground.

The Court's Review of the Indictment

As required of the Court when deciding an Omnibus motion, this Court has reviewed the Indictment in this matter. Upon review, and for the reasons discussed below, the Court finds that the indictment is facially defective under CPL §§ 210.20 and 210.25.

In the indictment at issue, the defendant is charged with eight different counts. In each and every count, the People allege, in essence, that "[t]he defendant, Jose Fernandez, on or about, in the County of the Bronx " committed numerous crimes. However, the words "on or about" are not followed by a designated date, approximate date, or time frame as to when each alleged crime occurred, as required by CPL §200.50(6). The People now move to amend the indictment "to add the date of 'June 13, 2017' after each and every portion where it reads 'on or about.'" The People contend that the omission of the date of the crime in the indictment was "due to a clerical error and/or oversight, therefore, it can be amended without re[-]presentation."[*2]The defendant opposes the People's motion to amend the indictment. The defendant argues that "[t]he fact that the date of the commission of the offense was entirely omitted from each count of the indictment as opposed to having an incorrect date renders the indictment jurisdictionally defective on its face and not subject to amendment."

Analysis

Pursuant to CPL §200.50(6),

An indictment must [emphasis added] contain [a] statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time

Furthermore, CPL §210.20(1)(a) requires dismissal of the indictment when "[s]uch indictment or count is defective, within the meaning of section 210.25 " Section 210.25 reads, as follows:

An indictment or a count thereof is defective within the meaning of paragraph (a) of subdivision one of section 210.20 when:(1) It does not substantially conform to the requirements stated in article two hundred; provided that an indictment may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment, pursuant to section 200.70, and where the people move to so amend . . .

It is well-established law that a criminal indictment "serves to satisfy the notice requirements of the Federal and State Constitutions." (People v Morris, 61 NY2d 290, 293 [1984]). One of the most fundamental purposes served by an indictment is to provide the defendant with sufficient information regarding the accusations against him in order to allow him or her to prepare a defense. (See Id.; see also Practice Commentaries to §CPL 200.50). Equally as important, an indictment protects the defendant from subsequent prosecution for the same offense. Thus, in order to ensure that a defendant receives fair notice of the accusations against him, CPL §200.50 sets forth requirements in order to deem the indictment sufficient. Failure to comply with the requirements outlined in CPL §200.50 may result in the dismissal of the indictment.

In the instant indictment, the People failed to include a date of the alleged incident. While a "lack of a precise date of the crime is not a fatal defect in the indictment if it is not a substantive element of the crime" (see People v Morris, supra), the indictment at hand does not provide the defendant with, at a minimum, a time frame or an approximate date of the alleged crimes. The Court acknowledges that a mistake in an indictment "with respect to the date, time or place of an alleged crime is a technical defect rather than a jurisdictional defect vital to the sufficiency of the indictment." (People v Dudley, 28 AD3d 1182, 1183 [4th Dept 2006]). CPL §200.70 provides the People with an opportunity to cure any defects in an indictment by allowing them to bring a motion to amend the indictment. CPL §200.70 states, in relevant part:

At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits.

Although it may have indeed been an inadvertent error by the People to omit the [*3]approximate date of occurrence[FN1] , especially in light of the fact that the People did include the words "on or about", this Court determines that it does not have the authority to allow the People to amend the indictment to include a date that is completely omitted (emphasis added). While the issue presented here is one of first impression, this Court is of the opinion that such addition would not be one of form but one of substance and, therefore, cannot be cured by amendment pursuant to CPL §200.70. Accordingly, this Court finds that a failure to include a date or an approximate date or an approximate time frame of the alleged crimes charged in an indictment renders the indictment facially defective.

The Court notes that in support of its motion to amend, the People cite to People v. Parilla, 285 AD2d 157 (1st Dept). In People v. Parilla, the indictment was filed on October 18, 1993, and it charged the defendant with crimes that allegedly took place "on or about September 10, 1993 and November 30, 1993," which postdated the filing of the indictment. Thus, the People moved to amend the indictment to change the date of "on or about September 10, 1993 and November 30, 1993", to "on or about September 10, 1993 and September 11, 1993." Even though the original indictment erroneously charged the defendant with committing crimes both before and after the filing of the indictment, the Court allowed the amendment. The Court reasoned that "[t]he effect of the amendment . . . was not to charge defendant with new offenses committed prior to the date of its filing; those time periods were already included in the original indictment." Thus, in People v. Parilla, unlike in the instant matter, the indictment contained a date, making the indictment valid on its face pursuant to CPL §200.50(6). In the instant mater, the date of the alleged incident is completely omitted in each and every count of the indictment as stated above. Therefore, the omission cannot be characterized as a typographical mistake as in People v. Parilla.

Lastly, the Court notes that the People argue that the amendment should be permitted because the People did include the alleged crime date, time and location in the Voluntary Disclosure Form which was filed and attached to the indictment. Thus, the People argue that the defense was "on notice of the timing of the alleged crime and no prejudice will result by allowing the People to amend the current indictment to include the date of June 13, 2017." However, the Court is not persuaded by said argument. The Voluntary Disclosure From is by no means part of an indictment and therefore any information included in said form does not relieve the People from its burden of including all the requirements, as set forth in CPL §200.50(6), in an indictment.

Accordingly, for the reasons provided herein, the indictment must be dismissed without prejudice and with leave for the People to re-present this matter to another Grand Jury panel.

Securing Order

C.P.L. § 210.45(9) provides, in relevant part, the following:

When the court dismisses the entire indictment but authorizes resubmission of the charge or charges to a grand jury, such authorization is, for purposes of this subdivision, deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge or charges. Such order must be accompanied by a securing order either releasing the defendant on his own recognizance or fixing bail or committing him to the [*4]custody of the sheriff pending resubmission of the case to the grand jury and the grand jury's disposition thereof. Such securing order remains in effect until the first to occur of any of the following:(a) A statement to the court by the people that they do not intend to resubmit the case to a grand jury;(b) Arraignment of the defendant upon an indictment or prosecutor's information filed as a result of resubmission of the case to a grand jury. Upon such arraignment, the arraigning court must issue a new securing order;(c) The filing with the court of a grand jury dismissal of the case following resubmission thereof;(d) The expiration of a period of forty-five days from the date of issuance of the order; provided that such period may, for good cause shown, be extended by the court to a designated subsequent date if such be necessary to accord the people reasonable opportunity to resubmit the case to a grand jury.

Accordingly, this Decision and Order shall also constitute a Securing Order maintaining bail in the amount of a $200,000 bond or $100,000.00 cash, as previously set, pending resubmission of the case to a Grand Jury and the Grand Jury's vote, should the People decide to exercise said option. This Securing Order will expire forty-five days from June 5, 2018.

The foregoing constitutes the Decision and Order of this Court.

Dated: June 5, 2018

Bronx, New York

Armando Montano, J.S.C. Footnotes

Footnote 1: The Court notes that in the Grand Jury proceeding, testimony was sufficiently provided as to the date of occurrence of the alleged crime, to wit: June 13, 2017.