People v Early

[*1] People v Early 2023 NY Slip Op 50257(U) Decided on April 3, 2023 Justice Court Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2023
Justice Court of the Town of Webster, Monroe County

The People of the State of New York,

against

Richard A. Early, Defendant.



Case No.: 22090168



Sandra Doorley, District Attorney, Monroe County (Stephen F. Ryck of Counsel), for plaintiff.

Julie Cianca, Monroe County Public Defender (Griffin Dault of Counsel), for defendant.
Thomas J. DiSalvo, J.

Facts of the Case

The defendant was charged with endangering the welfare of a child, in violation of P.L. § 260.10 (1), and one count of sexual abuse, 3rd degree, P.L. § 130.55. Both informations alleged that the alleged crimes occurred on August 10, 2021. He was arraigned on September 23, 2022. Bail was set which resulted in the defendant being remanded to the custody of the Monroe County Sheriff, and the case was adjourned to October 5, 2022. On that date the defense requested that the case be set down for a jury trial, which was then scheduled to pick a jury on January 26, 2023 and for the trial to commence on January 27, 2023. On January 18, 2023 a pre-trial conference was conducted to review the status of the case. During that conference the People announced they would be filing superceding informations, whereupon the jury trial was cancelled.The case was then scheduled to February 24, 2023 to have the defendant arraigned on the said superceding informations. The People did file superceding informations charging the defendant with endangering the welfare of a child, in violation of P.L. § 260.10 (1), and now two counts of sexual abuse, 3rd degree, P.L. § 130.55. The informations alleged that the said crimes occurred on August 10, 2021. The defendant was arraigned on said charges on February 24, 2023. The attorneys then advised the court that discovery had been completed. The case was then adjourned for argument of motions at the request of defense counsel to April 19, 2023 and for a probable cause and a Huntley hearing on April 28, 2023.On February 23, 2023 Defense counsel filed motions to dismiss the charges herein alleging that the defendant was denied his right to a speedy trial based on the prosecution not having declared readiness for trial [*2]within the statutorily prescribed time frame pursuant to CPL §§ 30.30 and 170 (1) (e). Said motions also demanded that the charge of endangering the welfare of a child, P.l. § 260.10 (1) be dismissed on the ground that the charge is duplicitous.

Issues Presented

Should the case be dismissed on speedy trial grounds pursuant to CPL §§ 30.30 and 170 (1) (e)?

Should the charge of endangering the welfare of a child be dismissed as duplicitous?

Legal Analysis

Speedy Trial. The People must be ready for trial within " ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony".[FN1] The charge of endangering the welfare of a child, 260.10 (1) is a class A misdemeanor. The two counts of sexual abuse, 3rd degree, P.L. § 130.55 are class B misdemeanors. Nevertheless, the People have 90 days to be ready for trial.

"The People have a duty to bring a case to trial within the authorized speedy trial time, and their failure to do so results in dismissal of the charges (CPL § 30.30). In a motion to dismiss for speedy trial violation, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (See People v. Luperon, 85 NY2d 71, 77-78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995]). Then, the burden shifts to the People to identify 'the exclusions on which they intend to rely' (id. at 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243). If the defendant disagrees, he 'must identify any legal or factual impediments to the use of these exclusions'" (People v. Gutierrez, — N.Y.S.3d &mdash, 2023 NY Slip Op 23022*4)

The defendant was not provided with an appearance ticket but was brought into Court for an "off hours" arraignment on September 23, 2022, which was the same date of the original accusatory instruments. Said date was also the date the accusatory instruments were filed with the court. "Obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the 'commencement' of the action, the date on which the first accusatory paper is filed." (People v. Lomax, 50 NY2d 351,356, 428 N.Y.lS. 2d 937,939 [1980]).[FN2] Nevertheless, the defendant argues that ninety days had passed from the date of the commencement of the action, to wit: September 23, 2022, and that since the People had not announced their readiness for trial by December 22, 2022, the charges should be dismissed pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e). However, the law does not require that the People announce their readiness for trial within ninety days of the commencement of the action. In fact CPL § 30.30 (4) provides for various times subsequent to the commencement of the action to be excluded from the calculation of the ninety day time frame.

A Certificate of Compliance/Statement of Readiness For Trial was filed with the Court [*3]on January 5, 2023.[FN3] That would be 104 days from the commencement of this case. However, the previous assistant public defender stipulated by his text to the assistant district attorney that the 29 day period of October 17, 2022 through November 16, 2022 was not chargeable to the People. As a result, only 75 days were chargeable to the People at the time the People announced readiness for trial.

Duplicitous Charge. Defense counsel's motions demand that the charge of endangering the welfare of a child, P.L. § 260.10 (1) should be dismissed as duplicitous. The motions argued that the defendant could not be charged with endangering the welfare of a child and the two counts of sexual abuse in the third degree, because to do so would render the former charge duplicitous. That section states that "A person is guilty of endangering the welfare of a child when: He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health." He argues in his papers that "The accusatory instrument is duplicitous because there are multiple separate acts described that could be the basis for the charge of Endangering the Welfare of a Child PL § 260.10(1)."In this case the accusatory instruments, charging the defendant with endangering the welfare of a child, namely the complaint and supporting deposition, alleged both an inappropriate touching of the minor child in question and that the defendant threatened the said minor relative to telling the child's mother. The complaints charging the defendant with sexual abuse, 3rd degree, also alleged improper touching of he minor child. The CPL § 200.30(1) prohibits duplicitous counts. It states that "Each count of an indictment may charge one offense only." Endangering the welfare of a child is a class A misdemeanor. However, "This section is also applicable to misdemeanors. People v. Mitchell S., 151 Misc 2d 208, 573 N.Y.S.2d 124; People v. Rios, 142 Misc 2d 357, 537 N.Y.S.2d 775; People v. Todd, 119 Misc 2d 488, 463 N.Y.S.2d 729." (People v. Minton, 170 Misc 2d 272,273, 647 N.Y.S.2d 692,693 [1996])

An exception to the duplicitous rule is when the offense is considered a continuing offense. In fact "Endangering the welfare of a child is considered a continuing offense because it 'does not necessarily contemplate a single act . . . [Rather], a defendant may be guilty of [that offense] 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'". (People v. Bernardo, 84 AD3d 1717.1718, 923 N.Y.S.2d 812,813 [4th Dept 2011]) As a general rule "The question of whether multiple acts may properly be charged as a continuing crime is essentially one of statutory construction which requires reference to the language of the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act."[FN4] Certainly a fair reading of the CPL § 260.10 would indicate that it could apply to one act and/or a course of conduct. Thus multiple actions of a defendant can be alleged relative to one count of endangering the welfare of a child.

The argument that the defendant could not be charged with endangering the welfare of a child and sexual abuse in the 3rd degree, does not appear to have any support in case law.

" 'The rule against duplicity prohibits the Government from joining two or more distinct offenses in a single count, because if a jury were to return a general verdict on a duplicitous count, it would be unclear as to whether the defendant was found guilty of only one crime and not the other, or guilty of both.' United States v. Coffey, 361 F. Supp. 2d 102, 109 (E.D.NY 2005) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980) ); see also United States v. Crisci, 273 F.3d 235, 238 (2d Cir. 2001) ("'The vice of a duplicitous charge is that it risks to impair a defendant's rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution.'") (internal quotation marks omitted)." (Hughes v. Sheehan, 312 F.Supp.3d 306,345 [US Dist Ct, ND NY 2018])

By way of example, although the issue of duplicity was not at issue, the court held in People v. Owens, 149 AD3d 1561,1563, 52 N.Y.S.3d 790,793 (4th Dept 2017) that "Inasmuch as the evidence is legally sufficient to support the conviction of sexual abuse in the first degree, 'it necessarily also [is] legally sufficient with respect to the conviction of endangering the welfare of a child'".As result, it is quite apparent that the charges of endangering the welfare of a child and sex abuse are not mutually exclusive.

Conclusion

The People have established that they have announced readiness for trial within the required ninety day period of time. Thus defense counsel's motion to dismiss the charges herein pursuant to CPL § 30.30 (1) (b) and 170.10 (1) (e) is hereby denied. The charge of endangering the welfare of a child is not duplicitous as compared to the charge of sex abuse, 3rd degree. Therefore the motion to dismiss the charge of endangering the welfare of a child is hereby denied.

Dated: April 3, 2023

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1:(CPL § 30.30 [1] [b])

Footnote 2:(Note that " where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket." (PL § 30.30 [7] [b]).

Footnote 3:(A subsequent Certificate of Compliance/Statement of Readiness For Trial was filed with the Court on February 2, 2023 relative to the superceding accusatory instruments.)

Footnote 4:(Minton at 274,694.)