| People v Rice |
| 2019 NY Slip Op 03843 [172 AD3d 1616] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1](May 16, 2019)
| The People of the State of New York,Respondent, v Jessica Rice, Appellant. |
Noreen McCarthy, Keene Valley, for appellant.
Rachel Dunn, Special Prosector, Justice Center for the Protection of People with SpecialNeeds, Delmar (Jacqueline Kagan of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Franklin County (Richards, J.),rendered December 5, 2016, upon a verdict convicting defendant of the crimes of offering a falseinstrument for filing in the first degree and offering a false instrument for filing in the seconddegree.
In 2013, the victim, who has a diagnosis of moderate mental retardation, was a resident of astate-run facility for individuals with developmental disabilities. Defendant and her live-inboyfriend were employed at the facility. On October 5, 2013, after the victim began acting out,defendant's boyfriend followed him. They engaged in a physical altercation, which ended whendefendant's boyfriend knocked the victim to the ground, causing the victim to strike his head andhave a seizure. An investigation into the incident ensued, during which defendant was required tofill out certain forms. On October 5, she filled out a form IPP-65, which is a progress note for thevictim's file. On October 12, 2013, she completed a preliminary witness statement as part of theinvestigation. In each document, she recited that after the victim punched her boyfriend, staffmembers initiated a two-person takedown and placed the victim into a two-to-three-personsupine hold. Defendant also wrote that when the victim began to seize, he was immediatelyreleased from the hold and rolled onto his side.
Investigators from the Justice Center for the Protection of People with Special Needs foundthat the narrative articulated by defendant in the forms was inconsistent with information gleanedfrom interviews of other witnesses. In April 2015, defendant and four other staff members werecharged by a 26-count indictment with various crimes related to the October 2013 incident andits cover-up; 12 of those counts applied to defendant. Following a trial, defendant was convictedof offering a false instrument for filing in the first degree (see Penal Law§ 175.35), related to her statements in the preliminary witness statement, andoffering a false instrument for filing in the second degree (see Penal Law§ 175.30), related to her statements in the IPP-65. County Court sentenced her tofive years of probation for her conviction of offering a false instrument for filing in the firstdegree and a concurrent three-year term of probation for the other conviction, with both includingan initial jail term of 60 days. Defendant appeals.
The indictment was not defective.[FN*] Among other things, an indictment mustcontain "[a] plain and concise factual statement in each count which, without allegations of anevidentiary nature, . . . asserts facts supporting every element of the offense chargedand the defendant's . . . commission thereof with sufficient precision to clearlyapprise the defendant . . . of the conduct which is the subject of the accusation"(CPL 200.50 [7] [a]; see People v Sanchez, 84 NY2d 440, 445 [1994]). An indictmentmust be specific enough to (1) give the defendant notice of the accusations against him or her, sothat the defendant may prepare a defense, (2) ensure "that the crime for which the defendant isbrought to trial is in fact one for which he [or she] was indicted . . . , rather thansome alternative seized upon by the prosecution in light of subsequently discovered evidence,"and (3) protect the defendant against double jeopardy (People v Iannone, 45 NY2d 589,594-595 [1978]; see People v Sanchez, 84 NY2d at 445). Generally, an indictment issufficient if it incorporates the specific statutory provision that the defendant is accused ofviolating (see People v Ray, 71 NY2d 849, 850 [1988]; People v Park, 163 AD3d 1060,1064 [2018]; People v Perez, 93AD3d 1032, 1034 [2012], lv denied 19 NY3d 1000 [2012]), and the factual details ofan indictment may be amplified by a subsequently-filed bill of particulars (see People vSanchez, 84 NY2d at 445; People v Iannone, 45 NY2d at 597; People vPerez, 93 AD3d at 1034).
For each count at issue here, the indictment specified the relevant statutory provision chargedand recited the elements of the crime. Each count also identified the date that defendant allegedlysubmitted the written instrument containing false statements, the public office to whichdefendant was alleged to have submitted the document and a statement that the subject matterunderlying each individual count was different from the other, similarly-charged offenses. ThePeople's bill of particulars alleged that defendant acted to "facilitate the fabrication and/orfalsification and/or mischaracterization of facts surrounding the incident to be included in[defendant's] IPP-65 and Preliminary Witness Statement." Considering the supplementalinformation in the bill of particulars, the indictment was sufficient because it referenced thespecific statutory provisions being charged, the date of filing and exact forms that contained theallegedly false information, and the entity to which they were offered. Thus, defendant wasprovided with sufficient factual information to give notice of the charges against her for purposesof mounting her defense, to ensure that she was tried for the same crimes as the ones for whichshe was indicted and to protect her from double jeopardy (see People v Tambadou, 56 AD3d 953, 954 [2008], lvdenied 12 NY3d 762 [2009]; Peoplev Stanley, 23 AD3d 683, 684-685 [2005], lv denied 6 NY3d 818 [2006]; People v Yakubova, 11 AD3d 644,645 [2004], lv denied 4 NY3d 769 [2005]).
County Court correctly denied defendant's motion to dismiss the indictment on the ground ofan alleged violation of her statutory right to a speedy trial. CPL 30.30 (1) (a) requires the Peopleto be ready for trial within six months of the filing of an indictment charging at least one felony(see People v Brown, 28 NY3d392, 403 [2016]). However, a statement of readiness filed "at a time when the People are notactually ready is illusory and insufficient to stop the running of the speedy trial clock" (Peoplev England, 84 NY2d 1, 4 [1994]; accord People v Brown, 28 NY3d at 404).Statements of readiness are presumed accurate and truthful, with the defendant bearing theburden of demonstrating that the People were not actually ready at the time that they filed theirstatement (see People v Brown, 28 NY3d at 399-400).
The People filed a statement of readiness and announced readiness at arraignment on April 9,2015, one day after the indictment was filed. In March 2016, one week before a joint trial wasscheduled to begin against all five defendants, defendant moved to sever the indictment. CountyCourt granted the motion, ordering that each defendant be tried separately. The People thenindicated that they were not ready to proceed against defendant and all but one of hercodefendants, based on the significant procedural changes resulting from the severance, a relatedalteration in the People's strategy with respect to each defendant and the difficulty in schedulingcertain witnesses to appear. The People filed a second statement of readiness in May 2016.Although the People had declared a lack of readiness after the court-ordered severance, thePeople provided a reason for their change in readiness status and the record bears no indicationthat they were not prepared to proceed when they first announced readiness. Therefore, CountyCourt correctly denied defendant's speedy trial motion because the initial statement of readinesswas not illusory (see People vMiller, 113 AD3d 885, 887 [2014]; People v Jacobs, 45 AD3d 883, 884 [2007], lv denied 9NY3d 1035 [2008]).
Several of defendant's arguments are unpreserved for our review due to her failure toproperly raise them before County Court. Defendant's pretrial motion to dismiss the indictmentdid not contend that certain counts were multiplicitous (see People v Valcarcel, 160 AD3d 1034, 1037 [2018], lvdenied 31 NY3d 1088 [2018]). In the trial court, defendant never challenged Penal Law§ 175.35 as unconstitutionally vague (see People v Iannelli, 69 NY2d 684,685 [1986], cert denied 482 US 914 [1987]; People v Lancaster, 143 AD3d 1046, 1052 [2016], lvdenied 28 NY3d 1147 [2017]). Although defendant moved for a trial order of dismissal atthe close of the People's proof, she failed to preserve her attack on the legal sufficiency of theevidence because she did not renew that motion after offering her own proof (see People v Kolupa, 13 NY3d786, 787 [2009]; People vAnthony, 152 AD3d 1048, 1053 [2017], lv denied 30 NY3d 978 [2017]). Byfailing to object to the jury charge, defendant has not preserved her contention that certain juryinstructions were inaccurate or confusing (see People v Green, 119 AD3d 23, 30 [2014], lv denied 23NY3d 1062 [2014]). Defendant's claim that the verdict is repugnant is unpreserved because shedid not object to the verdict before the jury was discharged, when the court could have resolvedany problem (see People v Poulin,159 AD3d 1049, 1052-1053 [2018], lv denied 32 NY3d 940 [2018]; People v Keener, 152 AD3d 1073,1074 [2017]). County Court did not err in failing to poll the jury after it rendered its verdictbecause defendant did not make that request and, indeed, specifically declined such anopportunity (see CPL 310.80; People v Mercado, 91 NY2d 960, 962-963 [1998];People v Harden, 134 AD3d1160, 1165 [2015], lv denied 27 NY3d 1133 [2016]).
Garry, P.J., Clark, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although the indictment chargeddefendant in 12 counts, only five were submitted to the jury and she was convicted of two.Hence, we address only those two counts.