| People v Bennett |
| 2008 NY Slip Op 09811 [57 AD3d 688] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mThe People of the State of New York, Respondent, v ClayBennett, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.),rendered June 3, 2005, convicting him of rape in the first degree (two counts), sodomy in the firstdegree (two counts), sexual abuse in the first degree (two counts), and rape in the third degree (twocounts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter isremitted to the County Court, Suffolk County, for the purpose of entering an order in its discretionpursuant to CPL 160.50.
The indictment in this case charged the defendant with two counts each of rape in the first degree,sodomy in the first degree, sexual abuse in the first degree, and rape in the third degree. As to eachcount, the indictment alleged that the crime occurred "on or about and between June of 2001 andDecember of 2001." In an amended bill of particulars the People asserted that the crimes occurred ontwo separate occasions, once "while it was warm out and while the victim's mother was at the grocerystore," and the other "approximately two weeks" later. The People did not, however, narrow down theseven-month time frame originally specified in the indictment. That time frame coincided with the entiretime period that the defendant lived with the victim and her mother, when the victim was seven yearsold.
Considering all of the relevant circumstances, we agree with the defendant that his motion todismiss the indictment based upon the unreasonable length of time specified in the indictment andamended bill of particulars should have been granted (see People v Watt, 81 NY2d 772[1993]). In reaching a determination as to whether a designated period of time is reasonable, "factors[*2]to be considered might include but should not be limited to thelength of the alleged period of time in relation to the number of individual criminal acts alleged; thepassage of time between the alleged period for the crime and defendant's arrest; the duration betweenthe date of the indictment and the alleged offense; and the ability of the victim or complaining witness toparticularize the date and time of the alleged transaction or offense" (People v Morris, 61NY2d 290, 296 [1984]). Here, the People failed to specify a more precise time frame or todemonstrate that they were unable to do so (see People v Sedlock, 8 NY3d 535 [2007]).
Where an indictment charges a time interval which is so large that it is virtually impossible for adefendant to answer the charges and prepare a defense, dismissal should follow even though the Peoplehave acted diligently and a shorter time period cannot be alleged (see People v Beauchamp, 74NY2d 639 [1989]). In Beauchamp, the Court of Appeals held that a time period of ninemonths, excluding weekends, during which crimes occurred, was so excessive as to be unreasonable,even considering the nature of the crimes (sexual molestation) and ages of the victims (four to six yearsold). In People v Sedlock (8 NY3d535, 538 [2007]), the Court of Appeals characterized the nine-month time frame as "generally perse unreasonable." When a per se (nine-month) bar does not apply, a significantly lengthy period is afactor to be considered, with "proportionately heightened scrutiny" given to whether the People'sinability to provide more precise times can be justified as against the important notice rights of thedefendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775[1993]).
At trial, the victim testified that the two incidents occurred about two weeks apart when she was inthe middle of second grade. The first incident occurred when her mother was at the grocery store withthe victim's brother. The second incident occurred when the mother took the brother to the doctor. ThePeople should have inquired as to when the mother took the victim's brother to the doctor and/orshould have sought to obtain the brother's medical records to narrow the time frame of the crimes asalleged. The defendant's ability to prepare a defense was further stymied by the fact that the victimtestified that the incidents occurred in the middle of her second grade school year, which would havebeen during the winter, but the amended bill of particulars provided that the incidents occurred whenthe weather was warm. Under these circumstances, when the time period charged, namely sevenmonths, approaches the nine-month period found to be per se unreasonable in People vBeauchamp (74 NY2d 639 [1989]; see People v Sedlock, 8 NY3d at 538), the Peopleare subjected to "proportionately heightened scrutiny" as to whether their inability to provide moreprecise times is justified (id at 539). There is no indication that the People inquired of themother or of the doctor of the victim's brother regarding as to when the brother was treated.
Further, the defendant's arrest and indictment did not occur until more than two years after thelatest date specified for the crimes. The inability of the victim, who was 11 years old by the time of trial,to further narrow down the time frame of the offenses may very well be attributable to the length of timebetween the alleged commission of the crimes and the defendant's indictment. Under the circumstances,the seven-month time frame cannot be found to be reasonable, "when weighed against the imperativenotice rights of the defendant" (People vSedlock, 8 NY3d 535, 539-540 [2007]).
In light of our determination, we need not reach the defendant's remaining contentions. Mastro,J.P., Skelos, Lifson and Leventhal, JJ., concur.