| People v Muhina |
| 2009 NY Slip Op 06958 [66 AD3d 1397] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Noor Muhina,Respondent. |
—[*1] Linda M. Campbell, Syracuse, for defendant-respondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), enteredFebruary 24, 2009. The order granted that part of the omnibus motion of defendant to dismiss theindictment as facially defective.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the motion to dismiss the indictment is denied, the indictment is reinstated, and the matteris remitted to Onondaga County Court for further proceedings on the indictment.
Memorandum: On this appeal by the People from an order granting that part of defendant'somnibus motion to dismiss the indictment as facially defective, we conclude that reversal isrequired on the ground that County Court erred in determining that the time frame alleged for thecrimes was unreasonably excessive. An essential function of an indictment is "to provide thedefendant with sufficient information regarding the nature of the charge and the conduct whichunderlies the accusation to allow him or her to prepare or conduct a defense" (People vMorris, 61 NY2d 290, 293 [1984]; see CPL 200.50 [7] [a]). "The notice requirement. . . is met if[,] in addition to stating the elements of the [crimes], 'the indictmentcontains such description of the [crimes] charged as will enable [defendant] to make his [or her]defense and to plead the judgment in bar of any further prosecution for the same crime[s]' "(Morris, 61 NY2d at 295). An indictment should not be dismissed as defective underCPL 200.50 if it provides "a reasonable approximation, under the circumstances of the individualcase, of the date or dates involved" (Morris, 61 NY2d at 292).
Here, defendant was charged with predatory sexual assault against a child (Penal Law§ 130.96), course of sexual conduct against a child in the first degree (§ 130.75 [1][a]), and endangering the welfare of a child (§ 260.10 [1]), each of which is a continuingoffense to which "the usual requirements of specificity with respect to time do not apply" (People v Green, 17 AD3d 1076,1077 [2005], lv denied 5 NY3d 789 [2005]; see People v Keindl, 68 NY2d 410,421 [1986], rearg denied 69 NY2d 823 [1987]; People v Palmer, 7 AD3d 472 [2004], lv denied 3 NY3d710 [2004]; People v McLoud, 291 AD2d 867, 868 [2002], lv denied 98 NY2d678 [2002]; People v Colf, 286 AD2d 888, 888-889 [2001], lv denied 97 NY2d655 [2001]). "The period of two years alleged in the indictment was sufficient to give defendantadequate notice of the charges to enable him to prepare a defense, to ensure that the crimes forwhich he was tried were in fact the crimes with which he was charged, and 'to protect [his] right[*2]not to be twice placed in jeopardy for the same conduct' "(McLoud, 291 AD2d at 868; see generally People v Merrill, 55 AD3d 1333 [2008], lvdenied 11 NY3d 928 [2009]; Green, 17 AD3d at 1077; Palmer, 7 AD3d 472[2004]). Present—Smith, J.P., Centra, Fahey, Carni and Pine, JJ.