People v. Atkins

• Decision Date: 10 April 2017
• Docket Number: No. 2016BX054944.,2016BX054944.
• Citation: 57 N.Y.S.3d 676 (Table)
• Parties: The PEOPLE of the State of New York, v. Leroy ATKINS, Defendant.
• Court: New York Criminal Court

57 N.Y.S.3d 676 (Table)

The PEOPLE of the State of New York,

v.Leroy ATKINS, Defendant.

No. 2016BX054944.

Criminal Court, City of New York, Bronx County.

April 10, 2017.

By ADA Nicholas Lastella, Darcel D. Clark, District Attorney of Bronx County, for the People.

Lissa Luke, Esq., of Luke McKay, PLLC, for the Defendant.

BAHAATI E. PITT, J.

Defendant Leroy Atkins moves for the following: (1) a dismissal of the of the accusatory instrument upon the grounds of facial insufficiency, pursuant to Criminal Procedure Law § 170.30(1)(a) ; (2) a pre-trial "voluntariness hearing," pursuant to Criminal Procedure Law §§ 710.20(3) and 60.45 ; (3) preclusion at trial of statements made by defendant upon the grounds that proper notice has not been given, pursuant to Criminal Procedure Law § 710.30 ; (4) preclusion at trial of prior convictions or bad acts; and (5) the reservation of rights to file additional motions. The defendant is charged with Sexual Abuse in the Second Degree ( Penal Law § 130.60[2] ); Forcible Touching ( Penal Law § 130.52[1] ); two counts of Endangering the Welfare of a Child ( Penal Law § 260.10[1] ), Sexual Abuse in the Third Degree ( Penal Law § 130.55 ); and Harassment in the Second Degree ( Penal Law § 240.26[2] ).

Defendant's motion to dismiss the charges of Sexual Abuse in the Second Degree ( Penal Law § 130.60[2] ); Forcible Touching ( Penal Law § 130.52 [1 ] ); two counts of Endangering the Welfare of a Child ( Penal Law § 260.10 [1 ] ), Sexual Abuse in the Third Degree ( Penal Law § 130.55 ); and Harassment in the Second Degree ( Penal Law § 240.26[2] ) upon the grounds of facial insufficiency are DENIED.

A Huntley/Dunaway hearing is GRANTED.¹

The defendant's motion for an order suppressing statements that he allegedly made to law enforcement personnel and which the People intend to offer in evidence is granted to the extent that an evidentiary ("Huntley") hearing shall be conducted to resolve a factual issue, whether the statements were made involuntarily as defined in CPL 60.45.

If there are additional statements which the People obtained from the defendant and which they do not intend to offer in evidence in their own case, the People are directed to disclose the content of those statements to the defendant. Furthermore the "Huntley" hearing shall be expanded to consider the voluntariness of those statements in anticipation that the People will seek to use them to impeach the defendant's trial testimony.

Any and all Sandoval applications will be heard immediately before trial.

The defendant's reservation of his right to make further motions is DENIED. (See Criminal Procedure Law § 255.20[3] ). Any future motions shall be summarily denied absent a showing of good cause.

To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" ( CPL § 100.15[2] ) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" ( CPL § 100.15[3] ). Further, it must provide reasonable cause to believe that the defendant committed the offenses charged in the information and include non-hearsay factual allegations, which, if true, establish every element of the offense charged ( CPL 100.40[1] ).

CPL § 100.40(1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" ( People v. Jones, 9 NY3d 259, 261, 878 N.E.2d 1016, 848 N.Y.S.2d 600 [2007] ). The Court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt ( People v. Henderson, 92 N.Y.2d 677 [1999] ; People v. Jennings, 69 N.Y.2d 103, 115 [1986] ). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360 [2000] ).

However, while " CPL 200.50(6) commands that an indictment contain a statement in each count indicating that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time the statute neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be stated" ( People v. Keindl, 68 N.Y.2d 410, 417 [NY 1986]quoting People v. Morris, 61 N.Y.2d 290, [NY 1984] ). Therefore, "[w]hen time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms" as long as it "set[s] forth a time interval which reasonably serves the function of protecting [the] defendant's constitutional right to be informed of the nature and cause of the accusation" ( People v. Watt, 81 N.Y.2d 772, 774 [1993] [internal quotation marks and citations omitted] ).

"The determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the indictment and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances" (People v. Morris, supra, at 295). In making this determination, consideration should be given to, among other things: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, which should take into account whether it is likely to occur at a specific time or is likely to be discovered immediately (People v. Keindl, supra, at 419; People v. Morris, supra, at 296 ).

Further, while it has been held that a nine-month time frame alleging a noncontinuous act in an accusatory instrument is generally per se unreasonable (see People v. Beauchamp, 74 N.Y.2d 639, 641 [1989] [holding that a nine-month time frame is an "excessive interval" despite the People's diligent efforts and the young ages of the victims]; see also Keindl, 68 N.Y.2d at 419 [sexual abuse charges spanning 10 months involving crimes against children ranging from ages 8 to 13 were "so excessive on their face that they are unreasonable"] ), these determinations were made based on noncontinuous acts, and a bright-line rule has not been adopted (see e.g. People v. Watt, 81 N.Y.2d at 775 [five-month time frame was not "per se unreasonable"] ). Therefore, as noted in People v.. Sedlock, "[t]he significantly longer period ... is a factor to be considered, with proportionately heightened scrutiny given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant" ( 8 NY3d 535, 539 (N.Y.2007)quoting People v. Watt, supra [internal quotations omitted] ). In making this determination, the court considers, among other things, "the length of the time span provided by the People and the knowledge the People possess or should acquire with reasonable diligence of the exact or approximate date or dates of the criminal conduct." (People v. Watt, supra at 774; People v. Keindl, supra, at 419; People v. Morris, supra, at 295).

Moreover, this determination must be made in light of the offense charged. In this regard, the Court of Appeals has made an important distinction between charges for continuous and non-continuous offenses (See People v. Keindl, supra, at 421). A continuing offense is one "that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" ( People v. Shack, 86 N.Y.2d 529, 540–541 (N.Y.1995), quoting People v. Keindl, supra, at 421); People v. Evangelista, 1 Misc.3d 873, 875 (Bronx Co.Crim. Ct.2003). These offenses may allege time periods that might otherwise be considered "unreasonably excessive" (People v. Evangelista, supra; People v. Keindl, supra, at 417–418). In making its determination as to whether multiple acts may be charged as a continuing crime, the court must reference the penal statute to determine if the statutory definition of the crime necessarily contemplates a single act (People v. Shack, supra; see, People v. Keindl, supra, at 421–422; see also, Matter of Johnson v. Morgenthau, 69 N.Y.2d 148 ). The court should also consider the intent of the statute to determine whether the legislative purpose was to prohibit a course of conduct or specific distinct acts (People v. Shack, supra; see also, People v. Okafore, 72 N.Y.2d 81, 86–87 (N.Y.1988).

In the instant matter, the factual allegations of the accusatory instrument are separated into two time periods, "TPO 1" and "TPO 2," respectively. In each time period, different charges are alleged and separate conduct is provided as the alleged grounds for the respective charges. When referencing "TPO 1," the complaint alleges "that on or about and between March 1, 2016 at approximately 12:00 AM and December 20, 2016 at approximately 12:10 AM inside of 140 Alcott Place, County of the Bronx, State of New York," the defendant committed the offense of Endangering the Welfare of a Child ( Penal Law § 260.10[1] ). When referencing "TPO 2," the complaint further alleges that "on or about December 19, 2016 at approximately 11:00 PM inside of 140 Alcott Place, County of Bronx, State of New York," the defendant committed the offenses of Sexual Abuse in the Second Degree ( Penal Law § 130.60[2] ); Forcible Touching ( Penal Law § 130.52[1] ); Endangering the Welfare of a Child ( Penal Law § 260.10[1] ), Sexual Abuse in the Third Degree ( Penal Law § 130.55 ); and Harassment in the Second Degree ( Penal Law § 240.26[2] ).

As noted above, the complaint also clearly separates the allegations used as grounds for the charges alleged. When referencing the first charge of Endangering the Welfare of a Child ( ...