People v. Bottcher
| Decision Date | 16 February 1978 |
| Citation | 402 N.Y.S.2d 934,93 Misc.2d 417 |
| Parties | The PEOPLE of the State of New York v. Albert BOTTCHER, Defendant. |
| Court | New York Supreme Court |
John Santucci, Dist. Atty. for the County of Queens, for the people.
John C. Groarke, Maspeth, for defendant.
In this case the Court considers whether the recent Appellate Division rulings in People v. Jackson, App.Div., 401 N.Y.S.2d 526 (1978) and People v. Smith, App.Div., 401 N.Y.S.2d 529 (1978), dismissing sodomy indictments as jurisdictionally defective for lack of specificity must be applied to an indictment charging sexual abuse.
The defendant was indicted on August 24, 1977 for the crimes of sexual abuse in the first degree under the first and second counts of the indictment and endangering the welfare of a child under the third and fourth counts. Defendant's omnibus motion was submitted on January 16, 1978 and has been decided separately.
The first count of the indictment charges the defendant with sexual abuse in the first degree under Penal Law § 130.65, subd. 1, and reads as follows:
"THE GRAND JURY OF THE COUNTY OF QUEENS, by this indictment, accuse the defendant of the crime of SEXUAL ABUSE IN THE FIRST DEGREE committed as follows: The defendant, aforenamed, on or about May 25, 1977 in the County of Queens, did subject another person, namely (a minor), 9 years old, to sexual contact."
The second count of the indictment also charges sexual abuse in the first degree and reads as follows:
"THE GRAND JURY OF THE COUNTY OF QUEENS, by this indictment, accuse the defendant of the crime of SEXUAL ABUSE IN THE FIRST DEGREE committed as follows: The defendant, aforenamed, on or about June 1, 1977 in the County of Queens, did subject another person, namely (a minor), 9 years old, to sexual contact."
CPL § 200.50, subd. 7, states that an indictment must contain:
"A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation."
CPL § 200.70, subd. 2, states in pertinent part:
In People v. Jackson, supra and People v. Smith, supra, The Appellate Division, Second Department considered indictments charging the defendants with deviate sexual intercourse by forceable compulsion which constitutes the crime of sodomy in the first degree under PL § 130.50, subd. 1. In neither case did the indictments state the exact nature of the deviate sexual intercourse as that phrase is defined in PL § 130.00, subd. 2. The Court found that both indictments failed to comply with CPL § 200.50, subd. 7 and dismissed them as jurisdictionally defective. (See People v. Guest, 53 A.D.2d 892, 385 N.Y.S.2d 376; People v. Barnes, 44 A.D.2d 740, 354 N.Y.S.2d 1014; People v. Clough, 43 A.D.2d 451, 353 N.Y.S.2d 260; People v. Ebasco Serv., 77 Misc.2d 784, 787-788, 354 N.Y.S.2d 807, 811-812).
This Court has recently applied the Jackson ruling to indictments with identically worded sodomy counts (People v. Lester Borman, Ind.No. 2172/77, decision dated February 6, 1978, and People v. Andrew DiBenedetto, Ind.No. 2061...
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