People v. Hairston

• Decision Date: 16 March 2012
• Citation: 940 N.Y.S.2d 857
• Parties: The PEOPLE of the State of New York v. Carlos HAIRSTON, Defendant.
• Court: New York Supreme Court

940 N.Y.S.2d 857

The PEOPLE of the State of New York

v.Carlos HAIRSTON, Defendant.

Supreme Court, Kings County, New York.

March 16, 2012.

Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Christina Fay, for the People of the State of New York.

Brooklyn Defender Services, by George Cooke, Esq. for Defendant, Carlos Hairston.

MIRIAM CYRULNIK, J.

Defendant stands indicted of Rape in the First Degree and other charges, including Predatory Sexual Assault.

The indictment alleges that, on May 2, 2011, defendant forcibly compelled complaining witness M.B. to perform oral sex upon him. According to the indictment, defendant then forcibly subjected the complainant to anal intercourse. The indictment further alleges that, on May 14, 2011, defendant forcibly touched the breasts of complaining witness A.H. with his hands and mouth. According to the indictment, defendant also forcibly compelled this complainant to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.

Defendant's motion to inspect the Grand Jury minutes was granted. Upon review of the Grand Jury minutes, questions pertaining to the counts of Predatory Sexual Assault were raised by the court. Following oral argument, the People dismissed Counts One through Four of the indictment, each charging Predatory Sexual Assault, as they related to the underlying offenses committed on May 2, 2011.¹ Defendant now moves for dismissal of Counts Twelve through Fifteen of the indictment, each charging Predatory Sexual Assault, as they relate to the underlying offenses committed on May 14, 2011, on the following grounds:

The remaining counts of Predatory Sexual Assault, as they appear in the indictment, fail to state a crime or offense;

The remaining counts of Predatory Sexual Assault cannot be legally amended;

The Predatory Sexual Assault statute was enacted to penalize recidivist behavior; and

The People's intended use of the Predatory Sexual Assault statute violates defendant's due process rights.

The People contend that their intended use of the Predatory Sexual Assault statute is appropriate and that Counts Twelve through Fifteen were properly charged to the Grand Jury and correctly worded in the indictment.

Defendant's motion to dismiss was denied from the bench on January 31, 2012, and this written opinion follows.

Penal Law (PL) § 130.95(2), Predatory Sexual Assault, as charged in the instant indictment, reads as follows:

A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:

2) He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons[.]

Defendant's first contention is that the People fail to state a crime or offense in Counts Twelve through Fifteen of the indictment. Since the four counts in question are uniformly worded and defendant's arguments on this point are exactly the same for each, an analysis of one count will be sufficient to address them all.

Count Twelve of the indictment reads as follows:

The Grand Jury of the County of Kings by this indictment, accuses the defendant of the crime of Predatory Sexual Assault [PL 130.95(2) ] committed as follows:

The defendant, on or about May 14, 2011, in the County of Kings, committed the crime of Rape in the First Degree and engaged in conduct constituting Criminal Sexual Act in the First Degree, namely: contact between the penis of the defendant and the mouth of [M.B.].

Courts have long recognized that the indictment as a document "has traditionally served several purposes.... First ... an indictment [is] considered the necessary method of providing the defendant with fair notice of the accusations made against him in order to allow him to prepare a defense." People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978]. Second, the indictment "provides some means of ensuring that the crime for which the defendant is brought to trial is [the] one for which he was indicted by the Grand Jury [and not] some alternative seized upon by the prosecution [based upon] subsequently discovered evidence" (id. ) Third, the indictment specifies the crime or crimes for which the defendant has been tried so as to avoid any issue of double jeopardy (id. at 595, 412 N.Y.S.2d 110, 384 N.E.2d 656; see also People v. Spann, 56 N.Y.2d 469, 452 N.Y.S.2d 869, 438 N.E.2d 402 [1982]; People v. Martinez, 52 A.D.3d 68, 855 N.Y.S.2d 522 [1st Dept. 2008], lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ).

In People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656, supra, defendant challenged his indictment for criminal usury, arguing that the People failed to set forth facts that constituted a crime. The criminal usury count in the indictment tracked the language of the criminal usury statute, including all the material elements of the crime. Rejecting defendant's challenge, the Court of Appeals recounted the history and development of indictment practices in New York, concluding that "careful consideration of the realities of criminal practice in New York leads ineluctably to the conclusion that the basic essential function of an indictment qua document is simply to notify the defendant of the crime of which he stands indicted" (id. at 598, 412 N.Y.S.2d 110, 384 N.E.2d 656). The court went on to hold that "as a general rule, the indictment need only allege where, when and what the defendant did" (id. )

Interestingly, the Iannone court observed that, although "the prosecutor might have been wiser had he included more detail, what was presented suffices to charge a statutory crime such as usury. When charging statutory crimes, it is usually sufficient to charge the language of the statute unless the language is too broad" (id. at 599, 412 N.Y.S.2d 110, 384 N.E.2d 656). Similarly, the court concluded, in People v. Jackson, 46 N.Y.2d 721, 413 N.Y.S.2d 369, 385 N.E.2d 1296 [1978], that an indictment that contained all the necessary elements of the crime charged, "although inartfully drawn," was not defective.

In the case at bar, Count Twelve of the indictment tracks the language of the PL § 130.95(2). In order to satisfy the elements of Predatory Sexual Assault, a defendant must commit Rape in the First Degree, Criminal Sexual Act in the First Degree, Aggravated Sexual Abuse in the First Degree, or Course of Sexual Conduct Against a Child in the First Degree against a person and have engaged in conduct constituting at least one of the same crimes against one or more additional persons. Count Twelve of the indictment adequately sets forth the elements of PL § 130.95(2) in that it alleges that defendant committed Rape in the First Degree on May 14, 2011 (against complaining witness A.H.) and Criminal Sexual Act in the First Degree on May 2, 2011 (against complaining witness M.B.)

Count Twelve of the indictment was not charged to the Grand Jury in a vacuum, but along with legally sufficient evidence of Rape in the First Degree committed against A.H. on May 14, 2011 and Criminal Sexual Act in the First Degree committed M.B. on May 2, 2011. The evidence presented to the Grand Jury established the facts and sequence of events, allowing the Grand Jury to conclude there was legally sufficient evidence that defendant committed the offense of Rape in the First Degree against A.H., having previously committed the offense of Criminal Sexual Act in the First Degree against M.B. All the elements of Predatory Sexual Assault were established by the evidence presented and the indictment as a document notifies defendant regarding when, where and of what he stands accused (see People ex rel. Best v. Senkowski, 200 A.D.2d 808, 606 N.Y.S.2d 427 [3d Dept. 1994], appeal dismissed 83 N.Y.2d 951, 615 N.Y.S.2d 873, 639 N.E.2d 413 [1994]; People v. Lorenzo, 110 Misc.2d 410, 442 N.Y.S.2d 726 [Sup. Ct., New York County 1981] ).

Furthermore, the indictment includes separate charges for the specific violent sexual offenses committed against each complainant. These charges set forth the specific violent sexual offenses, the specific elements of each offense and the dates upon which they were perpetrated against the respective complainants. It is the combination of these separately charged, enumerated sex crimes, which act as the underlying offenses and aggravating factors, that defines PL § 130.95(2). Consequently, the indictment provides ample notice of all the crimes of which defendant stands accused, including Predatory Sexual Assault.

Finally, defendant's contention that the People fail to state a crime or offense in charging Predatory Sexual Assault must be rejected because defendant is entitled to discovery, in the form of a bill of particulars, which will act to clarify any ambiguities defendant may claim exist in the indictment qua document (see generally CPL § 200.95 ; People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656, supra ; People v. Jackson, 46 N.Y.2d 721, 413 N.Y.S.2d 369, 385 N.E.2d 1296, supra; People ex rel. Best v. Senkowski, 200 A.D.2d 808, 606 N.Y.S.2d 427, supra).

The court therefore finds that Counts Twelve through Fifteen adequately state a crime or offense. The indictment appropriately tracks the Predatory Sexual Assault statute, referencing the material elements of the crime in all four counts and providing defendant with adequate notice to prepare a defense.

This court's ruling that Counts Twelve through Fifteen of the indictment adequately state a crime or offense, renders moot defendant's second contention, that the counts cannot be legally amended.

Defendant...