People v. Morris

• Decision Date: 28 February 1984
• Citation: 461 N.E.2d 1256,473 N.Y.S.2d 769,61 N.Y.2d 290
• Parties: , 461 N.E.2d 1256 The PEOPLE of the State of New York, Appellant, v. Warner A. MORRIS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 769

473 N.Y.S.2d 769

61 N.Y.2d 290, 461 N.E.2d 1256

The PEOPLE of the State of New York, Appellant, v. Warner A. MORRIS, Respondent.

Court of Appeals of New York.

Feb. 28, 1984.

Larry M. Himelein, Dist. Atty., for appellant.

Raymond W. Bulson, Portville, for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

Although an indictment that specifies the date and time when an offense occurred would be preferred, such precision is not always necessary. An indictment will not be dismissed as defective under CPL 200.50 with respect to the time period alleged for the commission of a crime, if it or, in some instances, the bill of particulars provides a reasonable approximation, under the circumstances of the individual case, of the date or dates involved. Here, the indictment charging that defendant sexually abused two young girls was reasonably precise under the circumstances, notwithstanding that the crimes were alleged to have been committed within a 24-day period.

Defendant was indicted in April, 1981 for rape and sodomy, each in the first degree. The rape charge arose out of defendant's alleged sexual intercourse with a child who, at the time, was six years old and lived in defendant's home. The sodomy count was founded on defendant's asserted deviate sexual intercourse with his daughter, who was then five years old. The indictment averred that both events occurred "during the month of November 1980."

On May 1, 1981, the People served a demand for a notice of alibi. Defendant, in turn, demanded a bill of particulars specifying the exact times, places, and dates of the alleged crimes. The People responded by narrowing the times to "on or about and between Friday, November 7, 1980 and Saturday, November 30, 1980." The crimes purportedly occurred at defendant's home. The exact times, however, were stated to be unknown to the People. ¹

Defendant answered the alibi demand by stating that, because the exact dates of the offenses were not set forth, he was unable to determine whether, at the time of the commission of the charged offenses, he was at a place other than the scene of the crimes. He maintained that he would offer an alibi, if such existed, when the exact dates and times of the crimes were specified. On October 24, 1981, defendant moved to dismiss the indictment as defective on the ground that neither the indictment nor the bill of particulars set forth a designated date on or about when each crime occurred, as required by CPL 200.50 (subd. 6). This assigned defect, it is contended, deprived defendant of adequate notice guaranteed under the Federal and State Constitutions (U.S. Const., 6th Amdt.; N.Y. Const., art. I, § 6).

Trial Term granted defendant's motion, and the Appellate Division, 464 N.Y.S.2d 87, 94 A.D.2d 959, affirmed. This court now reverses.

One of the essential functions of an indictment in modern practice is to provide the defendant with sufficient information regarding the nature of the charge and the conduct which underlies the accusation to allow him or her to prepare or conduct a defense (see People v. Iannone, 45 N.Y.2d 589, 594, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Fitzgerald, 45 N.Y.2d 574, 579-580, 412 N.Y.S.2d 102, 384 N.E.2d 649). It serves to satisfy the notice requirements of the Federal and State Constitutions (see People v. Iannone, supra, at 45 N.Y.2d p. 594, 412 N.Y.S.2d 110, 384 N.E.2d 656). To fulfill this purpose, the CPL sets out objective requirements for an indictment by which its sufficiency may be tested (see CPL 200.50). Among other things, it must contain "[a] plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and the defendant's * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation" (CPL 200.50, subd. 7, par. [a] ). Generally, "the indictment need only allege where, when and what the defendant did" (Pitler, NY Crim Prac Under the CPL, § 6.21, p 302). As an attendant function, it should sufficiently identify the alleged crime so that the constitutional prohibition against double jeopardy may be used by a defendant to bar a subsequent prosecution for the same offense (see People v. Iannone, supra, at 45 N.Y.2d p. 594, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Helmer, 154 N.Y. 596, 600, 49 N.E. 249).

Failure to meet the CPL requirements for an indictment may result in dismissal. Not all defects will require such a result, however, inasmuch as the defect may be cured in some circumstances by providing the missing information in the bill of particulars (see People v. Iannone, 45 N.Y.2d 589, 597, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656, supra; People v. Fitzgerald, 45 N.Y.2d 574, 579-580, 412 N.Y.S.2d 102, 384 N.E.2d 649, supra; People v. Bogdanoff, 254 N.Y. 16, 24, 171 N.E. 890). This is true when the claimed shortcoming is an indefinitely stated time. Of course, this procedure must not subject a defendant to "actual danger of trial upon a charge upon which he has not been indicted" (People v. Bogdanoff, supra, at p. 28, 171 N.E. 890).

It is also important to note that "the requirements for a valid indictment will vary with the particular crime involved, and what is sufficient to charge [one crime] would be insufficient with respect to many other crimes" (People v. Iannone, supra, 45 N.Y.2d at p. 599, 412 N.Y.S.2d 110, 384 N.E.2d 656). The indictment, or the bill of particulars, must state such specifics "as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged" (People v. Bogdanoff, supra, 254 N.Y. at p. 24, 171 N.E. 890).

With these general principles in mind, consideration must be given to the information to be included in an indictment under the statute with respect to the interval when a crime allegedly occurred. The explicit language of the statute does not require the exact date and time. ² Moreover, this provision is stated in the disjunctive: the crime must have been committed "on, or on or about, a designated date, or during a designated period of time" (CPL 200.50, subd. 6 [emphasis added] ).

No further restrictions appear on the face of the statute regarding whether a single date is mandatory in an indictment for a particular crime or crimes. Nor is there any restriction on the length of the designated period of time which may be stated. Thus, the present indictment, as refined by the bill of particulars, is facially sufficient under the CPL because a "designated period of time" is stated.

This, however, does not conclude the inquiry. As well as measuring the allegations in this particular indictment against the statutory requirements, consideration must be given to whether the period of time, as designated in the accusatory instrument, serves the function of protecting defendant's constitutional right "to be informed of the nature and cause of the accusation" (U.S. Const., 6th Amdt.; N.Y. Const., art. I, § 6; see Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240; People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656, supra ). The notice requirement of the Sixth Amendment is met if in addition to stating the elements of the offense, "the indictment contains such description of the offense charged as will enable [defendant] to make his defense and to plead the judgment in bar of any further prosecution for the same crime" (Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 40 L.Ed. 606; see Russell v. United States, supra, 369 U.S. at pp. 763-764, 82 S.Ct. at 1046-1047). In order for a defendant to make his defense "with all reasonable knowledge and ability" and to have "full notice of the charge", it is important that the indictment "charge the time and place and nature and circumstances of the offense with clearness and certainty" (United States v. Cruikshank, 92 U.S. 542, 566, 23 L.Ed. 588; see United States v. Weiss, 491 F.2d 460, 466; United States v. Salazar, 485 F.2d 1272, 1277). The standard is that of reasonableness; "[r]easonable certainty, all will agree, is required in criminal pleading" (United States v. Cruikshank, supra, 92 U.S. at p. 568, 23 L.Ed. 588; see People v. Bogdanoff, 254 N.Y. 16, 24, 171 N.E. 890 supra ). The lack of a precise date is not a fatal defect if it is not a substantive element of the crime (see United States v. Antonelli, 439 F.2d 1068, 1070; People v. Jones, 129 App.Div. 772, 113 N.Y.S.2d 1097, affd. 195 N.Y. 547, 88 N.E. 1127; People ex rel. White v. McMann, 8 A.D.2d 921, 187 N.Y.S.2d 199). When time is not an essential element, the indictment is often permitted to state the time in approximate terms (see United States v. Bagaric, 706 F.2d 42, 61; United States v. Tramunti, 513 F.2d 1087, 1113; United States v. Salazar, 485 F.2d 1272, 1277, supra ). 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.

On a motion to dismiss the indictment for failure to sufficiently...