People v. Sanchez

• Decision Date: 27 October 1994
• Citation: People v. Sanchez, 618 N.Y.S.2d 887, 84 N.Y.2d 440, 643 N.E.2d 509 (N.Y. 1994)
• Parties: , 643 N.E.2d 509 The PEOPLE of the State of New York, Respondent, v. Victor SANCHEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 887

618 N.Y.S.2d 887

84 N.Y.2d 440, 643 N.E.2d 509

The PEOPLE of the State of New York, Respondent, v.Victor SANCHEZ, Appellant.

Court of Appeals of New York.

Oct. 27, 1994.

Kevin F. Casey, and Philip L. Weinstein, New York City, for appellant.

Richard A. Brown, Dist. Atty., of Queens County, Kew Gardens (Jay L. Weiner and Steven J. Chananie of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Justice.

Defendant was charged in a 35-count indictment with the crimes of grand larceny in the second degree (three counts), grand larceny in the third degree (three counts), criminal impersonation in the second degree (nine counts), scheme to defraud in the first degree (one count), fortune telling (nine counts), coercion in the first degree (nine counts), and menacing (one count).Following trial on the indictment, defendant was found guilty by the jury of one count of grand larceny in the second degree, four counts of grand larceny in the third degree, one count of scheme to defraud in the first degree, four counts of criminal impersonation in the second degree, and five counts of fortune telling.

The Appellate Division, Second Department, modified by, inter alia, reducing the grand larceny in the second degree count to grand larceny in the third degree, and reversing two of the convictions for grand larceny in the third degree for insufficient notice in the accusatory pleadings (195 A.D.2d 578, 600 N.Y.S.2d 946).

Defendant now challenges the remaining convictions--three counts of grand larceny in the third degree, one count of scheme to defraud in the first degree, four counts of criminal impersonation in the second degree, and five counts of fortune telling--based on asserted fatal defects in the indictment.For the reasons that follow, we modify the order of the Appellate Division to reverse the convictions on the three counts of grand larceny, the five counts of fortune telling, and three of the four counts of criminal impersonation and direct dismissal of those counts.The convictions for scheme to defraud and for one count of criminal impersonation stand.

I.

The indictment charging defendant with 35 crimes fixed the time periods of the criminal acts in spans ranging from four months to five years, failed to identify the victims of the crimes, and alleged only that the crimes took place somewhere in Queens County.The People's voluntary disclosure form gave no additional details as to the individual counts.Instead it simply described a scheme whereby defendant, "operating as a 'parapsychologist' and counselor * * * held himself out as an FBI agent and threatened persons known to the grand jury with deportation, humiliation, exposure, physical harm and damage to reputation, and induced the above persons known to the grand jury to pay monies in excess of [$]50,000 and to attempt to obtain further monies illegally as well as obtain cocaine [sic]".

The defendant requested a bill of particulars specifying information about the complainants and the alleged crimes.The People's bill of particulars did not set forth the dates on which those 35 crimes allegedly were committed.Nor did it name the complainants.Instead, it summarized superficially the Grand Jury testimony of each complainant designating each complainant by number.The bill of particulars did not match each anonymous, numbered victim with corresponding counts of the indictment.

Six months before trial defense counsel was afforded additional discovery by being permitted to take notes from a copy of the Grand Jury minutes, from which the names of the witnesses had been redacted.On the eve of trial, defendant was provided with a copy of the redacted Grand Jury minutes and a witness list.At no time, however, did the prosecution link the names or numbers of victims to the counts of the indictment.In fact it was not until all of the complaining witnesses had testified and been cross-examined that the prosecutor was willing to commit the People as to which complainant corresponded to which count of grand larceny.

II.

A criminal indictment serves three purposes.First, it provides "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense"(People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656;see also, People v. Morris, 61 N.Y.2d 290, 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256;People v. Keindl, 68 N.Y.2d 410, 416, 509 N.Y.S.2d 790, 502 N.E.2d 577).Second, the indictment provides "some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution" (People v. Iannone, supra, 45 N.Y.2d at 594, 412 N.Y.S.2d 110, 384 N.E.2d 656[citingRussell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050-51, 8 L.Ed.2d 240].Finally, an indictment protects a criminal defendant from prosecution at another time for the same offense.Therefore, "an indictment must allege the crime charged with sufficient specificity to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense"(People v. Keindl, supra, 68 N.Y.2d at 416, 509 N.Y.S.2d 790, 502 N.E.2d 577;see also, People v. Morris, supra, 61 N.Y.2d at 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256;People v. Iannone, supra, 45 N.Y.2d at 595, 412 N.Y.S.2d 110, 384 N.E.2d 656.)

These requirements are rooted in statute(CPL 200.50, 200.30) and in our State's Constitution(N.Y. Const, art. I, § 6).Where the indictment itself is inadequate, dismissal may be required.In some instances, however, the bill of particulars may be used to flesh out an inadequate indictment (People v. Morris, supra, 61 N.Y.2d at 295, 473 N.Y.S.2d 769, 461 N.E.2d 1256).In any case, "[t]he 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 the relevant circumstances"(id., at 295, 473 N.Y.S.2d 769, 461 N.E.2d 1256).

III.

Defendant challenges the sufficiency of the indictment for the three remaining counts of grand larceny as to which he was convicted.We conclude that the indictment, even as augmented by the bill of particulars, was insufficient as to those grand larceny counts.The indictment accused defendant of taking more than $50,000 from each of three unnamed persons, somewhere in Queens County, some time in a 4-month, 15-month, and 5-year period respectively.The bill of particulars listed by number nine unnamed victims of which four could have corresponded to the three second degree grand larceny counts.While the bill of particulars gave some additional details as to the manner in which each of the numbered victims was defrauded, it did not in any other way connect any specifically numbered victim to a single second degree grand larceny count of the indictment.

The foregoing information contained in the accusatory papers was wholly inadequate to allow defendant to put on a defense.He was not informed by the criminal pleadings of any narrowing information regarding the victims' identities or the time or place of the criminal activity.Defense counsel was reduced to impeaching the individual credibility of the prosecution witnesses after they testified on direct examination, without knowing--even then--to which count the witness' testimony was relevant.Under the circumstances of this case, the defendant was entitled to more information in order to prepare and wage a defense.

Although there is no per se rule that requires an indictment to name the victim for each count alleged (see, e.g., People v. Paolillo, 307 N.Y. 736, 121 N.E.2d 548, affg.15 Misc.2d 1031, 132 N.Y.S.2d 161;People v. Coleman, 178 A.D.2d 842, 577 N.Y.S.2d 900, revd. on other grounds81 N.Y.2d 826, 595 N.Y.S.2d 384, 611 N.E.2d 285), the indictment and bill of particulars must provide sufficient alternative information identifying the charged crime to satisfy statutory and constitutional requirements.Here, defendant faced a complex 35-count indictment which not only left victims unnamed but provided no definiteness as to the dates, times, or places of the charged criminal activity.

The indictment and bill of particulars also failed to satisfy their two other functions.They were so vague as to allow the prosecution to put on its witnesses and then decide which witness testified to which count.At one point during the trial, the prosecutor declared that a complaining witness that he originally thought had testified to grand larceny in the second degree had really only testified to grand larceny in the third degree.The prosecutor did not shift his theory until after a more credible complaining witness gave testimony that could support a grand larceny in the second degree charge.The information in the indictment and bill of particulars is insufficient to allow us to determine if the defendant was in fact tried for the crimes charged, or for others seized upon by the prosecutor at trial.

Moreover, the indictment and bill of particulars in this case would not be useful to the defendant if he were charged in a subsequent proceeding on similar crimes arising during the same five-year time span.They are so nonspecific as to put the defendant at risk of being tried twice for the same crimes.

The People urge that they adequately supplemented the deficient indictment and bill of particulars by allowing...