People v. Smiley

• Decision Date: 26 August 2010
• Docket Number: No. 2010QN022872.,2010QN022872.
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Wolfgang SMILEY, Defendant.
• Court: New York Criminal Court

28 Misc.3d 1229

958 N.Y.S.2d 63

2010 N.Y. Slip Op. 51541

The PEOPLE of the State of New York, Plaintiff,

v.Wolfgang SMILEY, Defendant.

No. 2010QN022872.

Criminal Court, City of New York, Queens County.

Aug. 26, 2010.

Benedict Gullo, Jr., for defendant.

ADA Erin Fisher, for the People.

ELISA S. KOENDERMAN, J.

The defendant, Wolfgang Smiley, is charged with Assault in the Third Degree, Penal Law [“PL”] § 120.00(1), Forcible Touching, PL § 130.52, Sexual Abuse in the Second Degree, PL § 130.60(2), Endangering the Welfare of a Child, PL § 260.10(1) and Harassment in the Second Degree, PL § 240.26(1). The defendant moves to dismiss the counts of Forcible Touching, Sexual Abuse in the Second Degree, Endangering the Welfare of a Child and Assault in the Third Degree as jurisdictionally and facially deficient. The defendant also moves to dismiss the counts of Forcible Touching, Sexual Abuse in the Second Degree and Endangering the Welfare of a Child as time-barred by the statute of limitations. Because the criminal action against the defendant was commenced within the period of limitation prescribed for each offense, the Court denies the defendant's motion to dismiss on that ground. Nevertheless, the Court dismisses the charges of Forcible Touching and Sexual Abuse in the Second Degree as duplicitous, with leave granted to the People to move to add the appropriate number of counts for each charge based upon the factual allegations of the complaint. The Court upholds the charges of Assault in the Third Degree, Endangering the Welfare of a Child and Harassment in the Second Degree as facially sufficient.

The complaint alleges that the defendant committed the charged crimes on or about and between November 1, 2007 and December 31, 2009. It states that in November 2007, inside xx–xx xxxxx Avenue in Queens County, New York, the defendant gave alcoholic beverages to his daughter, C., and touched her vagina. Thereafter, between January and June of 2008, the defendant again gave alcoholic beverages to his daughter and touched her vagina. During this period, he also grabbed her breasts, squeezed her buttocks and called her into his room where he exposed his penis to her. His daughter was less than fourteen years old at the time of these incidents. Subsequently, on December 22, 2009, the defendant slapped her in the face and back and shoved her against a wall, causing her to suffer redness and swelling to her face, as well as substantial pain, annoyance and alarm. She was fifteen years old at the time of this last incident.

STATUTE OF LIMITATIONS

The defendant argues that the charges of Forcible Touching, Sexual Abuse in the Second Degree and Endangering the Welfare must be dismissed since they were not brought within the two year period of limitation applicable to misdemeanor prosecutions pursuant to Criminal Procedure Law [“CPL”] § 30.10(2)(c).

Notwithstanding this provision, the period of limitation for the prosecution of a sexual offense defined in Article 130 of the Penal Law “committed against a child less than eighteen years of age ... shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier” (CPL § 30.10[3][f] ).

Forcible Touching and Sexual Abuse in the Second Degree are both sexual offenses defined in Article 130 of the Penal Law (PL §§ 130.52 and 130.60 [2] ). The complaint alleges that the defendant committed these offenses against his daughter on or about and between November 2007 and December 2009, when she was thirteen and fifteen years old, respectively. Hence, the exception under CPL § 30.10(3)(f) applies to the period of limitation for prosecution of these offenses. To be viable, a criminal action for these offenses must be commenced within two years after the complainant turns eighteen or the offenses are reported to law enforcement or the statewide central register of child abuse and maltreatment, whichever comes first. In their affirmation in opposition to the defendant's motion, the People assert that the incidents underlying these offenses were not reported to the Administration for Children's Services [“ACS”] until April 13, 2010. Additionally, the police reports, which the People provided in response to the defendant's demand for discovery, indicate that the incidents were not reported to the police until that same date. The police reports further indicate that the complainant's date of birth is June xx, 1994 and that she was fifteen years old at the time the incidents were reported. Accordingly, the two year period of limitation for these offenses did not start until April 13, 2010, when the incidents were reported to the police and ACS. The instant criminal action was commenced a mere two days later on April 15, 2010. Accordingly, the defendant's motion to dismiss the charges of Forcible Touching and Sexual Abuse in the Second Degree as time-barred is denied.

Endangering the Welfare of a Child, even where substantially based, as here, upon a pattern of sexual abuse against a child, is not encompassed within the exception to the statute of limitations under CPL § 30.10(3)(f). Therefore, a prosecution for Endangering the Welfare of a Child must be commenced within two years after the commission of the crime (CPL § 30.10[2][c] ). Endangering the Welfare of a Child “by its nature may be committed by one act or by multiple acts and readily permits characterization as a continuing offense” (People v. Keindl, 68 N.Y.2d 410, 421 [1986] ). Because “the statutory definition of this crime does not necessarily contemplate a single act ... a defendant may be guilty of this crime by virtue of a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime” ( id.;see also People v. Simmons, 92 N.Y.2d 829, 831 [1998];Cowley v. People, 83 N.Y. 464, 472 [1881] ). In other words, simultaneously coexisting events and circumstances, when taken as a whole, may constitute the crime even if each circumstance, when taken in isolation, might not ( see People v. Hitchcock, 98 N.Y.2d 586, 592 [2002];see also People v. Hogle, 18 Misc.3d 715, 718–719, 848 N.Y.S.2d 868 [Crim Ct, N.Y. County 2007] ). Here, the defendant is charged with Endangering the Welfare of a Child as a continuing offense, predicated upon his engaging in a pattern of sexually and physically abusive behavior toward his daughter over approximately two years, beginning in November 2007 and ending in December 2009 ( see Keindl, 68 N.Y.2d at 421, 509 N.Y.S.2d 790, 502 N.E.2d 577). The instant prosecution, commenced four months after the crime concluded, is well within the two year period of limitation for this offense. The defendant's motion to dismiss this charge as time-barred therefore also is denied.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law [“CPL”] § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v. Dumas, 68 N.Y.2d 729 [1986];see also People v. Alejandro, 70 N.Y.2d 133 [1987] ). Where the factual allegations contained in an information “give an accused sufficient notice 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];see also People v. Konieczny, 2 N.Y.3d 569 [2004];People v. Jacoby, 304 N.Y. 33, 38–40 [1952];People v. Knapp, 152 Misc. 368, 370 [1934],affd242 App.Div. 811, 275 N.Y.S. 637;People v. Allen, 92 N.Y.2d 378, 385 [1998];People v. Miles, 64 N.Y.2d 731, 732–733 [1984];People v. Shea, 68 Misc.2d 271, 272 [1971];People v. Scott, 8 Misc.3d 428, 429 [2005] ).

To be facially sufficient, each count of an information must charge only one offense ( seeCPL § 200.30; see People v. Todd, 119 Misc.2d 488, 489–490, 463 N.Y.S.2d 729 [Crim Ct, N.Y. County 1983]; see also People v. Mitchell, 151 Misc.2d 208, 211, 573 N.Y.S.2d 124 [Crim Ct, Kings County 1991] ). The statutory bar against duplicitous counts applicable to indictments is incorporated by reference into CPL § 100.15, which prescribes the form and content of an information ( see Todd, 119 Misc.2d at 489, 463 N.Y.S.2d 729). The bar against duplicitous counts reflects the “general policy of the law that aims to apprise a person charged with a crime of the exact nature of the case that the People will attempt to prove against him, to the end that he may make full preparation to meet it” (People v. Klipfel, 160 N.Y. 371, 374 [1899];see also Todd, 119 Misc.2d at 489, 463 N.Y.S.2d 729). “Charging more than one crime in a single count violates this basic [common law] principle” (Todd, 119 Misc.2d at 490, 463 N.Y.S.2d 729). The prohibition against duplicity not only furthers adequate notice to a defendant and prevents double jeopardy, it ensures the reliability of a unanimous verdict ( see Keindl, 68 N.Y.2d at 417, 509 N.Y.S.2d 790, 502 N.E.2d 577). Therefore, where an information alleges a crime which is made out by the commission of one act, that must be the only act alleged in the count ( see id.). In other words, acts which separately and individually make out distinct crimes must be charged in separate and distinct counts ( see id.). Where one count alleges the commission of a particular offense occurring repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous ( see id.).

A count is not duplicitous if it...