People v. Watt

• Citation: 179 A.D.2d 697,579 N.Y.S.2d 429
• Parties: The PEOPLE, etc., Respondent, v. James WATT, Appellant.
• Decision Date: 13 January 1992
• Court: New York Supreme Court Appellate Division

Page 429

579 N.Y.S.2d 429

179 A.D.2d 697

The PEOPLE, etc., Respondent, v. James WATT, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 13, 1992.

John F. Clennan, Ronkonkoma, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (James A. Montagnino, Maryanne Luciano, and Richard E. Weill, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, HARWOOD, LAWRENCE and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from two judgments of the County Court, Westchester County (Nicolai, J.), both rendered March 12, 1987, convicting him of rape in the first degree (nine counts), sodomy in the first degree (four counts), and endangering the welfare of a child, under Indictment Number 85-00738, and rape in the first degree (two counts), and sodomy in the first degree under Indictment Number 85-01096, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are reversed, on the law, the indictments are dismissed with leave to the People, should they be so advised, to resubmit the charges to another Grand Jury (see, People v. Beauchamp, 74 N.Y.2d 639, 541 N.Y.S.2d 977, 539 N.E.2d 1105), and the matters are remitted to the County Court, Westchester County, for entry of an order in its discretion pursuant to CPL 160.50. No questions of fact have been raised or considered.

We agree with the defendant's contention that the trial court erred in denying his motion to dismiss the indictments because they were lacking in specificity. The defendant was charged under two indictments with multiple counts of rape, sodomy and endangering the welfare of children, arising out of offenses which allegedly occurred between 1980 and 1985. Each count in Indictment Number 85-00738 charged the defendant with an offense, alleged to have occurred "on or about and between August 1, 1984 and May 3, 1985". The defendant was convicted under 14 counts of this indictment. Of the three counts in Indictment Number 85-01096 of which the defendant was convicted, one charged him with sodomy in the first degree alleged to have occurred "on or about and between November 5, 1980 and December 31, 1981", and the other two counts related to conduct occurring between January 1, 1981, and December 31, 1981. In People v. Beauchamp, 74 N.Y.2d 639, 641, 541 N.Y.S.2d 977, 539 N.E.2d 1105, supra, the Court of Appeals observed:

"[We] agree with defendant's contention that all of the charges should have been dismissed on the further ground that the time period during which the crimes were alleged to have occurred (Oct. 31, 1983-Aug. 1, 1984, excluding weekends) was so excessive that it was unreasonable (see, People v. Keindl [68 N.Y.2d 410, 419, 509 N.Y.S.2d 790, 502 N.E.2d 577]; People v. Morris, 61 NY2d 290, 295 [473 N.Y.S.2d 769, 461 N.E.2d 1256]. Where an indictment charges a time interval which is so large that it is virtually impossible for a defendant to answer the charges and to prepare a defense, dismissal should follow even though the People have acted diligently and a shorter time period cannot be alleged (see, People v Keindl, supra, [68 N.Y.2d] at 419 [509 N.Y.S.2d 790, 502 N.E.2d 577]; People v. Morris, supra [61 N.Y.2d] at 295 [473 N.Y.S.2d 769, 461 N.E.2d 1256]. The time period alleged here, even considering the nature of the crime and the ages of the victims, is an excessive interval" (see also, People v. Winkler, 161 A.D.2d 743, 558 N.Y.S.2d 847; People v. Corrado, 161 A.D.2d 658, 556 N.Y.S.2d 95).

The time periods alleged at bar are 9 months, 13 months, and 12 months, respectively, and are excessive. The People contend, however, that the bills of particulars narrowed the intervals with regard to some of the counts, thus immunizing those counts from attack on specificity grounds. While we agree that the bills of particulars can operate in this manner (see, People v. Morris, 61 N.Y.2d 290, 293-294, 473 N.Y.S.2d 769, 461 N.E.2d 1256), the shortest time period alleged in the bills was five months with regard to certain counts of Indictment Number 85-00738. In People v. Corrado, 161 A.D.2d 658, 556 N.Y.S.2d 95, this court held that a period of five months was excessive. Our reference in People v. Corrado, supra, at 659, 556 N.Y.S.2d 95, to "the questionable nature of the investigation" and "the circumstances" was never intended to countermand, even assuming that it could, the clear statement of the Court of Appeals in People v. Beauchamp, supra, at 641, 541 N.Y.S.2d 977, 539 N.E.2d 1105, that, "[w]here an indictment charges a time interval which is so large that it is virtually impossible for a defendant to answer the charges and to prepare a defense, dismissal should follow even though the People have acted diligently and a shorter time period cannot be alleged". We would also note that there are multiple counts of Indictment Number 85-00738 and of Indictment Number 85-01096, which are exact replicas of each other, as are the bills of particulars relating thereto. These do not "satisfy the notice requirements of the Federal and State Constitutions" (see, People v. Morris, supra, 61 N.Y.2d 290, 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256).

Were we not reversing on specificity grounds, we would have held that reversal on all of the counts relating to those children interviewed by Ms. Eileen Treacy is warranted, owing to the delay by the People in handing over Rosario material. During the course of the investigation, the People secured the services of Ms. Eileen Treacy, who testified as to the nature of child sex abuse syndrome. She had previously interviewed seven of the alleged victims and had taken statements from them. The existence of these statements was, however, only revealed to the defendant during Ms. Treacy's testimony and after the seven children had already testified. The defendant moved to strike the testimony of the children or, in the alternative, for a mistrial. The court denied the motion but granted the defendant the option of recalling the children for cross-examination. We agree that a substantial right of the defendant was prejudiced by this delay, which could not be cured by the offer made by the court, since it would have appeared that the defendant was heaping further abuse on the children who had already testified (see, People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134). None of this, however, applies to the children who were never interviewed by Ms. Treacy.

We have examined the defendant's remaining contentions and find them to be without merit.

THOMPSON, J.P., and HARWOOD and LAWRENCE, JJ., concur.

MILLER, Justice, concurs in part and dissents in part and votes to modify the judgment under Indictment Number 85-00738, on the law, by reversing the defendant's convictions under counts 3, 4, 7, 9, 10, 12, 17, and 29, and dismissing those counts of Indictment Number 85-00738, without prejudice to the People, if they be so advised, to resubmit those charges to another Grand Jury, and as so modified, to affirm that judgment, and to reverse the judgment under Indictment Number 85-01096, and to dismiss Indictment Number 85-01096, without prejudice to the People, if they be so advised, to resubmit those charges to another Grand Jury, with the following memorandum, with which KUNZEMAN, J., concurs.

I do not agree with the majority's conclusion that the time frames alleged in Indictment Number 85-00738, as narrowed by the bill of particulars, relevant to the counts relating to the victim N.B., are so excessive as to have deprived the defendant of the notice due him to enable him to prepare a defense. I would therefore affirm so much of the judgment as convicted the defendant of rape in the first degree under counts 1, 2, 18 and 19 of Indictment Number 85-00738, and sodomy in the first degree under counts 22 and 23 of that indictment.

The defendant James Watt stands convicted of 11 counts of rape in the first degree, 5 counts of sodomy in the first degree, and 1 count of endangering the welfare of a child. The defendant perpetrated these most heinous crimes against helpless young girls under 11 years old, the youngest of whom were five years old. These victims had been entrusted, by their parents, to the care of the defendant and his codefendants who were operating an unlicensed daycare center in the basement of codefendant Jeanette Martin's Mount Vernon home. Each of these children testified in detail about the horrific sexual crimes committed upon them and their testimony was corroborated by, inter alia, verifiable medical evidence including that many suffered from sexually transmitted diseases. However, notwithstanding the truly overwhelming evidence of the defendant's guilt, I too am constrained to reverse the defendant's convictions on all but six counts of Indictment Number 85-00738.

Undeniably, the prosecution was faced with a Herculean task in trying to prepare for the trial of this action. The defendant was initially charged with crimes perpetrated against a total of 12 children. Obviously, this necessitated a great deal of investigation and preparation to gather all of the necessary witnesses and medical documentation available to prove the People's case. As part of that effort the People employed the services of Eileen Treacy, a "master level psychologist" who specializes in child sex abuse syndrome. During the course of her investigation, Ms. Treacy interviewed seven of the children who testified against the defendant. These children, T.W., K.J., R.W., S.W., M.B., N.L. and S.B., provided statements to Ms. Treacy which were incorporated into the expert's reports. Long after these seven children had testified, prior to the cross-examination of Ms. Treacy, the prosecution, for the first time, revealed the existence of these reports. Upon this revelation, the defense counsel moved for disclosure of these reports, arguing that they contained statements of these witnesses and hence, were Rosario material (CPL 240.45 [1][a]; see, ...