Opinion
2010KN089983.
Decided February 16, 2011.
Charles J. Hynes, District Attorney, Kings County, by Julie Cho, Esq., Assistant District Attorney, for the People.
Richard Korn, Esq., for the Defendant.
Defendant is charged with one count each of Sexual Abuse in the First Degree (PL Sec. 130.65), a Class D felony, Endangering the Welfare of a Child (PL Sec. 260.10), a Class A misdemeanor, Sexual Abuse in the Third Degree (PL Sec. 130.55), a Class B Misdemeanor, and Harassment in the Second Degree (PL Sec. 240.26), a violation.
According to the Criminal Court Complaint, on or about August 2, 2006, Defendant did place his hand on the complainant's vagina. At the time of the offense, Complainant was approximately 6 years old.
Defendant was arrested in this matter on November 11, 2010, and arraigned the next day.On November 16, 2010, the People dismissed the felony charge, and filed a superceding complaint, charging one count each of Sexual Abuse in the Second Degree (PL Sec. 130.60), and Endangering the Welfare of a Child (PL Sec. 260.10), both Class A misdemeanors, Attempted Sexual Abuse in the Second Degree (PL Sec. 110/130.60), and Attempted Endangering the Welfare of a Child (PL Sec. 110/260.10) both Class B Misdemeanors, and Harassment in the Second Degree (PL Sec. 240.26), a violation.
According to the discovery provided to the Defense and Court by the People, the incident was reported on or about November 11, 2010, the date of Defendant's arrest in this matter.
By motion dated December 13, 2010, Defendant moved to dismiss the accusatory instrument for failure to commence this matter within the two year limitations period for misdemeanors under CPL Sec. 30.10 (1)(c) and the one year limitations period for petty offenses under CPL Sec. 30.10 (1)(d).
On February 3, 2011, Defense Counsel withdrew his motion; however, on February 10, 2011, that attorney was relieved by the Court on his own motion, citing irreconcilable differences with the defendant. On that same date, the Court appointed the current counsel to represent defendant. Mr. Korn adopted the motion to dismiss dated December 13, 2010, and in the absence of any prejudice to the People, the application was granted, and the motion restored to consideration.
The Court has now reviewed the Motion to Dismiss dated December 13, 2010, as well as the People's Affirmation in Opposition dated January 27, 2011.
For the reasons stated below, the motion to dismiss the charges of Endangering the Welfare of a Child (PL Sec. 260.10), Attempted Endangering the Welfare of a Child (PL Sec. 110/260.10), and Harassment in the Second Degree (PL Sec. 240.26), is granted. The motion to dismiss Sexual Abuse in the Second Degree (PL Sec. 130.60), and Attempted Sexual Abuse in the Second Degree (PL Sec. 110/130.60) is denied.
Under CPL Sec. 30.10(1) (c), "A prosecution for a misdemeanor must be commenced within two years after the commission thereof." CPL Sec. 30.10(1)(d) states that "a prosecution for a petty offense must be commenced within one year after the commission thereof." However, CPL Sec. 30.10(3)(f) provides that "for the purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age . . . the period of limitations shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency . . . whichever occurs earlier."
Besides the offenses enumerated at Art. 130 of the Penal Law, the only other sections mentioned in CPL Sec. 30.10(1)(f) is PL Sec. 255.25 (Incest in the Third Degree) and PL Sec. 263.05 (Use of a Child in a Sexual Performance).
When interpreting a law, a court must always look to the intention of the Legislature. "The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction." Statutes, Sec. 94, McKinney's Book 1, p 188. Thus, "it must be presumed that the legislature intended to do that which it did and intended to omit that which it omitted. The Latin maxim expressio unius est exclusio alterius is an established principle of statutory construction." Matter of Kenneth J., 102 Misc 2d 415, 418, 423 NYS2d 821 (Fam Ct Richmond Cty 1980).
Further, "as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." See, People v. Quinto , 77 AD3d 76 , 81, 907 NYS2d 59 (2d Dept., 2010) (citations omitted).
In reading the plain words of CPL Sec. 30.10(3)(f), it is clear that the legislature intended to "carve out" an exception to the two year statute of limitations applicable to misdemeanors for offenses prosecuted under Art. 130 of the Penal Law. Thus, there can be no dispute that both counts of Sexual Abuse in the Second Degree (PL Sec. 130.60), and Attempted Sexual Abuse in the Second Degree (PL Sec. 110/130.60) were brought in a timely fashion. Though the act alleged occurred on or about August 2, 2006, just prior to the child's seventh birthday, the crime was reported on or about November 11, 2010, approximately seven years prior to the child's eighteen birthday. Thus, the motion to dismiss these two charges is denied.
The same, however, cannot be said for the remaining charges. No where in CPL Sec. 30.10(3)(f) is there mention of PL Sec. 260.10 or 240.26. Thus, of necessity, these charges, and the lesser included charge of PL Sec. 110/260.10 must be dismissed. See, Quinto, supra, 77 AD3d at 85; People v. Rogner, 265 AD2d 688, 697 NYS2d 363 (3d Dept, 1999) (where People concede dismissal of 4 counts of Endangering the Welfare of a Child as time-barred under CPL Sec. 30.10(1)(c)); People v. Heil , 70 AD3d 1490 , 1491, 894 NYS2d 664 (4th Dept., 2010) ("the court erred in denying that part of defendant's omnibus motion seeking to dismiss the count of endangering the welfare of a child as time-barred. The period of limitations for that misdemeanor was two years, and the tolling provision of CPL Sec. 30.10(3)(f) does not apply to that offense.") (citations omitted).
For another discussion of the legislative intent of CPL Sec. 30.10(3)(f), see People v. Hammond, 7 Misc 3d 1028(A), 80 NYS2d 239 (S Ct, Monroe Cty, 2005).
All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.