Opinion
04-01238.
Decided October 28, 2005.
Anthony Molea, Esq., New Rochelle, NY, Assistant District Attorney.
Patrick J. Reville, Esq., Reville and Cullen, New Rochelle, NY Attorney for Defendant.
Defendant Michael Hiland ("Defendant" or "Hiland") is charged on a Misdemeanor Information with two A Misdemeanors, Sexual Abuse is the Second Degree (Penal Law § 130.60(2)) and Endangering the Welfare of a Child (Penal Law § 260.10(1)) (the "Information"). The alleged illegal acts that form the fulcum of the charges allegedly took place, in the words of the Information, "at about summer of 2002." The Information was filed on June 22, 2004, approximately two years after the alleged illicit conduct took place, and when the complainant was twelve years old.
In May, 2005, Defendant served an Omnibus Motion, seeking a Sandoval Hearing, certain discovery and to compel the People to provide a Bill of Particulars regarding details of the alleged criminal conduct including the "exact date(s), place(s), and time(s)" it took place and "whether or not it is claimed that any other person(s) was/were present and/or witness thereto." In response to Defendant's motion, the People consented to the Sandoval hearing and agreed to provide Defendant with the items of discovery "pursuant to and limited by CPL Section 240.20(1) (a-g)", to the extent "that such items exist in connection with this case and are in the possession, custody, control, or otherwise available to this office."
Putting aside the fact that, with respect to discovery, the People's response may well be viewed as an exercise in question begging, the Defendant, by his response to the People's papers, appears to be satisfied by it, pending his review of the materials that the People eventually provide. The People's response to Defendant's request for a Bill of Particulars, however, is another matter. In their response, the People, in essence, refuse to provide any factual information regarding the dates or times of the alleged offenses, the places they allegedly occurred and possible witnesses beyond the statements contained in the Information itself, contending that "the language of the Information is sufficient to give the defendant adequate notice to enable him to prepare his defense for trial."
Significantly, the People do not state that they lack or are unable, with reasonable diligence, to obtain these factual details. Rather, they claim that Defendant is simply not entitled to them because the People have sufficiently delineated the time and place of the events at issue through the statement in the Information that the events, of indeterminate number, all took place at the location stated in the Information "at about summer of 2002." In reply to the People's papers, Defendant argues that such a response is inadequate and effectively deprives him of a reasonable opportunity to properly prepare a defense. For the reasons set forth below, the Court holds that the Defendant has the better of the argument, and the People will be required to more fully respond to the Request for the Bill of Particulars regarding the date, time and place of each incident that they contend forms the factual basis of the Information, as well as whether the people contend that any other person was present on each such occasion, to the extent that the People are able, with reasonable diligence, to do so.
Nature of Bills of Particulars
The law is clear that a defendant may not use a request for a Bill of Particulars as a discovery device, nor as a vehicle to compel the People to lay bare their proof or articulate how they intend to try their case. See, e.g., People v. Raymond G., 54 AD2d 596 (4th Dept. 1976) ("A bill of particulars is not intended to furnish a defendant with a preview of the prosecution's proof, but has its sole function the more specific definition of the crime or crimes charged in the indictment."); People v. Choi, 259 AD2d 423, 424 (1st Dept. 1999) ("[T]he prosecution was not required to include evidentiary material in a bill of particulars."); People v. Coletti, 39 Misc 2d 580, 581 (Co. Ct. West. Co. 1963).
Rather, the purpose of a Bill of Particulars is to have the People provide some factual detail beyond the oftentimes bare bones allegations contained in an information or indictment so that the defendant is better apprised of the charges against him and can more adequately prepare for trial. Accordingly, the People are not generally required to divulge specific items of proof such as the "particular portion of the building allegedly entered by (defendant)" in the context of a burglary prosecution, ( People v. Raymond G, 54 AD2d 596 (4th Dept. 1976); the prosecutor's "theory of his proof" such as the "basis of the allegation in the indictment that the defendant knew said property was stolen" ( People v. Coletti, 39 Misc 2d 580, 581 (Co. Ct., West. Co. 1963)); or in a prosecution for sodomy, the precise "nature of the deviate sexual intercourse charged in the . . . indictment" since such information is "evidentary and must be proved as part of the People's case". ( People v. Reilly, 85 Misc 2d 702, 712 (West. Co. Ct. 1976).)
Thus, in evaluating the propriety of a defendant's request, the courts must walk a fine line between making sure that a defendant is afforded the factual detail necessary to flesh out the People's allegations and prepare for trial, without compelling the People to divulge their trial evidence or articulate, at such an early stage of the case, their theory of proof which, by trial, may change. However, in the instant case, Defendant is not making or asserting the right to such a broad demand. Instead, Defendant seeks only the elementary factual detail of the time and place of each incident as to which he is charged, and whether any witness was present.
In such a situation, where a defendant seeks, by request for a Bill of Particulars, to ascertain the time and place of the occurrences underlying the indictment or information, courts have proven sympathetic to the defendant's position, and for good reason: if defendant does not know such basic factual allegations, he may well be hamstrung in his ability to prepare and present a defense, such as an alibi, to the charges, and thus be ill-prepared for trial. For example, in the Fourth Department case of People v. Cobey, 184 AD2d 1002 (4th Dept. 1992), the Appellate Division reversed defendant's conviction and ordered a new trial based upon the trial court's refusal to compel the People to provide "more specific information concerning the time, date and place of the alleged crimes" of rape, sodomy, sexual abuse and endangering the welfare of a child. The indictment had accused the defendant with committing such criminal acts "during October of 1986, November of 1987, July of 1988 and February of 1989." Defendant, through a request for a Bill of Particulars, sought more specific information regarding the time, date and place of the alleged criminal activity and moved to compel a response when none was forthcoming. The trial court denied the motion, and defendant was ultimately convicted. On appeal, the People conceded that the trial court erred in denying defendant's motion, but argued that such error was harmless. The Fourth Department rejected the People's argument, holding that since the trial court's ruling effectively deprived defendant of his "fundamental right to timely and adequate notice of the charges against him," reversal and a new trial was mandated.
As the Court held,
"We reject the People's contention that the error was harmless and that defendant was not prejudiced by the denial of his motion. `It is beyond cavil that a defendant has a basic and fundamental right to be informed of the charges against him so that he will be able to prepare a defense' ( People v. Iannone, 45 NY2d 589, 599). In order to prepare and conduct his alibi defense adequately, defendant required more specific information concerning the time and place of the alleged criminal acts ( see, People v. Britt, 48 Misc 2d 705; see also, People v. Villani, 59 NY2d 781, 783). Therefore, the trial court's denial of the motion for a bill of particulars deprived defendant of his fundamental right to timely and adequate notice of the charges against him."
Id. at 1003 (emphasis added). See also, e.g., People v. Sommer, 77 Misc 2d 840, 845 (Co. Ct. Nassau Cty. 1974) (While denying certain bill of particulars requests as impermissibly seeking the "theory upon which the prosecutor will proceed at trial," the court directed the prosecutor to provide "to the best of his ability" the "time and place when the larcenies alleged . . . took place.") People v. Raymond G., 54 AD2d 596 (4th Dept. 1976) ("[T]he bill provided by the People plainly fulfills its intended function by setting forth the date, time and location of the commission of the alleged crime and a detailed list of the items of property allegedly stolen by defendant"); People v. Coletti, 39 Misc 2d 580, 581 (Co. Ct. West.Co. 1963) ("The defendant is . . . entitled to know where and when the acts [of buying and receiving stolen property] are alleged to have taken place. The District Attorney is directed to furnish the particulars as to the place or places the acts took place, and the dates insofar as possible, otherwise the approximate dates.") People v. Lupia, 65 Misc 2d 755, (Co. Ct. Suffolk Co. 1970).
The Court does note, however, that some courts have demanded less of the prosecution in cases, such as the instant case, where the alleged victims are minors. In such cases, courts frequently allow the prosecutor to provide less detail to the defense than would otherwise obtain. However, in those cases, the courts' decisions usually turn on the issue of whether the prosecution actually has access to such detailed information; in light of the age, the lack of maturity of the alleged victim and the nature of the offenses themselves, such factual detail may not be available to the People at the nascent stage of the case.
For example, in the Court of Appeals case of People v. Morris, 61 NY2d 290 (1984), defendant was charged with rape and sodomy of two children, five and six years of age respectively at the time of the alleged crimes, who had lived in defendant's home, one of whom was defendant's daughter. In the original indictment, the crimes were alleged to have occurred within an unspecified 24 day period. In response to the People's demand for a notice of alibi, defendant demanded a bill of particulars specifying the exact time, place and dates of the alleged crimes. In response, the People, further described the dates as "on or about and between Friday, November 7, 1980 and Saturday, November 31, 1980", and stated that the crimes occurred in defendant's home. The People stated, however, that they did not know the exact times of the crimes. Defendant responded to the alibi demand by stating that he could not answer it unless he was advised of the exact times of the alleged commission of the offense, and moved to dismiss the indictment "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)." Id. at 292-293. The trial court granted defendant's motion and its decision was affirmed by the Appellate Division. The Court of Appeals reversed.
In its decision, the Court emphasized that because of their age, the alleged victims, were unable to provide more precise dates and times to the prosecution, as the People stated in their papers. Under the circumstances and because, for the crimes charged, "the dates are not material elements" and defendant had been adequately informed of other facts or details such as the place of the alleged crimes and the witnesses present, the Court held that the period set forth in the indictment "as delineated in the bill of particulars, is not so inadequate to justify dismissal."
As the Court held:
"In the present case, defendant is alleged to have committed two sexual criminal acts over a 24-day period against victims who were only five and six years old and resided in the defendant's home. The dates are not material elements of the crimes. It is not disputed that the young victims were unable to provide the precise dates and hours involved. There has been no showing, indication or even accusation of bad faith by the People. Defendant was arrested 12 days after the end of a period set forth and the Grand Jury indicted defendant five months after the acts alleged occurred.
Under the circumstances of this case, the time period in the indictment, as further delineated in the bill of particulars, is not so inadequate as to justify dismissal. Defendant has been informed of the nature of the charges, the conduct underlying them, the place of the crimes, the witnesses present, and the time of the offense, within a reasonably designated period. Defendant has been provided with reasonable and adequate notice under the Federal and State Constitutions and is not prevented from preparing a defense, notwithstanding that it would be easier to prepare an alibi defense if the exact date and time of the offense were known and provided. In addition, the indictment contains such other particularity so as to provide defendant with the means of preventing a subsequent prosecution for the same charge."
Id. at 296-297.
The Court acknowledges that a defendant's task at trial may well prove more daunting when such less than precise dates and times are permitted as responses to the bill of particulars requests; defendant raised the distinct possibility that it might prove more difficult to establish "an alibi" or that he may be prejudiced "if, at trial, a more precise date for each crime is discovered and the trial court does not grant an adjournment to allow the defendant to investigate a possible alibi defense." The Court declined to resolve those issues leaving any future rulings that may be necessary to protect defendant's right at trial to "the sound discretion of the trial judge at the time the issues may arise." ( Id. at 297), See also People v. Sabo, 179 Misc 2d 396, 407 (Sup.Ct., NY Co. 1998) ("The four-month span set forth in this count is sufficient to permit the defendant to prepare a defense to the charge and the People have stated that they have subpoenaed certain records in an effort to narrow the stated period further and will amend the bill of particulars accordingly."); cf. People v. Capitello, 139 Misc 2d 618, 621 (Co. Ct. Suff. Co. 1988) ("The additional information contained in the People's opposing affidavit satisfies this requirement [regarding bills of particulars]. In addition, the People have indicated that they are unable to be more specific in light of the extreme youth of the victims.")
In the instant case, however, it does not appear from the People's oppositions papers that their refusal to provide the factual detail sought by Defendant stems from its unavailability. Here, the People have not even asserted, much less demonstrated, that the rudimentary information of time and place sought by Defendant — facts important, if not vital, to the defense — is presently unattainable. The People simply assert that they need not divulge it. This is an unacceptable response. Without knowledge of the fundamental facts of when the offense allegedly occurred — other than the not less than three month range described as "at about summer of 2002" — Defendant may well be effectively foreclosed from preparing his defense or serving the necessary documents in advance of trial as required under the Criminal Procedure Law (See CPL § 250.20, Notice of Alibi). As discussed above, under these are circumstances the courts generally hold that the People must provide, to the best of their ability, the information sought. (See discussion supra.) Should the People demonstrate that this detailed information sought by Defendant is, for good reason, unavailable at this time, then the Court may need to revisit this issue before trial. See People v. Morris, 61 NY2d 290, 297 (1984). This the People have not, thus far, done. Absent such a showing by the People, the Court sees no principled reason why Defendant's request for the further detail sought should not be honored.
Accordingly, the People are directed to provide to Defendant, within 30 days of the date of this decision, a Bill of Particulars setting forth to the best of the People's ability, the date, time and place of each alleged incident that forms the basis of the charge and whether the People claim that any person other than Defendant or the alleged victim was present at the time of each such incident. If the People are unable to provide any of this information, they must so state and set forth the reason why they are unable to comply with Defendant's demand.
The foregoing constitutes the Decision and Order of this Court.