Summary
In People v. Ramos (35 Misc.3d 1206A, 2012 N.Y. Misc. LEXIS 150, 2012 WL 1123530 [Sup.Ct., Kings Co.2012], two counts of Endangering the Welfare of a Child were held not to be multiplicitous where they were based on separate and distinct offenses; one count alleged that the complaining witness was endangered by defendant's sexual contact with him on multiple occasions, while the other count alleged that the endangerment arose from defendant's transmission and exchange of digital images of a sexual nature with the complaining witness on multiple occasions over a period of time.
Summary of this case from People v. HernandezOpinion
No. 7890/2011.
2012-04-3
The PEOPLE of the State of New York v. Teresita RAMOS, Defendant.
Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Olatokunbo Olaniyan, for the People of the State of New York. Office of Seymour James, Esq., Legal Aid Society, by Azalia Torres, Esq., for Defendant, Teresita Ramos.
Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Olatokunbo Olaniyan, for the People of the State of New York. Office of Seymour James, Esq., Legal Aid Society, by Azalia Torres, Esq., for Defendant, Teresita Ramos.
MIRIAM CYRULNIK, J.
Defendant stands indicted of Rape in the Third Degree and other charges. The indictment alleges that defendant engaged in various forms of sexual conduct with a male under seventeen years of age, including the transmission and exchange of digital images of a sexual nature.
Defendant moves to inspect the Grand Jury minutes and dismiss the indictment, arguing that the People:
—failed to introduce proffered exculpatory evidence before the Grand Jury;
—improperly cross-examined defendant before the Grand Jury;
—failed to allege offenses against defendant with sufficient specificity;
—included multiplicitous charges in the indictment.
The People oppose, arguing that:
—the evidence proffered by defendant was not exculpatory and, nevertheless, they areunder no obligation to introduce exculpatory evidence before the Grand Jury;
—the cross-examination of defendant was proper;
—the indictment alleges all offenses with sufficient specificity;
—there are no multiplicitous charges in the indictment.
In determining this motion, the court reviewed the Grand Jury minutes, with exhibits, defendant's Affirmation and Memorandum [sic], the People's Affirmation in Reply and the court file. That portion of defendant's motion seeking inspection of the Grand Jury minutes is granted.
Conduct of the Grand Jury Proceedings
Defendant's arguments regarding the proffered exculpatory evidence and her cross-examination by the People are centered upon her Grand Jury testimony in which she stated that, after she ended a consensual sexual relationship with the complaining witness' parents, the complaining witness' father proposed that defendant engage in a sexual relationship exclusively with him. Defendant contends that her refusal of this proposition and the potential for the previous sexual relationship to jeopardize the positions of the parents in a religious organization, in which they hold positions of leadership, induced the parents to compel the complaining witness, their son, to accuse defendant of the offenses charged in the indictment. In her Grand Jury testimony, defendant made reference to a taped conversation between her and the complaining witness' father which, she insists, corroborates her version of events and exculpates her.
The defendant appends to her motion an uncertified Spanish to English translation of the purported transcript of the taped conversation between defendant and the father of the complaining witness. The court notes that this document makes no reference to a consensual sexual relationship between defendant and the parents of the complaining witness.
The People did not enter the taped conversation, about which defendant testified, into evidence before the Grand Jury and the Grand Jury made no request for it. Upon cross-examination, defendant admitted that the sexual relationship she claims existed between her and the parents of the complaining witness is not mentioned on the tape.
In People v. Suarez, 122 A.D.2d 861, 862 (2d Dept 1986), lv denied68 N.Y.2d 817 (1986), the Appellate Division noted:
The People do not have the obligation to present to the Grand Jury every piece of evidence which they possess against a suspect, nor must every matter which may have a tendency to reflect upon the credibility of a witness be revealed. The Grand Jury proceeding is not intended to be adversarial in nature or a mini-trial of the individual suspected of committing a crime. An indictment will not be dismissed provided that the prosecutor did not withhold any information from the Grand Jury which would have materially influenced its investigation (citation omitted).
( see also People v. Colon, 13 NY3d 343 [2009];People v. Lancaster, 69 N.Y.2d 20 [1986];People v. Colucci, 32 AD3d 1044 [2d Dept 2006].)
Exculpatory evidence is such that, if it is believed, will result in a finding of no criminal liability ( see People v. Valles, 62 N.Y.2d 36, 38 [1984] ). In the case at bar, defendant cites this authority for this definition, but fails to establish that the taped conversation about which she testified is exculpatory. Indeed, although defendant repeatedly concludes that the tape is exculpatory, her consistent underlying argument is that it should have been presented to the Grand Jury in order for that body to determine whose version of the facts to believe. It is clear that, in actuality, defendant proffered the tape for purposes of challenging the credibility of the complaining witness.
The court finds that the People were under no obligation to present the proffered audiotape to the Grand Jury. The substance of the audiotape bears upon the credibility of the witnesses and does not provide a complete legal defense or create the potential to “eliminat[e] a needless or unfounded prosecution” (People v. Valles, 62 N.Y.2d 36, 38 [1984],supra; see also People v. Lancaster, 69 N.Y.2d 20 [1986],supra; People v. Colucci, 32 AD3d 1044 [2006],supra; People v. Ramjit, 203 A.D.2d 488 [2d Dept 1994], lv denied84 N.Y.2d 831 [1994];People v. Kaba, 177 A.D.2d 506 [2d Dept 1991], lv denied79 N.Y.2d 859 [1992];People v. Martucci, 153 A.D.2d 866 [2d Dept 1989], lv denied74 N.Y.2d 950 [1989];People v. Monroe, 125 Misc.2d 550 [Sup Ct, Bronx County 1984] ).
The court is not persuaded by defendant's objections to the manner in which she was cross-examined before the Grand Jury. For instance, defendant's reliance upon the doctrine of “impeachment by omission” is misplaced. The People's cross-examination of defendant pertained directly to her testimony before the Grand Jury and her reference to a tape which, she claimed, supported her version of events. Defendant was not asked about prior inconsistent references or prior omissions regarding the taped conversation. She was challenged as to whether her assertions about the tape before the Grand Jury were accurate.
“A witness may not be impeached simply by showing that he omitted to state a fact, or to state it more fully at a prior time. It need also be shown that at the prior time the witness' attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial (citations omitted).” People v. Bornholdt, 33 N.Y.2d 77, 88–89 (1973), cert denied sub nom. Victory v. New York, 416 U.S. 905 (1974).
The “rule of completeness” is likewise inapplicable to the case at bar. Contrary to defendant's arguments, the minutes of the Grand Jury proceeding do not indicate that the Grand Jury was misled about the tenor of the tape to which defendant referred.
“Where only part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement (citations omitted).” People v. Torre, 42 N.Y.2d 1036, 1037 (1977).
Defendant's third objection, citing the “unsworn witness rule,” is equally unavailing. As explained in People v. Paperno, 54 N.Y.2d 294, 300–301 (1981), the rationale for the “unsworn witness rule” is “rooted in a concern that the criminal process be fair.” When a prosecutor expresses personal beliefs, that action is considered “a subtle form of testimony against the defendant” which may be accorded undue weight because “of the prestige of the office of the District Attorney” ( id.) In the case at bar, defendant proffered an audiotape for the purpose of corroborating, among other things, her claim that a previous sexual relationship existed between her and the parents of the complaining witness. The uncertified translation of the purported transcript of that tape, attached to defendant's motion, provides no such corroboration. The People were within their rights to confront defendant about her claims regarding the content of the proffered tape and the Assistant District Attorney did not, through her questioning, make herself a witness.
“[T]he prosecutor may not inject his own credibility into the trial.” People v. Paperno, 54 N.Y.2d 294, 300 (1981). Accordingly, a prosecutor may not “[express] his personal belief on matters which may influence the jury (citation omitted), [argue] his own credibility on summation (citation omitted), [or] [vouch] for the credibility of the People's witnesses (citation omitted)” ( id .) The court observes that this rule is usually invoked in the context of a motion to recuse the prosecutor ( id. at 301).
Specificity of the Allegations
In People v. Morris, 61 N.Y.2d 290 (1984), the Court of Appeals addressed the factors that go into determining the sufficiency of the details of when an offense charged in an indictment took place. The court recognized that CPL § 200.50(6) does not require an indictment to specify the exact date and time, but allows it to be alleged that the offense took place “on, or on or about a designated date, or during a designated period of time.” However, the court also noted that, although the language of the statute imposes no limits upon the length of time that may be designated, the People are constrained by a defendant's Sixth Amendment protection against double jeopardy. The court concluded that reasonableness is the standard for a criminal pleading and that the time of the offense may be stated in approximate terms provided it is not an essential element of the offense ( id. at 295).
Where, as here, defendant makes no claim that “the People knew, but purposely failed to allege the most particular date and time possible” ( id. at 296), the Court of Appeals set forth a two pronged test for the reasonableness and fairness of the time notice contained in the indictment. First, the court must determine whether or not the People conducted a reasonably thorough investigation to ascertain the information needed to provide their best knowledge of the dates and times of the alleged offenses. In making this determination, the court may consider: the age and intelligence of the victim and other witnesses; the surrounding circumstances; and the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately ( id. at 296).
If it is determined that the People's investigation was diligent, the court should then examine the indictment to determine if the time notice is reasonable and:
[i]n making this determination, factors to consider might include, but should not be limited to the length of the alleged period of time in relation to the number of criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of indictment and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.
( id. at 296).
In the case at bar, with the exception of four offenses which are alleged to have taken place on two specific dates, the indictment alleges that the offenses charged took place during two periods of time: November 30, 2009 to December 31, 2009 and January 1, 2010 to January 15, 2010. Defendant was arrested on August 10, 2011, approximately eighteen months after the periods of the alleged offenses. The indictment was filed on September 30, 2011 and defendant was arraigned on the felony charges on November 2, 2011.
According to the People, the complaining witness, who was fifteen years old at the time of the alleged offenses, was extensively interviewed, by members of the Victims Services Unit of the NYPD, and the Special Victims Bureau of the Kings County District Attorney's Office, on multiple occasions. In addition, the complaining witness' parents were interviewed and the computers and cellular telephones of defendant and the complaining witness were examined. As defendant concedes, the information provided in the Criminal Court Complaint was updated and provided to defendant in advance of the Grand Jury proceeding. Taking into consideration the factors suggested by the Court of Appeals in Morris, the court finds that the People conducted a diligent and reasonably thorough investigation.
Moving to the second prong of the analysis, the court finds that the periods of time set forth in the indictment are reasonable. The dates and times are not material elements of the offenses. The periods of time alleged in the indictment span the last thirty days of 2009 and the first fifteen days of 2010 (a total of 45 days). The complaining witness was fifteen years old at the time of the alleged offenses. The outcry did not take place until nearly eighteen months later. The offenses are alleged to have taken place at multiple locations, including defendant's home and the home of the complaining witness.
In People v. Keindl, 68 N.Y.2d 410 (1986), the court found that periods of ten, twelve and sixteen months alleged in the indictment were excessive on their face and noted that the child victims involved, who were between eight and thirteen years old, should have been able to use markers such as school holidays, seasons and birthdays to narrow them. In the case at bar, the period of time for the offenses alleged in the indictment is approximately 45 days. This is considerably less than the periods of time rejected in Keindl, which relied heavily upon the reasoning of People v. Morris, 61 N.Y.2d 290 (1984), supra, and set no per se rule regarding reasonableness.
Although the complaining witness at bar was a teenager at the time of the alleged offenses, a 45 day period is sufficiently reasonable to afford defendant the opportunity to prepare a defense and avoid double jeopardy ( see e.g. People v. Coapman, 90 AD3d 1681 (3d Dept 2011); People v. Case, 29 AD3d 706 [2d Dept 2006], lv denied7 NY3d 786 [2006];People v. Weber, 25 AD3d 919 [3d Dept 2006], lv denied6 NY3d 839 [2006];People v. Oglesby, 12 AD3d 857 [3d Dept 2004], lv denied5 NY3d 792 [2005];People v. Williams, 280 A.D.2d 563 [2d Dept 2001], lv denied96 N.Y.2d 836 [2001] ).
It should be noted that a defendant is entitled to request a bill of particulars, which may serve to amplify and further delineate the circumstances of the case ( see generallyCPL § 200.95; People v. Morris, 61 N.Y.2d 290 [1984],supra; People v. Kindlon, 217 A.D.2d 793 [3d Dept 1995], lv denied86 N.Y.2d 844 [1995] ).
Multiplicitous charges
The court finds that there is no merit to defendant's contention that Endangering the Welfare of a Child, as alleged in the instant indictment, is multiplicitous. An indictment is multiplicitous when a single offense is charged in more than one count ( see People v. Alonzo, 16 NY3d 267, 269 [2011];see also People v. Senisi, 196 A.D.2d 376 [2d Dept.1994], lv denied84 N.Y.2d 828 [1994] ).
Defendant asserts that Endangering the Welfare of a Child is a continuous offense in reliance upon People v. Moffit, 20 AD3d 687 (3d Dept 2005), lv denied5 NY3d 854 (2005) and People v. Quinones, 8 AD3d 589 (2d Dept 2004), lv denied3 NY3d 710 (2004), both of which are distinguishable from the case at bar. In those cases, the defendants were charged with multiple counts of the same offense, where the facts and circumstances demonstrated that single continuous offenses took place. The elements of the offenses were such that they did not give rise to separate indictable offenses.
In the case at bar, the People charged defendant with two counts of Endangering the Welfare of a Child for two separate and distinct offenses. One count alleges that the complaining witness was endangered by defendant's sexual contact with him on multiple occasions over a period of time. The other count alleges that the endangerment arose from defendant's transmission and exchange of digital images of a sexual nature with the complaining witness on multiple occasions over a period of time. Each count of Endangering the Welfare of a Child requires proof of at least one fact that the other does not. That there is some overlap in these periods of time does not make the counts multiplicitous (People v. Kindlon, 217 A.D.2d 793 [1995],supra ).
Conclusion
Finally, then, upon an examination of the minutes of the Grand Jury proceedings, the court finds that the evidence before the Grand Jury was legally sufficient to establish the offenses charged and that the defendant committed said offenses ( seeCPL §§ 190.65, 210.20, 210.30; People v. Pelchat, 62 N.Y.2d 97 [1984];People v.. Calbud, Inc., 49 N.Y.2d 389 [1980];People v. Swamp, 84 N.Y.2d 725 [1995] ). Additionally, the court finds that the instructions on the law given to the Grand Jury were adequate and legally sufficient. ( see People v. Calbud, Inc., 49 N.Y.2d 389 [1980],supra ). Further, no procedural flaws or errors support dismissal or reduction of the counts or of the indictment.Defendant's motion to dismiss or reduce is therefore denied.
This constitutes the Decision and Order of the Court.