Defendant, who is alleged to have touched the then 16 year old's Complainant's breasts and buttocks, is charged with four counts of Sexual Abuse in the Third Degree (PL § 130.55) and one count of Endangering the Welfare of a Child (PL § 260.10(1)).

The issue is whether the time periods stated in the Complaint, as amplified in the People's Bill of Particulars, provide Defendant with reasonable and adequate notice under the Federal and State Constitutions.

Defendant moves to dismiss the instant accusatory instrument for lack of specificity pursuant to CPL §§ 100.40 and 100.45 and for violation of Defendant's constitutional rights under the Sixth Amendment of the United States Constitution and the New York Constitution Article 1, § 6, arguing, in essence, that the dates and occurrences of the charged offenses are overly broad. The People counter that the accusatory instrument provides Defendant with sufficient specificity as to the time and place of occurrence of the charged crimes. (People's Memo 11). The People further argue that the accusatory instrument charges that two of the offenses occurred in two distinct one month time periods, and the other two offenses occurred in two distinct two month periods, and these time periods are sufficiently narrow to allow Defendant to prepare a defense. (Id.)

The Superseding Information, signed by Assistant District Attorney Connie Solimeo on October 29, 2008, states, in relevant part: [*2]

The Deponent is informed by H.B.^[FN1] that during the first above-listed time period and at the first above-listed place [between August 1, 2007, and August 31, 2007 at 500 Saint Johns Place, County of Kings], the Defendant touched the Defendant's hand to the Informant's breasts and buttocks.

On these facts, the Defendant is charged with two counts of Sexual Abuse in the Third Degree.

The Complaint further states:

Deponent is further informed by the Informant during each and every one of the subsequently above-listed time periods [(2) between January 1, 2008 and January 31, 2008; (3) between February 1, 2008 and March 31, 2008; (4) between April 1, 2008 and May 30, 2008; (5) between August 1, 2007 and May 30, 2008] and at the above-listed places [263 Eastern Parkway, County of Kings] the Defendant did touch the Defendant's hand to the Informant's breasts.

On these facts, the Defendant is charged with four counts of Sexual Abuse in the Third Degree and one count of Endangering the Welfare of a Child.

The Complaint further indicates that Informant's date of birth is August 5, 1991.

On March 24, 2009, the People served and filed a response to Defendant's request for a Bill of Particulars, stating that the People have interviewed the Complainant, and although she is unable to provide more specificity about the dates of the offenses charged in the accusatory instrument, she is able to provide information about other events which could establish a frame of reference to assist in narrowing the time spans alleged, and that the dates are not material elements of the crimes charged. (People's Affirmation in Response to a Request for a Bill of Particulars 3).

A defendant is entitled to "fair notice of the nature of the charges against him, and of the

manner, time and place of the conduct underlying the accusations, so as to enable him to answer the charges and prepare an adequate defense." People v. Keindl, 68 NY2d 410, 502 NE2d 577, 509 NYS2d 790; People v. Morris, 61 NY2d 290, 461 NE2d 1256, 473 NYS2d 769 (1984). A Criminal Court instrument must be sufficiently specific to enable a Defendant to prepare a defense and to protect the Defendant from being tried twice for the same offense. See People v. Casey, 95 NY2d 354, 717 NYS2d 88, 740 NE2d 233 (2000); People v. Keindl, supra ; People v. Morris, supra .

If time is not an element of a crime, the Criminal Procedure Law neither mandates that a single date be pleaded in an indictment nor does it impose a restriction on the length of the designated time period. See CPL § 200.50(6); People v. Morris, 61 NY2d at 290. Nevertheless, "the interval of time set forth in each count must reasonably serve ... the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation." People v. Morris, supra . This is particularly the case where Defendant is charged with a crime [*3]perpetrated by a single act, such as Sexual Abuse or Harassment. See People v. Gelin, 2002 NY Slip Op. 50512 (U) (Crim.Ct., Kings Co.) (Dismissing complaint as facially insufficient based on allegations that defendant had fondled complainant, a 14- and 15-year old girl, over 15 month period.)

Defendant argues that the People have failed to provide sufficient notice by narrowing the time frame so that Defendant can adequately prepare and conduct a defense. (Defendant's Memo 6). It is Defendant's position that the People are able to obtain the specific dates and times that these alleged incidents occurred but have failed to obtain that information due to a lack of diligent investigatory efforts. (Defendant's Memo 9). Thus, Defendant argues, citing People v. Sedlock, 8 NY3d 535, 869 NE2d 14, 838 NYS2d 14 (2007) and People v. Bennett, 57 AD3d 688, 868 NYS2d 314 (2d Dept. 2008), the time frame alleged is unreasonably excessive.

In Morris, the Court of Appeals held: "[r]easonableness and fairness demand that [the accusatory instrument] state the date and time of the offense to the best of the People's knowledge, after a reasonably thorough investigation has been undertaken to ascertain such information." 61 NY2d at 296. If it is found that the People have exerted diligent investigatory efforts, the accusatory instrument should be examined to determine whether under the circumstances, the designated period of time is reasonable. Id. Factors to be considered might include the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; and the ability of the complaining witness to particularize the date and time of the alleged transaction or offense. Id. The Court of Appeals held the indictment in Morris reasonably precise, notwithstanding that the crimes were alleged to have been committed within a 24 day period, where the victims were five and six years old and resided in the defendant's home. 61 NY2d at 297.

In People v. Keindl, supra , the Court of Appeals dismissed various counts of an indictment charging defendant with sodomy and sexual abuse committed against his three stepchildren during periods of 10, 12 and 16 months. In doing so, the Court pointed to its decision in Morris, where "we made it clear that the interval ascribed for a particular crime [may be] so excessive that, on its face, it is unreasonable and dismissal should follow." 68 NY2d at 419.

In People v. Sedlock, supra , the Court of Appeals dismissed a Criminal Court Information alleging that Defendant had committed Forcible Touching on one occasion within a seven month period. In determining whether the time frame was excessive, the Court applied a balancing test, considering factors such as the People's good faith in seeking more specific information; the age and intelligence of the victim; and the surrounding circumstances. 8 NY3d at 539. The Court determined that because the People had occasion to learn the date of the alleged crime with greater specificity, their failure to narrow the broad time frame by amendment to the Complaint or Bill of Particulars prejudiced the defendant's ability to prepare an effective defense. Supra.

In Bennett, supra , the Second Department held that defendant was entitled to dismissal of an indictment charging rape, sodomy, and sexual abuse where the indictment alleged crimes occurred between June and December of 2001, and the Bill of Particulars asserted that the crimes had occurred on two occasions, once while it was warm out and while victim's mother was at a [*4]grocery store, and the other approximately two weeks later, but the People did not narrow down the indictment's seven month time frame, or demonstrate that they were unable to do so.

B. The Information Herein

Defendant contends that here, applying Morris, the Court should find that a specific date could have been obtained through the People's diligent efforts, and that the time frame alleged is unreasonable based on the Complainant's age and intelligence. In support of this position, Defendant cites People v. Aaron, 48 AD3d 1200, 1201, 850 NYS2d 790 (4th Dept. 2008) and People v. Keindl, supra , arguing that the since the Complainant in this case was 16 years old at the time the alleged incidents occurred, and is now a 17 year old high school student, she is more capable than the "children" in those cases of providing the People with specific dates and times that these alleged incidents occurred. (Defendant's Memo 8).

The People assert that the time periods charged were to the best of the People's knowledge given all the factors cited above, and that they have met the burden of due diligence required under Morris. (People's Memo 13). Defendant argues, citing Sedlock, supra , that information regarding the exact date, time and place of each alleged offense is readily available to the People through the Complainant, and there is no justification for continued non-disclosure. (Defendant's Memo 6). However, the People contend that they have interviewed the Complainant several times, and the Complainant was unable to provide the People with additional specificity regarding the dates and times when the offense occurred. (People's Memo 10). The People maintain that after one of these interviews, the Complainant indicated that the first offense charged in the accusatory instrument occurred on an afternoon after her family had taken her to church, and the second, third, and fourth offenses occurred after the Complainant attended choir practice and the Defendant drove her home. The People included this information in the Bill of Particulars, providing the defendant with information about other events which could establish a frame of reference to assist in narrowing the time spans alleged. (People's Memo 10-11).

As Defendant concedes, the determination of whether the accusatory instrument and the Bill of Particulars provide the defendant with sufficient specificity to adequately prepare a defense must be made on an ad hoc basis, considering all relevant circumstances. Sedlock, supra ; Morris, supra . (Defendant's Memo 7-8). The reviewing court must first examine whether the People's failure to allege a more specific time frame is the result of an intentional non-disclosure or whether the People have exercised good faith diligent investigatory efforts. People v. Watt, 192 AD2d 65, 600 NYS2d 714 (2nd Dept.1993).

The People assert that they have, in good faith, conducted a reasonably thorough investigation to ascertain the dates and times of the charged occurrences, interviewing the Complainant on several occasions and providing a Bill of Particulars narrowing the time frames as much as possible. (People's Memo 13). This Court finds no reason to question the good faith of the People's representation that they are unable to provide more specific time frames, or their efforts to do so.

Here, Defendant is alleged to have committed four sexual criminal acts at some point during two distinct month long periods, and two distinct two month long periods, against a victim who was then 16 years old. The time frame alleged does not approach the time frames held unreasonably excessive in the cases cited by Defendant. Both Sedlock and Bennett involved [*5]seven month time periods, approaching the time period held per se unreasonable in People v. Beauchamp, 74 NY2d 639, 541 NYS2d 977, 539 NE2d 1105, and thus subject to "proportionally heightened scrutiny." Sedlock, 8 NY3d at 539; Bennett, 57 AD3d at 690. Defendant's reliance upon Keindl, supra and Aaron, supra , is similarly misplaced. The charges dismissed in Keindl involved time frames of 10, 12, and 16 months. And, although Aaron, affirmed dismissal of counts charging sexual abuse in the third degree because the 12 month period set forth in the count was unreasonable, the court determined that the four and a half month time period set forth in the count charging rape was not excessive, in view of the nature of the offense and age of the victim, 13 or 14 years old.

As the cases cited by the People demonstrate, courts have repeatedly affirmed decisions in which similar time periods were held to be reasonably specific. People v. Case, 29 AD3d 706, 814 NYS2d 272 (2nd Dept. 2006); People v. Anderson, 173 AD2d 478, 479 (2nd Dept. 1991); People v. Williams, 280 AD2d 563, 721 NYS2d 366 (2nd Dept. 2001); People v. Oglesby, 12 AD3d 857, 859, 787 NYS2d 401 (3rd Dept. 2007).

Accordingly, we hold that under the circumstances of this case, the time periods in the Superseding Information are sufficiently narrow. Morris, supra ; see also People v. Weber, 25 AD3d 919. 807 NYS2d 222 (3d Dept. 2006) (indictment charging sexual abuse in the first degree "on or about the summer of 1996" sufficient); People v. Case, 29 AD3d 706, 814 NYS2d 272 (2nd Dept. 2006) (where defendant repeatedly raped and sexually abused his biological daughter over five years, indictment charging crime taking place within two month period provided defendant with adequate notice). 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. Morris, 61 NY2d at 297. Defendant has been provided with reasonable and adequate notice under the Federal and State Constitutions and is not prevented from preparing a defense, and the Superseding Information provides sufficient particularity to prevent a subsequent prosecution for the same offense. Id.

Defense counsel's argument that the People could obtain, by a more diligent investigation, the specific dates and times of choir practice, church attendance, and any medical appointments by Complainant's parents, as well as the reasons why Complainant was at Defendant's residence and why Defendant took Complainant home (Defendant's Memorandum 10) lacks any legal precedent, and requests information far beyond the specificity required in a Complaint or Bill of Particulars. To require such details as medical appointments of the complaining witness's family, as requested by defense counsel, would be to transpose the requirement that defendant receive adequate notice of the charge against him into an opportunity for pre-trial discovery more akin to that afforded in a civil case. Neither constitutional or statutory law requires such a transformation, and this Court rejects Defendant's invitation to do so.

Moreover, the Court notes that information as to the usual days for church and choir practice are not matters as to which the People have superior knowledge. The now 17 year old Complainant does not appear to be a church official. Therefore, the defense, by proper investigation, should be able to obtain information as to dates and times of church services and choir practice with the same ease or difficulty as would the People.

Brooklyn, New York

______________________________

MICHAEL GERSTEIN, J.C.C.