People v. Watt

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 NY2d 639, 641, 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 NY2d 410, 419]; People v Morris, 61 NY2d 290, 295). 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, at 419; People v Morris, supra, at 295). 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 AD2d 743; People v Corrado, 161 AD2d 658).

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 NY2d 290, 293-294), 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 AD2d 658, supra), this court held that a period of five months was excessive. Our reference in People v Corrado (supra, at 659), 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), 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 85-001096, 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” (People v Morris, 61 NY2d 290, 293).

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 NY2d 937, 940). None of this, however, applies to the children who were never interviewed by Ms. Treácy.

We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Harwood and Lawrence, JJ., concur.