People v. Benjamin R.

103 A.D.2d 663, 481 N.Y.S.2d 827, 1984 N.Y. App. Div. LEXIS 20195
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 7, 1984
StatusPublished
Cited by60 cases

This text of 103 A.D.2d 663 (People v. Benjamin R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Benjamin R., 103 A.D.2d 663, 481 N.Y.S.2d 827, 1984 N.Y. App. Div. LEXIS 20195 (N.Y. Ct. App. 1984).

Opinion

OPINION OF THE COURT

Green, J.

Defendant appeals from a judgment of conviction entered upon a jury verdict which found him guilty of one count of sodomy in the first degree, one count of sodomy in the third degree, two counts of sexual abuse in the first degree, two counts of sexual abuse in the third degree and one count of endangering the welfare of a child. The victim of the crimes was defendant’s 14-year-old stepdaughter.

According to the victim, her mother went to Tulsa, Oklahoma, for a Bible conference at the end of August, 1982 leaving her home with the defendant and her three stepsisters. She testified that on three occasions during this period defendant took her from her bed, put her on the floor on her stomach, took off his pants, placed his penis on her back and moved around. On three other occasions also during this period, defendant removed her nightclothes and touched her breasts and on one occasion defendant forced her to place her mouth on his penis. The victim testified that after her mother returned home, defendant on two or three occasions again engaged in similar sexual conduct. She stated that she resisted defendant “all the time” and that defendant would often slap and punch her [665]*665and twist her arm or pull her hair. She also testified that defendant had punished her physically in the past and that she had seen the defendant hit her mother.

The victim stated she did not tell her mother about these incidents because she feared that her mother would suffer physically and mentally, as she had before. During a visit to her aunt in October, 1982, however, she did reveal what had occurred. In November, 1982, during a discussion at which the victim, her mother, defendant and some friends of the family were present, Mrs. R asked her if the things she had told her aunt were true and she replied that they were. Shortly thereafter, she was removed from the home by the Social Services Department.

The victim’s mother testified that she was away at the Bible conference from approximately July 25 until August 3, 1982. She corroborated her daughter’s testimony concerning the discussion in their home in November. Mrs. R. also stated that during a conversation with defendant while he was in jail on a prior unrelated charge, defendant said “he didn’t do it three times.” When asked by the prosecutor “did he ever tell you that it was a matter of the flesh with regard to [the victim],” she replied, “Yes.” The trial court denied defendant’s motion for a mistrial but promptly instructed the jury to strike the question and answer from their minds.

The prosecutor offered into evidence a letter written by the defendant to his stepdaughter while defendant was in jail. The prosecutor contended that it was written to intimidate her and discourage her from testifying. The trial court initially denied admission of the letter but later admitted it after a proper chain of custody was established. The letter was then read to the jury. Essentially, defendant wrote that he would plead guilty if promised a sentence of no more than one year in jail. Defendant also stated that he wanted to save his stepdaughter the embarrassment of testifying at trial and that if forced to testify, she could remain silent.

Defendant’s first contention on this appeal is that the indictment was defective because it failed to specify the dates of the alleged crimes. Five of the seven counts of the indictment for which defendant was convicted (one count of [666]*666sodomy in the first degree and two counts each of sodomy in the third degree and sexual abuse in the third degree) dealt with acts that allegedly occurred within a two-week period; one count (sexual abuse in the third degree) dealt with an act that occurred during a one-month period and the remaining count (endangering the welfare of a child) with acts that occurred during a five-month period. In response to defendant’s demand for the exact dates on which these acts occurred, the People replied that those dates were unknown. Defendant submits these circumstances warrant reversal and dismissal of the indictment (see CPL 200.50, subd 6; People v Faux, 99 AD2d 654). We disagree.

Subsequent to this court’s decision in People v Faux (supra) the Court of Appeals held that “[a]n indictment will not be dismissed as defective under CPL 200.50 with respect to the time period alleged for the commission of a crime, if it or, in some instances, the bill of particulars provides a reasonable approximation, under the circumstances of the individual case, of the date or dates involved” (People v Morris, 61 NY2d 290, 292). In Morris, defendant was indicted for rape and sodomy “during the month of November 1980.” The People responded to defendant’s demand for a bill of particulars only by narrowing the times to “on or about and between Friday, November 7, 1980 and Saturday, November 30, 1980.” The court found no statutory impediment to the indictment because it contained a “designated period of time” in which the crimes allegedly occurred and because the statute does not require that the exact date and time be stated (CPL 200.50, subd 6). The court found no constitutional impediment to the indictment because it was “reasonably precise under the circumstances, notwithstanding that the crimes were alleged to have been committed within a 24-day period” (People v Morris, supra, p 292). We think the same reasoning applies here.

In the present case, as in People v Morris (supra) the victim alleged that several sex crimes occurred over a designated period in the home where both the victim and the defendant resided. Here, as there, the dates are not substantive elements of the crime (see United States v [667]*667Antonelli, 439 F2d 1068) and there has been no allegation or showing of bad faith by the People in failing to particularize the dates of the alleged crimes. Defendant was not inhibited in preparing an alibi defense because he was residing in the family home until November, 1982, a month after the sodomy and sexual abuse allegedly occurred. Moreover, it is important to note that the core of the defense at trial was not that the alleged crimes never occurred, but only that there was no forcible compulsion. Under these circumstances, we conclude that the indictment was reasonably precise.

Defendant’s reliance upon People v Faux (99 AD2d 654, supra) is misplaced. We did not intend there to establish a blanket rule that an indictment must be dismissed where, as in the instant case, the People failed to supply a bill of particulars. While a bill of particulars may be of assistance “in some instances” (People v Morris, 61 NY2d 290, 292, supra), an indictment may be reasonably precise notwithstanding the absence of a bill of particulars so long as the indictment sets forth a reasonable and designated period of time (see CPL 200.50, subd 6) which we find to be the case here. We also note that a significant reason for reversing defendant’s conviction in People v Faux (supra) was the confusing and erroneous manner in which the trial court charged representative counts to the jury, a claim not raised by defendant in the instant case.

Defendant’s second contention is that the indictment was defective because it charged him with more than one offense per count (CPL 200.30, subd 1). This claim was neither specifically raised by the defendant nor ruled upon by the lower court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Tetro
2019 NY Slip Op 6886 (Appellate Division of the Supreme Court of New York, 2019)
People v. Stroman
286 A.D.2d 974 (Appellate Division of the Supreme Court of New York, 2001)
People v. Seaman
239 A.D.2d 681 (Appellate Division of the Supreme Court of New York, 1997)
Grady v. Artuz
931 F. Supp. 1048 (S.D. New York, 1996)
State v. Ali
660 A.2d 337 (Supreme Court of Connecticut, 1995)
People v. Clyburn
212 A.D.2d 1030 (Appellate Division of the Supreme Court of New York, 1995)
People v. Singh
186 A.D.2d 285 (Appellate Division of the Supreme Court of New York, 1992)
People v. Watt
179 A.D.2d 697 (Appellate Division of the Supreme Court of New York, 1992)
People v. Schneider
178 A.D.2d 934 (Appellate Division of the Supreme Court of New York, 1991)
State v. J.Q.
599 A.2d 172 (New Jersey Superior Court App Division, 1991)
Commonwealth v. Garcia
588 A.2d 951 (Superior Court of Pennsylvania, 1991)
People v. Cranmer
167 A.D.2d 566 (Appellate Division of the Supreme Court of New York, 1990)
People v. Khatib
166 A.D.2d 668 (Appellate Division of the Supreme Court of New York, 1990)
Allstate Insurance Co. v. Mugavero
166 A.D.2d 474 (Appellate Division of the Supreme Court of New York, 1990)
People v. Nelson
561 N.E.2d 439 (Appellate Court of Illinois, 1990)
Goodson v. State
566 So. 2d 1142 (Mississippi Supreme Court, 1990)
People v. Ivory
162 A.D.2d 551 (Appellate Division of the Supreme Court of New York, 1990)
Kimbro v. State
1990 OK CR 4 (Court of Criminal Appeals of Oklahoma, 1990)
Commonwealth v. Smith
567 A.2d 1080 (Supreme Court of Pennsylvania, 1989)
People v. Roberts
156 A.D.2d 968 (Appellate Division of the Supreme Court of New York, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
103 A.D.2d 663, 481 N.Y.S.2d 827, 1984 N.Y. App. Div. LEXIS 20195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-benjamin-r-nyappdiv-1984.