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In a complaint, the defendant was charged with Assault in the Third Degree

In a complaint, the defendant was charged with Assault in the Third Degree, Forcible Touching, Sexual Abuse in the Second Degree, Endangering the Welfare of a Child, and Harassment in the Second Degree. A Lawyer said that, the complaint states inside 69-27 Costa Avenue in Queens County, New York, the defendant gave alcoholic beverages to his daughter, and touched her vagina repeatedly. During this period, he also grabbed her breasts, squeezed her buttocks and called her into his room where he exposed his penis to her. His daughter was less than fourteen years old at the time of these incidents. Subsequently, the defendant slapped her in the face and back and shoved her against a wall, causing her injuries. She suffers redness and swelling to her face, as well as substantial pain, annoyance and alarm. She was fifteen years old at the time of this last incident.

The defendant moves to dismiss the counts of Forcible Touching, Sexual Abuse, Endangering the Welfare of a Child and Assault as jurisdictionally and facially deficient. The defendant also moves to dismiss the counts of Forcible Touching, Sexual Abuse and Endangering the Welfare of a Child as time-barred by the statute of limitations.

A Lawyer said that, defendant claims that the charges of Forcible Touching, Sexual Abuse and Endangering the Welfare must be dismissed since they were not brought within the two year period of limitation applicable to misdemeanor prosecutions pursuant to Criminal Procedure Law.

The issues in this case are whether the counts of Forcible Touching, Sexual Abuse and Endangering the Welfare of a Child are barred by the statute of limitations; and whether the charges for Forcible Touching, Sexual Abuse, Endangering the Welfare of a Child and Assault are facially deficient.

The Court insofar as deciding the issue on statute of limitations held that, the period of limitation for the prosecution of a sexual offense defined in Article 130 of the Penal Law committed against a child less than eighteen years of age, shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.

Forcible Touching and Sexual Abuse in the Second Degree are both sexual offenses defined in Article 130 of the Penal Law. The Court said that the complaint alleges that the defendant committed these offenses against his daughter on or about and between November 2007 and December 2009, when she was thirteen and fifteen years old, respectively. Hence, the exception under CPL § 30.10(3)(f) applies to the period of limitation for prosecution of these offenses. To be viable, a criminal action for these offenses must be commenced within two years after the complainant turns eighteen or the offenses are reported to law enforcement or the statewide central register of child abuse and maltreatment, whichever comes first.

In their affirmation in opposition to the defendant’s motion, the People assert that the incidents underlying these offenses were not reported to the Administration for Children’s Services (“ACS”) until April 13, 2010. Additionally, the police reports, which the People provided in response to the defendant’s demand for discovery, indicate that the incidents were not reported to the police until that same date. The police reports further indicate that the complainant’s date of birth is June 7, 1994 and that she was fifteen years old at the time the incidents were reported. Accordingly, the two year period of limitation for these offenses did not start until April 13, 2010, when the incidents were reported to the police and ACS. The instant criminal action was commenced a mere two days later on April 15, 2010.
Endangering the Welfare of a Child, even where substantially based, as here, upon a pattern of sexual abuse against a child, is not encompassed within the exception to the statute of limitations. Therefore, a prosecution for Endangering the Welfare of a Child must be commenced within two years after the commission of the crime. In this case, the defendant is charged with Endangering the Welfare of a Child as a continuing offense, predicated upon his engaging in a pattern of sexually and physically abusive behavior toward his daughter over approximately two years, beginning in November 2007 and ending in December 2009. The instant prosecution, commenced four months after the crime concluded, is well within the two year period of limitation for this offense. Accordingly, the Court denied the defendant’s motion to dismiss the charges of Forcible Touching and Sexual Abuse in the Second Degree on the ground that it is time-barred.

In deciding the issue of facial deficiency claimed by the defendant, the Court held that, in order to be facially sufficient, information must substantially conform to the formal requirements of Criminal Procedure Law. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof. Where the factual allegations contained in the information give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.

The Court said that to be facially sufficient, each count of information must charge only one offense. The statutory bar against duplicitous counts applicable to indictments is incorporated by reference into CPL § 100.15, which prescribes the form and content of an information. The bar against duplicitous counts reflects the general policy of the law that aims to apprise a person charged with a crime of the exact nature of the case that the People will attempt to prove against him, to the end that he may make full preparation to meet it. Charging more than one crime in a single count violates this basic common law principle. The prohibition against duplicity not only furthers adequate notice to a defendant and prevents double jeopardy it ensures the reliability of a unanimous verdict.

In this case, the Court said that, the defendant is charged with one count each of Forcible Touching and Sexual Abuse, occurring on or about and between November 1, 2007 and December 31, 2009. Nevertheless, the facts alleged in the complaint describe more than one occurrence of each offense during the designated time period. Although the complaint alleges four occurrences of Sexual Abuse in the Second Degree and two occurrences of Forcible Touching in the factual part, it charges only one count of each offense in the accusatory part. Because the single counts of Sexual Abuse in the Second Degree and Forcible Touching each encompass more than one offense occurring during the designated time period, the counts are duplicitous and must be dismissed.

In contrast, the Court held that the charge of Endangering the Welfare of a Child is facially sufficient. The defendant’s course of conduct toward his teenage daughter over the two year period charged-including repeatedly providing alcohol to her and touching her vagina; grabbing her breasts and squeezing her buttocks; exposing his penis to her; and slapping her on her face and back and shoving her against a wall, causing her to suffer substantial pain, annoyance and alarm-demonstrates that he knowingly acted in a manner likely to be injurious to the physical, mental or moral of a child less than seventeen years old.

Finally, the first-party facts alleged by the complainant that the defendant slapped her on her face and back and shoved her against a wall, causing her to suffer redness and swelling to her face as well as substantial pain, viewed in the light most favorable to the People and accepted as true, provide reasonable cause to believe that the defendant intentionally caused physical injury to her. The subjective allegation that the complainant suffered substantial pain is supported by the objective indication that she sustained redness and swelling to her face, an experience that would normally be expected to bring with it more than a little pain.

Accordingly, the charge of Assault in the Third Degree is facially sufficient.

Hence, the Court dismisses the charges of Forcible Touching and Sexual Abuse in the Second Degree as duplicitous, and upholds the charges of Assault in the Third Degree, Endangering the Welfare of a Child and Harassment in the Second Degree as facially sufficient.

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