76 A.D.2d 157 | N.Y. App. Div. | 1980
OPINION OF THE COURT
Defendant, who was convicted of two counts of rape in the first degree (Penal Law, § 130.35, subd 3) and one count of endangering the welfare of a child (Penal Law, § 260.10, subd 1), primarily contends that the two rape counts of the indictment were defective and should have been dismissed. We agree.
Count one of the indictment, which alleged that at unknown times between May, 1976 through December, 1977, defendant engaged in sexual intercourse with Stephanie Lynn, a female who was less than 11 years old, was patently defective. CPL 200.50 (subds 6, 7, par [a]) provides that an indictment "must” contain "[a] statement in each count that the offense charged therein was committed on, or on or about, a
Defendant, however, moved in the alternative for dismissal of count one or for a bill of particulars specifying the date on which the alleged offense took place. Although "[a] bill of particulars cannot, of course, serve to amend an indictment, nor can it ever cure a defective pleading” (Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 200.90, p 292),
Count two of the indictment alleged that on or about June of 1977, at a time unknown, defendant engaged in sexual intercourse with Tammie Jean, a female who was less than 11 years old. Although count two standing alone, arguably complied with CPL 200.50, it was defective upon the ground of duplicity as discussed above. In their answering affidavit, the People alleged, with respect to count two, that defendant raped Tammie in June of 1977 in a "cornfield near his residence”, and on "two other occasions in 1977”.
The trial court’s conclusion that the answering affidavit was sufficient with respect to the allegations of sexual intercourse was, therefore, erroneous and cannot be upheld. Accordingly, the conviction of the two counts of rape must be reversed and counts one and two of the indictment dismissed, with leave to the People to resubmit the rape charges to another Grand Jury.
Finally, the conviction for endangering the welfare of a child under the eighth count of the indictment must be reversed and a new trial ordered thereon. Although this count of the indictment complied with the requirements of CPL article 200, and the proof was adequate to support the conviction thereon, the cumulative effect of numerous errors committed in the course of the trial, require reversal. Specifically, evidence that the defendant engaged in sexual activities with persons other than the victims alleged in the indictment was improperly admitted (see People v Johnson, 37 AD2d 218, 219-220, amd 37 AD2d 881, affd 30 NY2d 776); the improper
The judgment should be reversed, on the law, counts one and two of the indictment dismissed, with leave to the People to resubmit the rape charges to another Grand Jury, and a new trial ordered on count eight of the indictment.
Kane, Staley, Jr., Mikoll and Casey, JJ., concur.
Judgment reversed, on the law, counts one and two of the indictment dismissed, with leave to the People to resubmit the rape charges to another Grand Jury, and a new trial ordered on count eight of the indictment.
. Although a bill of particulars may, of course, be used to buttress an indictment that charges all of the elements of a crime, but in general terms tracking the language of the statute, the indictment still must allege where, when and what the defendant did in order to fulfill its basic, essential function of notifying the defendant of the crime of which he stands indicted (People v Iannone, 45 NY2d 589, 597-598).
. CPL 200.90 sets forth the procedures and requirements on a motion for a bill of particulars. The sole function of a bill of particulars is to clarify and define more specifically the crimes charged in an indictment (People v Davis, 41 NY2d 678, 679-680); as noted, it cannot serve to amend an indictment, or cure a defective pleading.