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UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT).

The Third Department determined the waiver of indictment was invalid because it did not include the approximate time of the offense. The court noted that the time allegations required for an indictment do not include the approximate time of the offense, but the approximate time must be included in a waiver of indictment:

Courts have held that “[w]hen time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms. The indictment must, however, set forth a time interval which reasonably serves the function of protecting defendant’s constitutional right to be informed of the nature and cause of the accusation, so as to enable the defendant to prepare a defense and to use the judgment against further prosecution for the same crime” … . Those cases deal with indictments, however, not waivers of indictment. Pursuant to the statute, an indictment must include a statement “that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (CPL 200.50 [6]), whereas CPL 195.20 requires that waivers of indictment include the offense’s “date and approximate time” … . “[I]n the interpretation of a statute[,] we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose[,] and each word must be read and given a distinct and consistent meaning” … . Simply stating that the offense occurred on, or on or about, a specified date or within a range of time (such as a certain week, month or span of months) may meet the statutory requirements for an indictment … , but is insufficient to meet CPL 195.20’s additional “approximate time” requirement for a waiver of indictment … . Any other interpretation would render the statute’s language requiring the “approximate time” superfluous or redundant. People v Busch-Scardino, 2018 NY Slip Op 07979, Third Dept 11-21-18

CRIMINAL LAW (UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))/WAIVER OF INDICTMENT  (UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))/TIME (WAIVER OF INDICTMENT, UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))

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