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THE PERSISTENT ABUSE STATUTE ENCOMPASSES THREE DISTINCT TYPES OF SEXUAL CONTACT; THE INDICTMENT DID NOT IDENTIFY THE SPECIFIC GENRE OF SEXUAL CONTACT WITH WHICH DEFENDANT WAS CHARGED; THE INDICTMENT THEREFORE DID NOT PROVIDE FAIR NOTICE OF THE ACCUSATIONS (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment failed to charge a particular crime:

The indictment was jurisdictionally defective because it “d[id] not effectively charge the defendant with the commission of a particular crime” … . A person is guilty of persistent sexual abuse … when the person commits any of three separately codified offenses — forcible touching … , second-degree sexual abuse … , or third-degree sexual abuse … — and the remaining requirements of § 130.53, which are not at issue in this case, are met. The indictment in this case charged defendant with “PERSISTENT SEXUAL ABUSE, in violation of Penal Law § 130.53.” In its sole factual allegation, it alleged that, in New York County on November 17, 2017, defendant “subjected an individual known to the Grand Jury to sexual contact.”

This abbreviated count failed to specify which of the three discrete qualifying offenses defendant was alleged to have committed. The bare allegation of “sexual contact” did not fulfill this function because sexual contact is an element of all three qualifying offenses. In failing to identify the qualifying offense, this count failed to satisfy the fundamental purposes of an indictment. It did not “provide[] the defendant with fair notice of the accusations made against him so that he [would] be able to prepare a defense” and it did not “provide[] some means of ensuring that the crime for which the defendant [was] brought to trial [was] in fact one for which he was indicted by the Grand Jury” … . People v Hardware, 2021 NY Slip Op 06772, First Dept 12-2-21

 

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