Proof at Trial Did Not Sufficiently Pinpoint Time of the Alleged Sexual Offenses—Convictions Vacated

The Second Department determined the proof at trial did not sufficiently pinpoint the time of the alleged sexual offenses.  The offenses were alleged at trial to have been committed within a four-year time period for one victim and within a one-year time period for another.  The related convictions were vacated:

Here, numerous counts of the consolidated indictment charged various acts of criminal sexual act (see Penal Law § 130.45[1]) and sexual abuse (see Penal Law §§ 130.55, 130.60), which involved several single acts. These acts spanned a time period of at least four years with respect to Gabrielle, and approximately one year with respect to Angela. In an effort to specify a time period that was not unreasonably excessive, the District Attorney drafted the indictment to divide these time periods mostly into two-month intervals. Although the indictment, on its face, may have been sufficient, the trial testimony revealed that the complainants lacked any ability “to particularize the date and time of the alleged . . . offense[s]” …, and that there was no real basis in fact for the intervals alleged with respect to these counts … . Thus, “[t]he mere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing” those otherwise excessive time periods into two-month intervals despite the absence of any basis in fact, “cannot detract from the conclusion that the time periods” with respect to these single-act crimes “were unreasonable” under the circumstances here … . Under the circumstances of this case, despite the defendant’s failure to preserve the issue for appellate review, we reach the issue in the interest of justice, and we vacate the defendant’s convictions of criminal sexual act in the second degree, sexual abuse in the second degree, and sexual abuse in the third degree … . People v Atta, 2015 NY Slip Op 01809, 2nd Dept 3-4-15