The defendant, a Boy Scout master, was accused of forcibly touching one of his 17 year-old scouts once during a time period "from December 2002 through June 2003." (Sedlock, 2007 NY Slip Op 04683.) Defense counsel requested a bill of particulars to narrow that time frame down a bit; the People responded by reiterating that one act of forcible touching occurred "between December of 2002 and June 2003." (Id. at __.) The trial court denied defense counsel's motion to dismiss the accusatory instrument on the grounds that it "did not properly give him notice of the charge so that he could adequately prepare a defense." (Id. at __.) The Court of Appeals reversed in a unanimous decision by Judge Ciparick. From the decision:
[W]e conclude that the People failed to meet their duty to delineate a sufficiently narrow time frame for the alleged act. Notably, the complainant here was 16 or 17 years old at the time of the forcible touching, and, by all accounts, intelligent. Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so. Under these circumstances, seven months cannot be deemed reasonable when weighed against the imperative notice rights of the defendant. The People had ample opportunity to correct this deficiency in their response to the bill of particulars but failed to do so, and thus defendant's motion to dismiss the information should have been granted.
(Id. at __.)
This is the right call. Prosecutors are sometimes allowed to allege criminal conduct occurred over broad swaths of time when, by reason of the age of the victim or the passage of time or both, the exact date of the crime cannot be pinned down with any precision. But this should be the exception, used sparingly and only when absolutely necessary. An intelligent 17-year-old is able to give specific information that a 4 year old cannot, and it should be incumbent on the prosecutor to thoroughly investigate a 17-year-old's allegations and nail the date of the crime down with some specificity before prosecuting the case.
