Tuesday, May 25, 2010

A Particularized Review of Bill of Particulars

To understand the need for a bill of particulars it helps to first review the history of indictments in New York:

In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."

The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."

The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)

Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)

The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."

Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."

Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.

The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.

Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."

PRACTICE TIPS

The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."

Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).

When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.

So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.

Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.

In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)

A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.

A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.

Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.

Prepared by Jill Paperno, Second Assistant Monroe County Public Defender

Tuesday, May 11, 2010

Court of Appeals Refuses to Permit Vacatur of Plea where agreed upon sentence unlawfully severe

People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.

On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.


The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up.
It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.

This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.


Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.