People v. Quinto

907 N.Y.S.2d 59

77 A.D.3d 76

The PEOPLE, etc., appellant,

v.Santos QUINTO, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 31, 2010.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for appellant.

Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

BELEN, J.

On November 8, 2002, the complaining witness, then 14 years old and pregnant, first told medical providers and then the police that she had been raped by a 14-year-old classmate in her school. Once inconsistencies in her story were revealed,she stated that she had engaged in consensual sex with this classmate. Five years later, in December 2007, the complainant, now age 19, reported to the police that the defendant, her stepgrandfather, had engaged in sexual intercourse with her several years before. The complainant testified before a grand jury that, over three time periods in 2002, the defendant raped her. The People filed an indictment on January 23, 2008, alleging that the defendant committed several felonies, misdemeanors, and violations during those three periods in 2002. The defendant moved to dismiss the indictment, contending that because the complainant had first "reported" the incident to the police in 2002, the indictment should be dismissed as time-barred. The Supreme Court agreed and dismissed the indictment in its entirety. The People appeal, and we modify.

New York Criminal Procedure Law § 30.10(2) is a statute of limitations setting forth time limits for the People to commence a prosecution for certain crimes. The window of time to bring charges against a defendant closes according to the severity of the crime: for class-A felonies, the People can commence a prosecution at any time ( see CPL 30.10[2][a] ). For any otherfelonies, the People must commence a prosecution within five years after the commission of the offense ( see CPL 30.10[2][b] ). For misdemeanors, a prosecution must commence within two years of the commission of the offense ( see CPL 30.10[2][c] ). And for violations, which pursuant to CPL 1.20(39) are within the definition of a "petty offense," the prosecution must commence within one year of the commission of the offense ( see CPL 30.10[2] [d] ).

However, an extension of these time periods is allowed in certain circumstances ( see generally CPL 30.10[3] ). For certain sex crimes committed against children, the statute of limitations is tolled until either (1) the child reaches the age of 18, or (2) the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever is first.¹

CPL 30.10(4)(a)(ii) excludes from the statute of limitations "[a]ny period following the commission of the offense during which ... the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence." At issue here is whether the crimes charged in the indictment against the defendant are time-barred or, because of the effect of the above tolling provisions, are timely.

On November 8, 2002, the complainant, then 14 years old, underwent a medical examination that revealed she was pregnant. She reported that the cause of the pregnancy was that she had been raped by her 14-year-old classmate, which occurred at their school. The complainant met with the police later that day. Once the complainant's story revealed inconsistencies, she retracted her statement that she had been raped, but instead said that she had engaged in consensual unprotected sex with the classmate. At the time, she saidthat she had initially lied because she did not want her parents to know thatshe was having sex. As a result, she signed a statement that acknowledged that she was not raped as originally reported, and the case was closed. ²

In December 2007 the complainant, then 19 years old, reported to the police that the defendant, her stepgrandfather, raped her on three separate occasions in 2002. The three time periods forming the basis for the indictment were May 1, 2002, to June 30, 2002; July 1, 2002, to August 31, 2002; and September 1, 2002, to September 20, 2002.

The complainant testified before the grand jury on December 21, 2007, that, during the period between May 1, 2002, and June 30, 2002, at the home that the complainant and the defendant shared, the defendant placed his hands on her breasts and buttocks "many times" and, on a day during that period and in that location, placed his penis inside her vagina. The complainant testified that, on a day during the time period between July 1, 2002, and August 31, 2002, and in the same location, the defendant touched her breasts, slapped her in the face, removed her clothing, and placed his penis in her vagina. She further testified that, on a date during the period of September 1, 2002, and September 30, 2002, and in the same location, the defendant threatened that if she did not have sex with him, he would have sex with her sister. She further testified that on a date during this time period, the defendant placed his penis in her vagina as well.

The complainant told the grand jury that, during all of these incidents, she was 14 years old and resided with her grandmother, father, siblings, cousins, and the defendant. All of the incidents of abuse occurred inside of the home. The complainant testified that she told her grandmother that the defendant, her grandmother's husband, was touching her, but her grandmother did not believe her. Thereafter, when the complainant found out that she was pregnant, she did not tell anyone that the defendant had impregnated her, because he warned her not to say anything and she was afraid.

After the grand jury voted a true bill, the People filed an indictment on January 23, 2008, charging the defendant for acts that occurred during these three time periods, as follows:

For the period from May 1, 2002, to June 30, 2002, the defendant was indicted on charges of rape in the second degree in violation of Penal Law § 130.30(1) (a class D felony), sexual misconduct in violation of Penal Law § 130.20(1) (a class A misdemeanor), sexual abuse in the third degree in violation of Penal Law § 130.55 (a class B misdemeanor) (two counts), and harassment in the second degree in violation of Penal Law § 240.26(1) (a violation). For the period from July 1, 2002, to August 31, 2002, the defendant was indicted on charges of rape in the second degree in violation of Penal Law § 130.30(1) (a class D felony), rape in the third degree in violation of Penal Law § 130.25(3) (a class E felony), sexual misconduct in violation of Penal Law § 130.20(1) (a class A misdemeanor), menacing in the third degree in violation of Penal Law § 120.15 (a class B misdemeanor), sexual abuse in the third degree in violation of Penal Law § 130.55 (a class B misdemeanor), and harassment in the second degree in violation of Penal Law § 240.26(1) (a violation). Finally, forthe period of September 1, 2002, to September 30, 2002, the defendant was indicted on charges of rape in the second degree in violation of Penal Law § 130.30(1) (a class D felony), sexual misconduct in violation of Penal Law § 130.20(1) (a class A misdemeanor), and harassment in the second degree in violation of Penal Law § 240.26(1) (a violation). The defendant was also charged with endangering the welfare of a child during these three time periods, in violation of Penal Law § 260.10(1) (a class A misdemeanor).

The defendant moved to dismiss the indictment, asserting that the People failed to commence a prosecution for the crimes charged in the indictment within the time period required by CPL 30.10(2)(b)-(d) (providing for a five-year limitation for certain felonies, two-year limitation for misdemeanors, and one-year limitation for petty offenses, respectively) and that the tolling provisions found in CPL 30.10(3)(f) and 30.10(4)(a)(ii) do not apply.

The indictment charges the defendant with crimes committed over a four-month period between May 1, 2002, and September 30, 2002. For the crimes charged, the relevant statutes of limitation were five years for the felonies, two years for the misdemeanors, and one year for the violations ( see CPL 30.10[2][b]-[d] ). The criminal action here was commenced on December 20, 2007, with the filing of the criminal complaint. The commencement of this action is therefore well after the five-, two-, or one-year statutes of limitations. Thus, for the indictment tobe reinstated, the crimes charged must come within either of the two tolling provisions set forth in CPL 30.10(3)(f) and 30.10(4)(a) (ii).

The first tolling provision, CPL 30.10(3)(f), applies, inter alia, to crimes involving a sexual offense (defined in Article 130 of the Penal Law) against a child less than 18 years old. In such a case, the time to commence a criminal action is tolled until either (a) the child has reached the age of 18, or (b) the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever comes first ( see e.g. People v. Heil, 70 A.D.3d 1490, 1491, 894 N.Y.S.2d 664; People v. Hammons, 7 Misc.3d 1028[A], 2005 WL 1253819 [Sup. Ct., Monroe County] ).

The second tolling provision, CPL 30.10(4)(a)(ii), applies to any type of crime and is not limited to sex offenses. In calculating the time limitation applicable to the commencement of a criminal action, any period following the commission of the offense during which the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence is not included ( see e.g. People v. Seda, 93 N.Y.2d 307, 690 N.Y.S.2d 517, 712 N.E.2d 682; People v. Jordan, 43 A.D.3d 1076, 842 N.Y.S.2d 60).

Turning to the first exception, the defendant argues that the sex crimes charged in the indictment,...