The “Holmes-Austin Rule”: Temporal Defects in an Indictment May Be Cured by Related Counts and Bills of Particulars

Introduction

People v. Holmes-Austin (2025 NY Slip Op 03021) was decided by the Appellate Division, First Department, on 20 May 2025. The defendant, Justin Holmes-Austin, allegedly operated a gun-running pipeline from Georgia to New York, selling dozens of firearms between 2018 and 2020. After pleading guilty to first-degree criminal sale of a firearm and fourth-degree conspiracy, he challenged—for the first time on appeal—the jurisdictional sufficiency of the first-degree firearm count (Count 3). His principal contention was that Count 3 charged sales occurring “on or about January 6 2019 to on or about January 6 2020,” a span he claimed exceeded the Penal Law §265.13(2) requirement that the sales occur within “not more than one year.”

The appellate court unanimously rejected the challenge and affirmed the conviction. Its opinion crystallizes a new procedural principle: where the challenged count’s temporal allegation is ambiguous or facially overbroad, the defect is curable if the indictment read as a whole—together with any bill of particulars—supplies specific dates that confine the conduct to the statutory period, thereby providing the defendant fair notice.

Summary of the Judgment

The court held that Count 3 was not jurisdictionally defective even though its wording seemingly covered one year and one day.
Specific dates pled in Count 1 (overt acts) and reiterated in the bill of particulars made clear that all qualifying firearm sales occurred between 28 March 2019 and 6 January 2020—284 days, well within one year.
Because those documents gave the defendant “reasonable information as to the nature and character of the crime charged,” any drafting imprecision was curable.
The defendant’s waiver of the right to appeal foreclosed an excessive-sentence claim; regardless, the court saw no reason to reduce the 10-year term.
The conviction and sentences were therefore affirmed in full.

Analysis

1. Precedents Cited

The decision weaves together a line of cases that differentiate non-curable jurisdictional defects from curable pleading deficiencies:

People v. Iannone, 45 NY2d 589 (1978) – foundational statement that an indictment is jurisdictionally defective only if it fails to charge a crime at all.
People v. Saenger, 39 NY3d 433 (2023) – re-affirmed Iannone and permitted first-time appellate challenges to jurisdiction.
People v. Morris, 61 NY2d 290 (1984) – announced that certain pleading lapses can be cured by a bill of particulars when fair-notice concerns are satisfied.
People v. Solomon, 203 AD3d 1468 (3d Dept 2022), aff’d 39 NY3d 1114 (2023) – dismissed an accusatory instrument that misstated an element (child’s age) which could not be cured.
People v. Lawrence, 179 AD3d 1155 (3d Dept 2020); People v. Stewart, 92 AD3d 1146 (3d Dept 2012) – further examples where the pleaded facts could not constitute the charged crimes.
People v. Sans, 26 NY3d 13 (2015) – upheld a misdemeanor information where missing statutory wording was supplied by context.
People v. Winston, 205 AD3d 32 (1st Dept 2022) – dismissed hate-crime counts lacking deadly-weapon allegations; evidence outside the indictment could not cure.

Holmes-Austin applies the Morris “curable defect” doctrine to an indictment—as distinct from a simplified information—holding that a temporal misstatement can be salvaged if the indictment or bill of particulars elsewhere supplies dates satisfying the statutory element.

2. Legal Reasoning

Jurisdictional-Defect Framework. A count is fatally defective only when it “does not effectively charge the defendant with the commission of a particular crime.” Temporal overbreadth, standing alone, may or may not reach that threshold.
Fair-Notice Standard. The constitutional and statutory test is whether the defendant received “reasonable information as to the nature and character of the crime.” The court found that the combined charging documents precisely identified 18 sales on 14 discrete dates, all within a one-year window.
The “On or About” Language. Courts traditionally view “on or about” as a term of art signifying approximation. The presence of specific dates elsewhere nullified the risk that the approximation drifted outside the statutory period.
Bill of Particulars as a Curative Tool. Consistent with Morris, supplemental specifics can cure an indictment so long as they do not impermissibly broaden the grand-jury charge. Here, they merely narrowed the timeframe.
Distinguishing Uncurable Defects. In cases like Solomon or Winston the defect eliminated an essential element; no amount of external detail could resuscitate the charge. By contrast, Holmes-Austin’s element (the “one-year” requirement) was met in fact; it was only obscured by loose wording.

3. Impact

The decision is poised to influence New York criminal procedure on multiple fronts:

Drafting Flexibility. Prosecutors gain confirmation that minor temporal imprecision can be cured by incorporating detailed overt acts or supplying a bill of particulars—so long as grand-jury evidence supports the narrowed period.
Defense Strategy. Defendants must scrutinize the entire accusatory package early; waiting to raise a temporal-defect argument on appeal may be futile if curing information was provided before plea.
Scope Beyond Firearms. The holding will likely extend to any offense with a built-in temporal metric (e.g., pattern narcotics sales, ongoing sex offenses, continuing conspiracies).
Grand-Jury Integrity. The opinion implicitly warns prosecutors to ensure the grand-jury minutes match the eventually relied-upon timeframe, lest a future Winston scenario arise.
Legislative Context. Although Penal Law §265.13 was amended in 2022 to require only three firearms, the ruling clarifies pleading expectations under both the old and new versions.

Complex Concepts Simplified

Indictment: A formal felony accusation issued by a grand jury.
Jurisdictional Defect: A flaw so severe that the count fails to charge any crime; it can be raised at any time and cannot be waived.
Bill of Particulars: A document, supplied by the prosecution on demand, that gives additional detail about charges to aid the defense.
“On or About”: Standard pleading phrase allowing slight variance in dates; acceptable unless the variance prejudices the defendant or omits an element.
First-Degree Criminal Sale of a Firearm (pre-2022 version): Sale of 10 or more firearms to the same buyer within any 12-month period.
Plea & Waiver of Appeal: A defendant may agree, as part of a plea bargain, not to challenge the sentence or certain rulings on appeal—though jurisdictional claims remain reviewable.

Conclusion

Holmes-Austin establishes a practical, defendant-protective yet prosecution-sustaining middle ground: temporal ambiguities in an indictment count do not mandate dismissal when other counts or a bill of particulars unmistakably cabin the conduct within the statutory limit. The decision harmonizes earlier caselaw, affirms the primacy of fair notice, and signals to courts and practitioners that context matters when gauging jurisdictional sufficiency. Going forward, the “Holmes-Austin Rule” will guide litigants in distinguishing fatal drafting errors from those amenable to cure, thereby promoting both procedural integrity and substantive justice in New York criminal prosecutions.