instrument, as supplemented by a bill of particulars, must still be scrutinized to determine whether the time interval passes constitutional muster. (Id.) That determination must be made in each case taking into account all relevant circumstances. (People v Morris, supra, 61 NY2d at 290, 295.) As stated in Watt,
"The noninclusive list of factors includes the length of the time span provided by the People and the knowledge the People possess or should acquire with reasonable diligence of the exact or approximate date or dates of the criminal conduct. Additionally, relevant factors include the age and intelligence of the victim and other witnesses; the nature of the offense or offenses, including whether they are likely to be discovered immediately and whether there is a criminal pattern; and all other surrounding circumstances." (
People v Watt, supra, 81 NY2d at 774-775.)
In this case, the time interval is 6 months and 11 days. That time period is significantly longer than the time period in
Morris and exceeds the time period in
Watt by almost 1½ months. In the view of this court, the time span is per se unreasonable. Nevertheless, dismissal is stayed pending the filing by the District Attorney, within 21 days of the date of this order, either a prosecutor's information, a superseding information, or a bill of particulars, alleging a shorter time period for the charge in this case. (
See CPL 170.35 [1] [a].) The People must keep in mind that if they intend to prove that the alleged crime was committed within a certain time span rather than on a specific date, then they should consider the factors as outlined in this opinion. If the defendant is of the opinion that the paperwork filed by the District Attorney has not adequately cured the defect and that the charge lacks sufficient clarity, then he has leave to renew the motion to dismiss the charge. The court further concludes that the crime of sexual misconduct as alleged in this accusatory instrument is duplicitous and must be dismissed. Given that the crime of sexual misconduct under Penal Law § 130.20 (1) punishes the performance of a single act, it is not a continuing crime. For this reason, the prohibition against duplicitous pleadings is applicable. In this case, the defendant is alleged to have had sexual intercourse repeatedly with a 14-year-old girl for a period of almost seven months. As drafted, the accusatory instrument alleges the commission of multiple violations of sexual misconduct under Penal Law
§ 130.20 (1) and is, therefore, defective. Nevertheless, dismissal is stayed pending the filing of either a superseding information, a prosecutor's information, or a bill of particulars by the District Attorney, curing this defect, within 21 days of the date of this order. As noted in
People v Davis (72 NY2d 32, 38 [1988]), when "the number of offenses charged by a particular count [of an indictment] is uncertain because the precise time of the commission of the crime is not clearly stated . . . [t]he defect may be cured by reference to a bill of particulars." Finally, the court acknowledges that the accusatory instrument in this case is an information and, as such, is governed by articles 100 and 170 of the Criminal Procedure Law, both of which lack the provisions contained in CPL 200.30 and 200.50.
The court further acknowledges that CPL 200.30 and 200.50 are not expressly applicable to informations. That the Legislature failed to extend the requirements contained in CPL 200.30 and 200.50 to informations, however, is not dispositive. The provisions of CPL 200.30 and 200.50 serve a due process role in that they provide the defendant with sufficient information as to the nature of the charge and the underlying conduct so that he/she may prepare a defense. (
See e.g. People v Shack, 86 NY2d 529 [1995].) Not only do these provisions further the defendant's right to due process under both the Federal and New York State Constitutions, but they also serve to protect the defendant from being placed in jeopardy for the same offense. (
People v Morris, supra, 61 NY2d at 293.) In addition, these provisions ensure the unanimity of the verdict, which is required under both the United States Constitution and the Criminal Procedure Law.
It is clear, therefore, that the provisions of CPL 200.30 and 200.50, which prohibit duplicitous pleadings and which require sufficient precision in the drafting of charges, are constitutionally required in all criminal cases. (See e.g. People v Saldana, 172 Misc 2d 79 [Crim Ct, Bronx County 1997]; see People v Mitchell, 151 Misc 2d 208 [Crim Ct, Kings County 1991]; see also People v Todd, 119 Misc 2d 488 [Crim Ct, NY County 1983].) As discussed above, those constitutional rights and protections have been violated in this case. Accordingly, the defendant's motion to dismiss the information is granted. The court's order, however, is stayed for 21 days in accordance with this opinion. [1] The Criminal Procedure Law, however, requires that a prosecutor's information "be in the form prescribed for an indictment, pursuant to section 200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense." (CPL 100.35.) No similar provision exists for informations. [2] The New York State Constitution does not provide the right to a trial by jury when a defendant is prosecuted by a local criminal court accusatory instrument. (See People v Erickson, 302 NY 461 [1951].) The State Constitution grants a defendant such right only where he has been indicted by a grand jury for any offense or where the defendant is being prosecuted by a superior court information. (See NY Const, art I, § 2; see also NY Const, art VI, § 18.) The State Constitution notwithstanding, the United States Supreme Court, in Baldwin v New York (399 US 66 [1970]), held that the United States Constitution guarantees a defendant the right to a jury trial for any "serious" offense, for which an authorized sentence in excess of six months can be imposed. The federal constitutional requirement is met where the jury is composed of at least six persons. (See Williams v Florida, 399 US 78 [1970]; Apodaca v Oregon, 406 US 404 [1972] [the Federal Constitution does not require that a jury be comprised of 12 persons]; see also Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 340.40, at 119-120.) If the number is set at six persons, however, then the jury's verdict requires unanimity. (See Burch v Louisiana, 441 US 130 [1979].) Following the decision in Baldwin, the New York State Legislature, in 1971, expanded the statutory right to a jury trial for misdemeanors prosecuted by information in the New York City Criminal Court for which the authorized sentence is in excess of six months. (See CPL 340.40.) Pursuant to CPL 360.10 (1), a jury trial of an information in a local criminal court consists of six jurors. If not expressly stated, implicit in the New York statutory scheme is the requirement that the jury's verdict must be unanimous. (See CPL 360.55, 310.50, 310.80.)