New York Criminal Lawyer Blog
In November 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.
A New York Criminal lawyer said that, five years later, 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, 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.
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 sex 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. For any other felonies, the People must commence a prosecution within five years after the commission of the offense. For misdemeanors, a prosecution must commence within two years of the commission of the offense. 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.
However, an extension of these time periods is allowed in certain circumstances. 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.
CPL 30.10(4)(a)(ii) excludes from the statute of limitations “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.”
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.
In November 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 said that she had initially lied because she did not want her parents to know that she 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.
Thereafter, the complainant, then 19 years old, reported to the police that the defendant, her stepgrandfather, did rape her on three separate occasions in 2002.
The first tolling provision, CPL 30.10(3)(f), applies, inter alia, to crimes involving a sexual offense 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.
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.
Turning to the first exception, the defendant argues that the sex crimes charged in the indictment, spanning three periods of time, were “reported” within the meaning of CPL 30.10(3)(f) on the day the complainant first spoke to the police about an alleged rape resulting in her pregnancy. CPL 30.10(3)(f) provides, in pertinent part, that “[f]or purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age the period of limitation shall not begin to run until … the offense is reported to a law enforcement agency”. The complainant’s statement to the police on November 8, 2002, in which she never even mentioned the defendant, was not a “report” within the meaning of CPL 30.10(3)(f).
Accordingly, contrary to the defendant’s contention, the statutes of limitations did not begin to run on that date.
“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. If the statutory language chosen by the Legislature is clear and unambiguous, and “involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning”.
Based on its ordinary meaning, the “report” as contemplated in CPL 30.10(3)(f) must provide a description of harm caused by the conduct of the criminal offender. It follows that the sex crimes charged in the accusatory instrument must derive, at least in part, from this report. Thus, there must be a nexus between the conduct alleged in the report and that charged in the accusatory instrument brought by the People. To hold otherwise would be absurd and thwart attempts to bring sexual predators to justice.
The legislative history also supports our conclusion. Subsection (f) was included as part of a 1996 amendment to CPL 30.10(3). The Legislature recognized that the extension of the statute of limitations period until the child reaches the age of 18 helps children who are victims of sexual abuse obtain redress through criminal prosecutions.
According to the Legislature, “[c]hild victims of sexual abuse are usually violated by people with whom they have an ongoing relationship. The above usually occurs frequently and regularly over a long period of time during which for various reasons children do not disclose” The Governor reiterated this view:
“In sex crime cases committed against children less than 18 years old, the five-year statute of limitations applicable to sex offenses begins to run on the date the crime is committed. Of course, however, child-victims of sex offenses cannot fully appreciate the crimes committed against them until they reach maturity; many child-victims are victimized by parents or other persons with whom they have a close relationship, and cannot reasonably be expected to report these crimes while they remain under the sway of their abusers would therefore allow for the prosecution of sex offenders who prey on victims under the age of [18] to be commenced as late as the victim’s [23rd] birthday if the offense went unreported prior to the victim’s [18th] birthday”.
In support of the proposed amendment, the New York Council on Children and Families also noted, “The Council believes that the delayed running of the statute of limitations for sex offenses involving children will increase the likelihood that young adults, recently freed from a position of dependency, will disclose the offenses committed against them in order to seek redress through the criminal justice system”
It would be completely contrary to the spirit of the amendment to conclude, as the defendant urges, that the statute of limitations is triggered when a child falsely reports that she was raped by another child at school and then recants the allegation, when in reality the child is being sexually abused at home by someone with whom she has an ongoing familial relationship.
The facts here are consistent with the Legislature’s concerns. Namely, when the complainant was 14 years old and still being victimized by the defendant and residing with him, she implicated another student as having impregnated her. Moreover, the complainant testified before the grand jury that, at the time she was being abused, her grandmother did not believe that the defendant-the grandmother’s husband-was abusing her. Furthermore, the defendant allegedly had threatened to abuse the complainant’s sister if she did not comply with his demands.
Accordingly, the complainant’s 2002 statements to the police fall squarely within the legislative concerns to protect child-victims who do not report their abuse until they are young adults and, therefore, no longer under the sway of their abuser.
The defendant was also charged with several non-sex-related misdemeanors and violations. The Court thus turn next to whether the tolling provision under CPL 30.10(4)(a)(ii) applies to those charges. In calculating the time limitation within which the People must commence a criminal action, CPL 30.10(4)(a)(ii) provides that “[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” shall not be included. We conclude that this provision does not apply, and that the non-sex-related misdemeanors and violations are thus time-barred.
In a case, , the Court of Appeals construed the meaning of the term “whereabouts” as it was used in CPL 30.10(4)(a)(ii). In doing so, the Court determined whether knowledge of the defendant’s identity was encompassed within the term “whereabouts”. In this case, the defendant committed multiple attempted murders as well as other felonies. The defendant authored letters claiming responsibility to the police and the New York Post. The police department set up multiple task forces to apprehend the defendant, but its efforts proved unsuccessful. The Court held that the tolling provision is not conditioned on knowledge of the defendant’s identity. The Court added: “The police may be ignorant of the whereabouts of a perpetrator of a crime where they have identified the perpetrator but lack knowledge of his or her physical location, or where they have not identified the perpetrator at all and thus cannot determine where he or she is. The phrase ‘whereabouts of the defendant’ must be deemed to include both situations”
Here, the report made by the complainant in December 2007 was filed with the police more than five years after the defendant allegedly committed the non-sex-related misdemeanors and violations against her. During those intervening years-from 2002 to 2007-the police were not aware that a crime was ever committed against the complainant by the defendant; they were unaware of the commission of the offenses, and were thus unaware of the defendant’s identity as well. Thus, as to the non-sex-related misdemeanors and violations charged in the indictment, CPL 30.10(4)(a)(ii) does not apply to toll the statute of limitations for the period of time between when the defendant’s conduct was alleged to have occurred and the complainant’s report to the police in December 2007.
Accordingly, the Court affirmed so much of the order of the Supreme Court as granted those branches of the defendant’s motion which were to dismiss the following charges in the indictment: endangering the welfare of a child in violation of Penal Law § 260.10(1), harassment in the second degree in violation of Penal Law § 240.26(1), and menacing in the third degree in violation of Penal Law § 120.15.
Sexual Abuse victims deserve to be counseled by lawyers who are dedicated and concern with the feelings of the victims. Here in Stephen Bilkis and Associates, our New York Criminal attorneys will help these victims by filing the necessary complaint in Courts in order for the offender be made answerable with his unlawful acts. Our New York Sexual Abuse lawyers will be helping you know your rights as a victim and to enforce these rights in Court.