Are Dates of Sexual Crimes Against Children a Material Element in New York ?

In People v. Morris, 61 N.Y.2d 290, 461 N.E.2d 1256 (1984), defendant was charged with rape and sodomy of two children, five and six years of age respectively at the time of the alleged crimes, who had lived in defendant's home, one of whom was defendant's daughter. In the original indictment, the crimes were alleged to have occurred within an unspecified 24 day period. In response to the People's demand for a notice of alibi, defendant demanded a bill of particulars specifying the exact time, place and dates of the alleged crimes. In response, the People, further described the dates as "on or about and between Friday, November 7, 1980 and Saturday, November 31, 1980", and stated that the crimes occurred in defendant's home. The People stated, however, that they did not know the exact times of the crimes. Defendant responded to the alibi demand by stating that he could not answer it unless he was advised of the exact times of the alleged commission of the offense, and moved to dismiss the indictment "on the ground that neither the indictment nor the Bill of Particulars set forth a designated date on or about when each crime occurred, as required by CPL 200.50 (subd. 6)." Id. at 292-293. The trial court granted defendant's motion and its decision was affirmed by the Appellate Division. The Court of Appeals reversed. In its decision, the Court emphasized that because of their age, the alleged victims, were unable to provide more precise dates and times to the prosecution, as the People stated in their papers. Under the circumstances and because, for the crimes charged, "the dates are not material elements" and defendant had been adequately informed of other facts or details such as the place of the alleged crimes and the witnesses present, the Court held that the period set forth in the indictment "as delineated in the bill of particulars, is not so inadequate to justify dismissal." As the Court held: "In the present case, defendant is alleged to have committed two sexual criminal acts over a 24-day period against victims who were only five and six years old and resided in the defendant's home. The dates are not material elements of the crimes. It is not disputed that the young victims were unable to provide the precise dates and hours involved. There has been no showing, indication or even accusation of bad faith by the People. Defendant was arrested 12 days after the end of a period set forth and the Grand Jury indicted defendant five months after the acts alleged occurred.