OPINION Defendant Ricardo Cruciani is a highly regarded medical doctor whose specialty, and special talent, are the provision of relief from chronic pain that other practitioners are unable to alleviate. He has been charged in this case with sex offenses against six of his female patients. The defense alleges that the statute of limitations bars two of the counts in the indictment, one count by 35 days and the other by 93 days.1AThe five year limitations period of CPL 30.10 (2) (b) applies to most counts of the indictment.2 Defendant was first charged in this case in an indictment filed on February 14, 2018.3 Section 30.10 (2) (b) thus presumptively bars prosecution on any one or more of the charged crimes alleged to have been committed before February 14, 2013. This presumption has effect unless the running of the five year period was tolled for long enough that the delay in initiating the prosecution is deemed to be less than five years. CPL 30.10 (4) (a).The indictment charges in count 2 that defendant committed Rape in the Third Degree on a date that may have been as early as January 10, 2013 — five years and 35 days before the date of his indictment. Count 13 charges defendant with committing Criminal Sexual Act in the Third Degree on a date that may have been as early as November 13, 2013 — five years and 93 days before the date of his indictment. Thus count 2 must be dismissed unless the statute was tolled for at least 35 days, and count 13 must be dismissed unless the statute was tolled for at least 93 days.BThe key tolling provision for our purposes is contained in CPL 30.10 (4) (a). This provision excludes from limitations calculations any period following the commission of the offense during which (i) the defendant was continuously outside this state…. Of course, an individual can be absent from the state for weeks or months; return to New York for a time; and then leave for additional weeks or months. And such absences and returns may occur repeatedly over a period of years. The issue that naturally arises in limitations cases concerns which among intermittent periods of absence are those in which a defendant is considered to have been “continuously” outside the state.The Court of Appeals addressed that issue in People v. Knobel, 94 NY2d 226 (1999). The Court agreed with the People that “all periods of a day or more that a non-resident defendant is out-of-State should be totaled and toll the Statute of Limitations.” People v. Knobel, 94 NY2d at 230; see also People v. Chase, 299 AD2d 597, 598-99 (3d Dept 2002); People v. Ferrari, 155 Misc2d 749, 754 (Co Ct Ulster Co 1992). That is true for every day that the defendant is absent for the “full” day. Thus, if defendant in this case was a non-resident and was absent from New York for more than 93 complete days between November 13, 2013, and February 14, 2018, the two challenged counts survive defendant’s attack — even if at various other times in that period defendant was in New York.A defendant seeking a dismissal on limitations grounds has the initial burden of showing that a period longer than the one specified in CPL Section 30.10 (2) (b) — here, as noted, five years — expired between the crime and the filing of the accusatory instrument commencing the prosecution. See People v. Knobel, 94 NY2d at 229; People v. Ferrari, 155 Misc2d at 753. It is rarely difficult to resolve whether a defendant has met that burden; the question will generally be decided quickly by the calender. But a complication does exist here; in each of the two contested counts the People allege that the date of occurrence may be before, or may be after, the critical five-year date. Where such uncertainty exists, the court will presume in the defendant’s favor that the earliest possible date for the crime is the correct one; the People appear to concede that point.And that means defendant has satisfied his burden of going forward, as to the two counts for which he seeks dismissal. It now falls to the People to demonstrate sufficient tolling to bring the criminal action back within the permissible five years, and the People must make their showing “beyond a reasonable doubt.” People v. Thomas, 142 AD3d 1191(2d Dept 2016); People v. Burroughs, 108 AD3d 1103, 1104 (4th Dept 2013). The Court of Appeals has nonetheless stated that it “is defendant’s burden…to show the dates on which he was in this State during the relevant period, in order to stop the toll (CPL 210.45 [7]).” People v. Knobel, 94 NY2d at 226.Any vagaries in those allocations of the burden of proof need not be explored. There are no meaningful disagreements between the parties as to the tolling facts. To the extent that any such disagreement can be identified, this court will for current purposes accept defendant’s position.CWith that as background, the relevant facts should be identified. For a time up to and into 2014, defendant treated thousands of patients at Beth Israel Hospital in Manhattan. He and his wife resided in Larchmont, New York, at 87 Fennimore Road. In January, 2014 defendant left Beth Israel and assumed a faculty position at Capital Health Medical Center in Pennington, New Jersey. On February 14, 2014, defendant and his wife moved to an apartment at 77 Hudson Street in Jersey City. Even after this relocation defendant continued to see some patients at Beth Israel. Next, on February 1, 2016, defendant was named a Professor and the Chairman of the Department of Neurology at the Drexel University School of Medicine in Philadelphia. As part of the hiring process defendant submitted a number of documents, including a W-4 tax form specifying the Jersey City apartment as defendant’s “home address.” Defendant also told Drexel that “I am a resident of New Jersey.” On August 23, 2016, defendant and his wife moved to a town in Pennsylvania. In the information defendant provided to Drexel about his new home, he noted that he and his wife had two cars with New Jersey license plates. The address in Pennsylvania was the one defendant filed with the Pennsylvania Board of Medicine.Even from this distance, defendant continued making occasional trips to Beth Israel to treat patients. Nonetheless, after February 14, 2014, defendant naturally spent many periods without entering New York. For example, between February 14, 2014, and the commencement of this action, defendant spent at least 43 days abroad. The period he spent overseas is by itself greater than the 35 days needed to save count 2 from defendant’s limitations attack.Using various records of his New York visits, defendant identifies at least 136 days in which he was in New York during the five years4 that preceded his indictment. For instance, defendant states that in 2014, after February 14th, he returned here on three days in April, three in May, two in June, one in July, two in August, one in September, four in October, and two in December. Rarely are the specified days consecutive, and it is thus not clear that defendant spent “full” days in New York. But, even according defendant the benefit of the doubt on that score, obviously these spotty appearances do far too little to stop the tolling of the limitations period of well over 1800 days for all but 93 days, the time needed to save both count 2 and count 13.DIf the tolling rule of People v. Knobel applies, then, the People plainly did not violate the Statute of Limitations as to either count 2 or count 13. As stated, under that rule the statute is tolled for every day of a non-resident’s absence from New York. The People believe that defendant was a non-resident of New York after he moved to New Jersey on February 14, 2014. But defendant is stubborn. He posits that Knobel does not apply to him, because he in fact has always been a resident of New York. Here too, the underlying facts are not in serious dispute, and indeed they largely overlap the facts noted above that are relevant to the “continuously outside the state” issue. The court will for current purposes resolve any dispute in defendant’s favor in deciding when defendant was, on those and other facts, a New York resident.Once again, defendant and his wife left their New York home on February 14, 2014, moving first to New Jersey and then to Pennsylvania. Defendant assumed highly responsible medical positions in those states, and they inevitably tied him closely to his New Jersey and Pennsylvania institutions. Defendant was not in New York for even a part of the day on more than 1700 days after his alleged crimes. There is no evidence that, over this period, he ever slept here. There is certainty no suggestion that defendant abandoned or intended to abandon his out-of-state homes, and return permanently to New York. There is no claim that defendant voted here, or otherwise held himself out as a New York resident. Indeed, he expressly told Drexel that he was a New Jersey resident.But, defendant asserts, other facts show that he never stopped residing in New York. Defendant has continued to see patients in Manhattan. He maintains his New York medical license, and he worked for three months in 2017 as a senior researcher for the Metropolitan Jewish Health System in Brooklyn. Defendant and his wife owned property on Boerum Place in Brooklyn from 2015 to 2017. Defendant’s adult son lived at that location, and it was the address listed for defendant with the New York State Department of Health. Defendant paid city property tax on the Brooklyn apartment until it was sold, and had paid property taxes for other locations back to 1993.Defendant also paid New York State income tax from 1991 to 2018. He docked a boat in Mamaroneck from 2010 through August 2015. He maintained a “NYS-based” Citibank account. Defendant’s cellphone is “NY-based” and has a 914 area code. He also maintained a “NY-based” landline until May of 2016. And defendant’s state EZ-Pass account was open until September 2016. Finally, until October 2016 defendant’s wife commuted “regularly” to the Bronx, to her job as a pediatrician at Montefiore Medical Center. All of these facts certainly bespeak defendant’s close personal and professional contacts with New York State. But our question is whether they show that defendant was a New York “resident.”The Criminal Procedure Law does not define “resident” or “non-resident.” Nor is there such a definition in the case law interpreting the limitations provisions of CPL Article 30. But the words themselves are hardly unfamiliar. Merriam-Webster’s Dictionary tells us that one “resides” in a place in which he dwells “permanently or continuously.” Moreover, chapters of the New York statutes outside the CPL use the term “resident” or “residence.” Provisions in those chapters are not binding as to questions of criminal procedure. See, e.g., People v. Knobel, 94 NY2d at 230, supra. But those definitions and usages can be helpful.The tax code, for example, provides that with some exceptions a person is a “resident individual” if he (1) maintains his domicile in New York, or (2) even if his domicile is not in New York, he maintains a permanent place of abode in New York and spends 183 or more days a year here. Tax Law 605 (b)(1). Under the Election Law, a “residence” is the place where a person maintains “a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” Election Law 1-104(22).Under the Domestic Relations Law, one is not a New York resident simply because he is present in the state for extended periods. Service of New York process on someone outside New York in a case brought under the Domestic Relations Law is effective only on a person who was actually “domiciled” in the state. Usher v. Usher, 41 AD2d 368 (3d Dept 1973). Under the Surrogate’s Court Procedure Act, one is a “domiciliary” if he has a “fixed, permanent, and principal home to which he “wherever temporarily located always intends to return.” SCPA 103(15).None of these definitions helps defendant. He has not maintained his home in New York, instead visiting relatively infrequently and, for all we know, sleeping here not at all. Nor has defendant kept a permanent place of abode in the state, or been here more than 183 days a year. He does not assert that, despite the infrequency of his visits, his “residence” has been here — much less that he has maintained a “permanent” and “principal” home in the state since February 14, 2014. Similarly, defendant has not been “domiciled” in the state. In particular, defendant has not maintained a “principal” home here. And he does not suggest that he has always intended ultimately to return to this non-existent home. In that regard, defendant’s movement of his home as of February, 2014, first to one other state and then to a second; his primary employment in those states; and the infrequency of his days or even partial days here, all plainly speak to his being a non-resident of New York.But more should be noted. The most certain indicator of one’s state of residence is plain: it is where one spends most days, works most days, and most importantly regularly puts his head on a pillow at night. The locations where defendant generally has done that since February 2014 are in New Jersey and Pennsylvania. Defendant has no home, or even a dwelling-place, in New York. Defendant cannot now legally vote in New York. He does not receive holiday cards in New York. He has spent perhaps one Thanksgiving in New York.Interesting on the question are facts which defendant does not tell us. The court does not know what property defendant owns in New Jersey and Pennsylvania. Defendant has not focused us on his out-of-state professional contacts, but he has been licensed to practice medicine in New Jersey and Pennsylvania. Since 2014 he has seen many patients and taught many students in those states. If he still has a boat it is not docked in New York. If he has a landline telephone at his Pennsylvania property it does not have a New York area code. Since 2014 defendant doubtless has paid income tax to Pennsylvania and/or New Jersey as well as to New York. Perforce he has paid property tax on whatever property he owns in those states as well. And perhaps he votes outside New York State.All of that casts a dark shadow on defendant’s claims that his very occasional New York employment, his New York medical license, his prior tax payments, his telephone history and the like establish his status as a New York resident over the years since February 14, 2014. And it likewise defeats any “residence” argument based on his ownership until 2017 of a Brooklyn apartment, apparently for his son’s residential benefit and not his own. His head has rested on too many pillows outside New York for his limited ties to New York to control.The court holds that an individual can reside in only one state at a time. Defendant has not resided in New York since 2014 and thus has since been a “non-resident.” Knobel controls. The People have easily established that tolling defeats defendant’s claims. Counts 2 and 13 should not be dismissed under the Statute of Limitations.EKnobel establishes the tolling rule for non-residents. This state’s appellate courts have not yet had cause to define the tolling rule for residents. One might speculate. The general intent of the relevant limitations laws as to individuals who are outside the state is to account for absences that make it difficult to bring a New York criminal to justice. Those rules might well be different for residents who depart from New York for periods that do not, for practical purposes, prevent the authorities from locating them. For example, a state resident’s departure for a brief vacation in South America might be thought irrelevant to the People’s ability to arrest him. Even a student’s sojourn to Notre Dame or Oxford for years, perhaps interrupted for occasional returns, might not be enough to make the student a “non-resident” and thus toll a limitations period. It may be that CPL 30.10 (4)(a)(i), dealing with continuous absences, will be thought to have no applicability to residents. The courts could conclude that absences from New York of residents of the state should instead be assessed solely under CPL 30.10 (4) (a) (ii). That provision tolls the running of a limitations statute only when “the whereabouts of the defendant were continuously unknown and were continuously unascertainable by the exercise of due diligence.”But those considerations need not lengthen this opinion. Defendant has not been resident in New York since early in 2014. His motion to dismiss two counts must be denied.
