ADDITIONAL INDEX NUMBERS #2020-1164 DECISION/ORDER Defendant is charged with Sexual Abuse in the First Degree (2 counts) and Endangering the Welfare of a Child. Defense counsel has made a motion to compel the People to supply a response to the Defendant’s Demand for a Verified Bill of Particulars and in the alternative precluding the People from offering any evidence which would have been responsive to the verified Bill of Particulars. On or about February 22, 2022, the defendant served a Demand for a Verified Bill of Particulars on the People. On or about March 18, 2022, the People responded indicating their refusal to comply with the Demand pursuant to CPL §200.95(4). Pursuant to CPL §200.95(1), the Bill of Particulars is “a written statement by the prosecutor specifying…items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant’s conduct encompassed by the charge which the people intend to prove at trial on their direct case…” The purpose of the bill of particulars is “to disclose more specifically the crime or crimes charged in the indictment and to provide amplification and clarification of certain matters set forth in the pleading.” (People v. Dziedzic, 140 A.D.2d 737 [3rd Dept 1988]), quoting Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 200.95, at 546). The Bill of Particulars is not intended to be a discovery device but is intended to clarify the charges in the indictment. (People v. Zurita, 64 AD3d 800 [2nd Dept 2009]). As such, the People are not required to set forth evidence that they intend to introduce at trial. ( Id.) Defense counsel’s Demand for Bill of Particulars does not request any factual information not recited in the indictment which the people intend to prove in their direct case. The Demand for Bill of Particulars directly relates to “acts of sexual contact” “prior to July 4, 2019.” Acts alleged in the indictment occurred after July 4 and through July 8, 2019. Acts prior to July 4, 2019 are those in the People’s Molineux application. In fact, the letter enclosing the Demand for Verified Bill of Particulars indicating that same was “In regards to the Court’s decision to allow testimony of alleged prior bad acts.” Those alleged “prior bad acts” are outside the scope of CPL §200.95(1) as they are not an amplification of the allegations in the indictment. While the pending motion directly addressed the Demand for Bill of Particulars, seeking preclusion, another argument was brought up during oral argument. That is, defense counsel argued that the requested information should have been provided pursuant to CPL §245.20. While this CPL §245.20 is not cited or discussed in the written motion, the Court will address it as it was discussed during motion argument. While CPL §245.20 is often seen as a “catch all” for defense counsel to seek discovery, even that is limited. Specifically, CPL §245.20 requires the prosecutor to disclose to the defendant certain discovery “that relate to the subject matter of the case…” Again, the information sought by defense counsel does not relate to the subject matter of the case. Instead, the information sought by the defense is directly related to prior bad acts the prosecutor sought to use to set forth motive and intent and absence of mistake. Therefore, the Court finds that the use of CPL §245.20 to support defense counsel’s position is misplaced. To find otherwise would create a trial within a trial based upon the alleged prior bad acts of the defendant. The Court hereby denies the motion to compel or preclude evidence which would have been responsive to the Defendant’s Demand for a Verified Bill of Particulars. Further, the Court is not moved by the oral argument that evidence responsive to the Demand for Verified Bill of Particulars comes within the confines of CPL §245.20. That motion, although not preserved in writing, is also hereby denied. This constitutes the decision and order of the Court. Dated: April , 2022
