PEOPLE v. ZURITA

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Maria ZURITA, appellant.

Decided: July 28, 2009

ROBERT A. SPOLZINO, J.P., MARK C. DILLON, HOWARD MILLER, and THOMAS A. DICKERSON, JJ. Gribetz & Loewenberg, PLLC, New City, N.Y. (Deborah Wolikow Loewenberg of counsel), for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered May 9, 2008, convicting her of endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for further proceedings pursuant to CPL 460.50(5).

 We reject the defendant's contention that the prosecution changed its theory of the case after the County Court dismissed the count of rape in the third degree (see People v. Albanese, 45 A.D.3d 691, 850 N.Y.S.2d 112).   The evidence presented at trial was consistent with the People's amended bill of particulars as well as the information presented to the grand jury (see People v. Sommerville, 30 A.D.3d 1093, 816 N.Y.S.2d 651;  People v. Wieber, 202 A.D.2d 789, 609 N.Y.S.2d 398).   Accordingly, the defendant had “fair notice” of the accusations against her (People v. Grega, 72 N.Y.2d 489, 496, 534 N.Y.S.2d 647, 531 N.E.2d 279;  see People v. Wideman, 195 A.D.2d 582, 600 N.Y.S.2d 496).

 We also reject the defendant's contention that the People's amended bill of particulars was deficient.   A criminal bill of particulars is not a discovery device, but merely serves to clarify the indictment (see People v. Davis, 41 N.Y.2d 678, 680, 394 N.Y.S.2d 865, 363 N.E.2d 572;  People v. Earel, 220 A.D.2d 899, 632 N.Y.S.2d 689, affd. 89 N.Y.2d 960, 655 N.Y.S.2d 859, 678 N.E.2d 471).   A bill of particulars therefore need not set forth the evidence that the People intend to introduce at trial (see People v. Earel, 220 A.D.2d at 899, 632 N.Y.S.2d 689;  People v. Bignall, 195 A.D.2d 997, 997-998, 600 N.Y.S.2d 560;  People v. Spina, 14 A.D.2d 505, 217 N.Y.S.2d 247).   Here, the defendant failed to demonstrate that the People's amended bill of particulars caused any prejudice to her ability to adequately prepare for, and defend herself at, the trial (see People v. Bignall, 195 A.D.2d at 997-998, 600 N.Y.S.2d 560;  cf. People v. Carney, 222 A.D.2d 1006, 636 N.Y.S.2d 524), as evidenced by, inter alia, defense counsel's summation to the jury.

 Contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is no indication that the defendant was punished for exercising her right to proceed to trial (see People v. Davis, 27 A.D.3d 761, 815 N.Y.S.2d 612;  People v. Carillo, 297 A.D.2d 288, 746 N.Y.S.2d 36).   It is “to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814).   Moreover, the sentence imposed was not excessive (see People v. Felix, 58 N.Y.2d 156, 460 N.Y.S.2d 1, 446 N.E.2d 757;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

Copied to clipboard