This is a decision on a motion filed by defense counsel. Defendant is charged with course of Sexual Conduct Against a Child in the First Degree (Penal Law § 130.75 [a]) and Endangering the Welfare of a Child (Penal Law § 260.10 [1]).

I.Inspection of Grand Jury Minutes

Defendant moves for inspection of the Grand Jury minutes pursuant to CPL 210.30 and to dismiss or reduce the indictment for insufficiency or defects. Defendant also moves for release of the Grand Jury minutes. The People oppose the motion and provided a copy of the Grand Jury minutes for the Court's in-camera review.

On a motion to dismiss an indictment under CPL 210.20 (1) (b), the evidence before the Grand Jury is examined for legal sufficiency, i.e., to determine whether there is competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10 [1]; see, People v Deegan, 69 NY2d 976, 978-979). The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the [*2]light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (People v Jennings, 69 NY2d 103, 114; see, People v Galatro, 84 NY2d 160). Even in a wholly circumstantial evidence case, the standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes (People v Deegan, supra , at 979). That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference (id.; see, People v Bello, 92 NY2d 523, 525-526). Under that standard of review, all questions as to the quality or weight of the proof should be deferred (People v Jennings, supra , at 115; see, People v Galatro, supra , at 164).

The Court fully examined the stenographic minutes of the Grand Jury proceeding and denies dismissal or reduction of the indictment against defendant. There was no defect in the proceeding and the jury was fully charged with respect to the principles of law that were required for this particular case. The Court concludes that the evidence was legally sufficient to establish the offenses charged.

Although defendant is not charged with incest (Penal Law § 255.25), defense counsel asserts that corroboration is required and specifically references Penal Law § 255.30 (2). Penal Law § 255.30(2) provides that "a person shall not be convicted of incest . . . solely upon the testimony of the other party unsupported by other evidence tending to establish that the defendant . . . was a relative of the other party . . ." (see, People v Brathwaite, 176 Misc2d 79, 81). "There is no requirement of corroboration of the victim's sworn testimony in the prosecution of a sex act to which the victim is deemed incapable of consenting based on his or her age" (People v Lamphier, 302 AD2d 864, 865; see, Penal Law § 130.16; People v McLoud, 291 AD2d 867, 867-868, lv denied 98 NY2d 678; People v Sherman, 250 AD2d 873).

Here, the victim, who was over the age of 18 when she testified, gave sworn testimony before the Grand Jury. The relationship between the victim and defendant was corroborated by another witness. Another witness also corroborated the victim's testimony. As such, the victim's testimony was corroborated to the extent corroboration was required.

Dismissal of an indictment is an exceptional remedy and it is not warranted in this case (see, People v Darby, 75 NY2d 449). Therefore, defendant's motion to dismiss pursuant to CPL 210.20, and 210.30 is denied in all respects.

Defendant's request for release of a copy of the Grand Jury minutes is denied (see, Matter of Brown v Rotker, 215 AD2d 378, lv denied 86 NY2d 706).

II.Statute of Limitations

Defendant moves for dismissal of the first count on the grounds that prosecution is barred by the applicable five-year Statute of Limitations. The People oppose the motion.

CPL 30.10 (3) (e) provides:

"A prosecution for course of sexual conduct in the first degree . . . may be commenced within five years of the commission of the most recent act of sexual conduct."

CPL 30.10 (3) (f) provides:

"For purposes of a prosecution involving a sexual offense as defined in article one [*3]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 child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier."

Section (e) defines the applicable period of limitations for course of sexual conduct (Penal law § 130.75 and section (f) provides a tolling provision, much like the toll for infancy in a civil case.

The legislative intent in enacting sections (e) and (f), is found in the Assembly Memorandum in Support of the legislation and the Governor's Memorandum approving the bill. The purpose of the legislation is "[t]o recognize the vulnerability of child victims of assault, and to permit the prosecution of individuals for repeated acts of rape, sodomy or sexual abuse against young victims who are unable to recall the precise details of each separate attack, by creating two new crimes involving the continued course of sexual conduct against a child" (Assembly Mem in Support, 1996 McKinney's Session Laws of NY, at 2085). Additionally, "the bill amends [CPL 30.10] to specify that the statute of limitations for these crimes shall be calculated from the most recent act of sexual conduct. This codifies current case law which holds that the statute of limitations for continuing crimes runs from the last act comprising that continuous crime and it is immaterial that the crime began on a date not within the statute [of limitations]" (id.).

The Governor's Memorandum provides:

"[t]he bill removes an impediment to the prosecution of persons who commit sex crimes against children less than 11 years old. . . . The bill also provides a much-needed reform bearing on the ability of child-victims of sexual abuse to obtain redress through criminal prosecutions. . . . the statute of limitations would not begin to run until the child reaches the age of [18] or at the date the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier. This change 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 [23] birthday if the offense went unreported prior to the victim's [18] birthday."

(Governor's Mem. approving L. 1996, ch. 122, 1996 McKinney's Session Laws of NY, at 1863-1864).

The legislative intent contradicts defendant's argument that CPL 30.10 (3) (f) does not extend to the crime of course of sexual conduct. Defendant cites no case law and the legislative intent mandates the conclusion that the tolling provision of CPL 30.10 (3) (f) is applicable to course of sexual conduct.

In the instant case, shortly before her eighteenth birthday, the complainant disclosed the sexual abuse in September 2004, to law enforcement. More than five years have not elapsed since the complainant reported the abuse to law enforcement. As such, the Court concludes that the first count is not barred by the statute of limitations. Consequently, defendant's motion to dismiss the first count is denied.

III.Speedy Trial Motion [*4]

Defendant contends that the indictment is subject to dismissal because defendant has been denied the right to a speedy trial as required by CPL 30.20, Civil Rights Law § 12 and the Sixth Amendment of the United States Constitution. Defendant claims to be prejudiced by the lengthy and unjustified delay between arrest and indictment. The People oppose the motion.

Defendant contends that his constitutional right to a speedy trial was violated by the delay between his arrest (October 5, 2004) and indictment (December 29, 2004). It is well established that in balancing the merits of a defendant's assertion that he has been denied a speedy trial, the court should consider "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (People v Taranovich, 37 NY2d 442, 445; see also, People v Singer, 44 NY2d 241). Applying these guidelines, this Court finds that the 85-day delay between arrest and indictment did not violate defendant's speedy trial rights (see, People v Lesiuk, 81 NY2d 485). That time period preceding the filing of the indictment was utilized in conducting good-faith investigations (People v Allah, 202 AD2d 599, 600, lvs denied 83 NY2d 908, 912; see, People v LaRocca, 172 AD2d 628 [17-year delay between date of murder and commencement of criminal proceedings did not deprive defendant of his constitutional right to speedy trial], lvs denied 78 NY2d 923, 968).

Accordingly, defendant's motion to dismiss on speedy trial grounds is denied in its entirety.

IV.Severance of Counts

Defendant moves to sever the counts of the indictment. The People oppose.

The offenses all involved similar statutory provisions and involved incidents in which proof as to one count would be admissible and relevant to the other. As such, the offenses are properly joined (see, People v Cassidy, __ AD3d __, 791 NYS2d 259; People v Jones, 236 AD2d 846, lv denied 90 NY2d 859). Defendant failed to meet his burden of submitting sufficient evidence of prejudice from the joinder to establish good cause to sever (see, People v Cassidy, supra ). Accordingly, defendant's motion to sever is denied in its entirety.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

April 27, 2005

____________________________________

Hon. Joseph D. Valentino

Justice Supreme Court