Jill Paperno’s post on alibi cases (see), has provoked these additional thoughts about the subject by two of her colleagues at he Monroe County Public Defender’s Office:
Comments on SOME THOUGHTS ON ALIBI CASES
By David Juergens
Assistant Monroe County Public Defender
CPL 250.20 (1) requires the People to serve their demand for notice of alibi “not more than twenty days after arraignment.” Often, the People attempt to satisfy this statutory requirement by adding a boilerplate paragraph to their CPL 710 notice (attached to the indictment).
A defense attorney may wish to challenge the facial sufficiency of the People’s demand for notice of alibi, arguing that the People’s “demand” is defective on its face for lack of specificity. Typically, no date, time or place for the alleged crime(s) will be set forth in the “demand” paragraph itself. Therefore, to the extent that the indictment itself also lacks specificity as to date, time or place, the People have failed to provide facts that are essential for the establishment of an alibi defense (i.e., “that at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime” (CPL 250.20 [1]).
If the People supply the missing information in a Bill of Particulars, you can argue that the People must nevertheless renew their demand for notice of alibi (which triggers a new eight-day service period for the defense). If the Bill of Particulars is served more than twenty days after arraignment, the demand for notice of alibi (even if renewed) is untimely. Whenever the People argue for strict compliance with the requirements of CPL 250.20, it should be argued, if possible, that the People themselves did not comply with the statute. Stated simply, boilerplate demands are insufficient to trigger the defendant’s statutory obligation to provide the People with a list of alibi witnesses.
The lack of specificity problem becomes even more acute where the defendant would admit to being at the crime scene at some point during the date(s) alleged in the indictment. For example, where the People specify the date, but not the time for an alleged crime, and the defendant undoubtedly was present at the scene of the crime on the same date, the defendant is not in a position to serve a specific “notice of alibi’ in response to the People’s vague demand. If the defendant was present at the scene of the crime during the only time period specified by the prosecution (a certain date), he cannot be expected to file a “notice of alibi.”
By James Eckert
Assistant Monroe County Public Defender
If the prosecution was permitted to demand an alibi for all the time covered by their non-specific allegations, they would benefit from their own vagueness. On the other hand, if the defendant were excused from serving a notice of alibi if he was at the scene of the crime during some part of the DA’s vast time period, then the incentives would be properly balanced, it seems to me. If you want a notice of alibi for when something took place, tell us when it took place. You can’t say “March, 2007” and expect the defendant to account for his whereabouts for the entire month, and then preclude him from putting on alibi evidence for a specific date and time during March when that date and time become important.
If the prosecution cannot specify when their crime took place, they have to take the bad with the good. If a defendant was present at the scene of the crime during any part of the People’s allegation, then I think he ought to be relieved from serving a notice of alibi (serving a notice is much safer, I’d make this argument when you find yourself in extremis).
