SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 41 THE PEOPLE OF THE STATE OF NEW YORK, Indictment Number 2598/10 -against- . JOHN F. HAGGERTY, JR. and :Decision & Order SPECIAL ELECTIONS OPERATIONS, LLC, Defendant. ZWEIBEL, J.: Defendant’s omnibus motion is disposed of as follows: 1. The motion for inspection and/or dismissal of the Grand Jury minutes is granted to the extent that the Court has examined the Grand Jury minutes in camera and found the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be unimpaired. The Court notes that it has specifically considered the arguments of counsel while inspecting the minutes and has found them to be without merit. Indeed, the issues in the defendant’s motion are relatively straightforward, and disclosure of the Grand Jury minutes is not necessary to their resolution (see CPL S$ 210.30[3]). Accordingly, the motion to dismiss the indictment is denied. As to defendant Special Elections Operations, LLC (“SEO”), the motion for inspection and/or dismissal of the Grand Jury minutes is granted to the extent that the Court has examined the Grand Jury minutes in camera and found the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be unimpaired as to Counts Two through Five of the indictment. The Court notes that it has specifically considered the arguments of counsel while inspecting the minutes and has found them to be without merit. Indeed, the issues in the defendant's motion are relatively straightforward, and disclosure of the Grand Jury minutes is not necessary to their resolution (see CPL § 210.30[31). Accordingly, as to SEO, the motion to dismiss Counts Two through Five of the indictment is denied. However, the evidence of SEO’s involvement in the Grand Larceny in the First Degree as set forth in Count One is legally insufficient.“[A]n indictment is presumed to be based on legal and sufficient evidence” (People v. Bergerson, 17 N.¥.2d 398, 402 [1966]; see also People v. Howell, 3 N.¥.2d 672, 675 [1958]). The Grand Jury may not indict unless the People present evidence establishing a prima facie case of criminal conduct (see People v. Jennings, 69 N.¥.2d 103, 114-115 [1986]; People v. Dunleavy, 41 A.D.2d 717 [1"* Dept.], aff’d. 33 N.¥.2d 573 [1973]) - ” Legally sufficient evidence’ means 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); People v. Manini, 79 N.¥.2d 561, 568 [1992]). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 N.¥.2d 1002 [1975]; People v. Lott, 104 A.D.2d 710 [3* Dept.1984]; People v. Delameter, 96 A.D.2d 629 [3 Dept.1983]), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (see People v. Swamp, 84 N.¥.2d 725, 730 [1995]; People _v. Pelchat, 62 N.¥.2d 97, 105 [1984]; People v. Manini, 79 N.¥.2d, at 568; People v. Jennings, 69 N.¥.2d, at 114-115; People v. Valles, 62 N.Y.2d 36 [1986]). “In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt” (People v. Mayo, 36 N.¥.2d, at 1004). “In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient ‘even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.’ To further illustrate the point the Commission Staff noted that evidence may be ‘legally sufficient’ to support a charge although it does not prove guilt ‘beyond a reasonable doubt,’ and for that matter, although it does not even provide ‘reasonable cause’ to believe that the defendant committed the crime charged. (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10)” (People v. Sabella, 35 N.¥.2d 158, 167 [1974]). A person is guilty of Larceny in the First Degree (Penal Law 2§155.42) when he steals property and the value of the property exceeds one million dollars ($1,000,000). A person commits the crime of larceny when he “steals property,” that is, “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05[1])- Defendants are alleged to have stolen in excess of $1,000,000 dollars from Mayor Bloomberg when defendant Haggerty submitted a proposed budget for ballot security in excess of $1 million dollars, stating that some expenditures had already been made toward implementation of that plan for Mayor Bloomberg’s 2009 campaign although he had not yet spent any funds towards its implementation at the time and when he apparently had no intention of implementing the proposed plan as represented to Mayor Bloomberg’s 2009 campaign and by implicitly misrepresenting the cost of providing ballot security and suggesting that it be done through a donation to the New York State Independence Party (*NYSIP”) “housekeeping” account, which in turn caused such donation to be made and of which defendants were entitled, pursuant to an October 15, 2009 contract between defendants and the NYSIP, to up to $1.1 million dollars for providing ballot security on election day that cost approximately $32,000. Upon SEO’s incorporation on December 3, 2009, over a month after the donation to the NYSIP was made, defendant Haggerty submitted an invoice for $750,000 to the NYSIP on behalf of SEO for services rendered, although the amount was substantially in excess of the amounts actually spent, and received a payment from the NYSIP of $750,000 pursuant to the October contract. Here there is no question that the evidence is legally sufficient as to defendant Haggerty. The problem arises as to his alter-ego, SEO. In this case, the People concede in their response to defendant’s motion, that “[a]t the time the funds were transferred to the NYSIP, the larceny was complete” (People’s October 28, 2010 Memorandum of Law, p. 28). The problem is that a “person” has to commit the crime and SEO was not a person at the time the crime was committed and completed. Penal Law § 10.00(7) defines “person” as “a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or agovernmental instrumentality” (emphasis added). The term “person” is generally used in the definition of offenses to xefer to both the person who is guilty of an offense and the victim of an offense. In addition to its ordinary meaning, human being, it includes, “where appropriate,” various legal entities (Penal Law § 10.00[7]). In this case, the People do not claim that SEO is a human being, an unincorporated association, a partnership or a government or a governmental instrumentality. Thus, SEO must be a public or private corporation at the time of the offense However, according to the People’s papers, the larceny was completed when the funds were transferred to NYSIP on October 30, 2009, more than a month before SEO was incorporated, and therefore, a “person” within the meaning of Penal Law § 10.00(7). The Court notes that the only mention of SEO before its December 2009 incorporation is the October 15, 2009 “consulting agreement” defendant Haggerty allegedly entered into with the NYSIP for the creation and design of a “poll watching/ballot security plan” for the "November 2009 General Election in New York.” This agreement identified Haggerty as the “sole member” of SEO, claimed to be located at 121 State Street in Albany, New York and provided that Haggerty, through SEO, would receive no more than $1.1 million dollars as a supposed fee. The agreement was signed by Haggerty and Thomas Connolly, who was identified as the Vice-Chairman of the NYSIP. Mayor Bloomberg and members of his campaign were unaware of this agreement or of the existence of SEO. According to the People, SEO’s stated address was a sham as SEO never had an office at that address, received no mail, and no one claiming to work for SEO ever performed any work there. Additionally, Haggerty did not open a bank account for SEO until December 9, 2009. No funds were expended from SEO to pay for the Operation on Election Day. However, since a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract (see Rubenstein v. Mayor, 41 A.D.3d 826, 828 [2d Dept. 2007]; 442 Decatur St., LLC v. Spheres Realty, Inc., 14 A.D.3d 535, 536 [2d Dept. 2005]; Farrell v. Housekeeper, 298 A.D.2d 488, 489 [2d Dept. 2002]; 1 83 Holding Corp. v. 183 Lorraine st. Assoc., 251 A.D.2d 386, 386-387 [2d Dept. 1998]). Here, it isundisputed that at the time that the consulting agreement was executed, SEO had not yet filed a certificate of incorporation with the Secretary of State, and thus was not in existence pursuant to Business Corporation Law § 403. It was not until December 3, 2009, that SEO became incorporated, and thus, a “person” in the eyes of the law. By that time, the larceny was completed. Thus, while SEO was a “person” when Haggerty sent an invoice from SEO to NYSIP for “Consultant Fees for November 2009 Election Poll Watcher Plan- $750,000" on December 9, 2009 and received a payment of $750,000 from the NYSIP Housekeeping Account to SEO’s bank account on December 11, 2009, this all occurred after the larceny was completed. Plus, neither the Mayor nor his campaign knew about SEO when the “donation” to the NYSIP was made and therefore, they could not have relied on SEO being the corporation to provide the anticipated ballot security services. Additionally, if the People argue that SEO was a de facto corporation by virtue of defendant Haggerty’s October 2009 consulting agreement with the NYSIP and therefore a person for purposes of the Grand Larceny count, that is a question of fact for the Grand Jury that the People did not raise with them. Clearly, SEO was not a corporation as a matter of law at that time as it was not yet incorporated. However, the People did not provide the definition of a “person” for the Grand Jury and therefore, the Grand Jury did not have an opportunity to decide this issue which the Court also feels is a fatal defect as to SEO and this count. The Court notes this failure to define “person” with respect to the corporation is not fatal as to the other counts as SEO was incorporated by then and therefore, a person as a matter of law. The Court notes that it also does the People no good to argue that SEO, before incorporation, was a sole proprietorship and therefore should be treated as a “person” under the statute. According to Black’s Law Dictionary, a sole proprietorship is ‘a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity” (Black’s Law Dictionary 11398 [7 Ed. 1999]). In Bellis v. United States, 417 U.S. 85 [1974], the United States Supreme Court drew a bright line between organizations which have a recognizable, juridical existence apart from their members, such as corporations and partnerships, and those organizationswhich do not, such as the sole proprietorship (see In_re Nassau County Grand Jury Subpoena Duces Tecum Dated June 24 2003, 4.N.¥.3d 665 [2005]). Based on this, the United States Court of Appeals for the Second Circuit, concluded that a sole proprietorship is not legally distinct from its owner; that it has no existence apart from the sole proprietor and therefore, is not subject to criminal prosecution separate and apart from an individual defendant. Accordingly, the Court having considered the evidence before the Grand Jury in the light most favorable to the People and according the evidence all the appropriate inferences, finds that Count One of the indictment, charging SEO with Grand Larceny in the First Degree, is based on legally insufficient evidence and the motion to dismiss this Count is granted as to SEO. There is no constitutional right to discovery in a criminal case. CPL Article 240 controls what discovery defendant is entitled to receive. “Items not enumerated in Article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated [citations omitted]” (People v. Colavita, 87 N.¥.2d 423, 427 [1996]). Both parties are to be guided by the dictates of CPL Article 240. Defendant's motion for discovery is granted to the extent that the District Attorney has already provided discovery and the People are directed to turn over to defense counsel any and all property and information required to be disclosed pursuant to CPL § 240.20, to the extent that the People have not already done so. If defendant believes that any response to his demand for Discovery is inadequate, he may move to reargue within 10 days of the service of a copy of this Pretrial Decision and Order. The People are directed to preserve all evidence including electronically recorded matter and physical exhibits seized by law enforcement officials or their agents, and all notes, records, memoranda and reports prepared by law enforcement officials or their agents, including all recorded police communications. In all other respects, defendant's motion for discovery and inspection is denied. ‘The Court notes that Court Exhibit 1, introduced by the People at oral argument, includes copies of some of the e-mails between defendant and members of Mayor Bloomberg’s campaignstaff about ballot security, a memoranda from defendant to members of the “Bloomberg for Mayor” campaign, entitled “Election Day/Ballot Security Operation,” and includes proposed budgets for the Election Day Ballot Security, copies of checks allegedly given to poll watchers and a chart of events and a general breakdown of the money trail. This exhibit is responsive to several of defendant’s discovery requests and the People have indicated that they will make available other items requested by defendant. With respect to the branch of the motion in which the defendant requests material, pursuant to Brady v. Maryland, 373 U.S. 83 [1963], the People are reminded of their continuing obligation to make such material available to the defense if and when such material comes into their possession, knowledge, ox control. The People state that no such information is known at this time. The Court accepts the prosecution’s representation and therefore, no further direction from the Court on this issue is necessary. If the People believe that there is some question as to whether a specific piece of evidence is Brady material, they are to provide it to this Court for an in camera inspection. The motion for a Molineux-Ventimiglia hearing is granted and is to be held immediately prior to jury selection. At that time the People are to disclose the prior immoral or criminal acts that they intend to introduce at trial. The defendant is directed to comply with the People’s demand for reciprocal discovery or be precluded as to each item sought. The motion to extend the time to make any appropriate suppression motions and for an Alfinito/Franks hearing after discovery is complete is granted on consent. The motion to reserve his right to make any and all further motions is denied. Defendants move to dismiss the instant indictment in the interest of justice based on the existence of compelling factors that “clearly demonstrat[e] that...prosecution upon such indictment or count would constitute or result in an injustice” (CPL § 210.40[1]; see also CPL § 210.20). Defendant claims that: (1) the alleged crimes had no effect onthe victim which defendants name as “Bloomberg for Mayor, 2009, Inc.” and which the People claim was Michael Bloomberg personally; (2) defendant has spent most of his professional life working for government officials and (3) a felony conviction would prevent defendant from continuing to work in the public sector. The People oppose the motion. For the following reasons, the motion is denied in its entirety. A motion to dismiss in the interest of justice enables the Court as a matter of discretion to dismiss a criminal action in the furtherance of justice and fairness (see People _v. Clayton, 41 A.D.2d 204 [2d Dept. 1973]). The purpose of a motion to dismiss in the interest of justice is to allow justice to prevail over the strict letter of the law so as to prevent a miscarriage of justice (People v. Andrew, 78 A.D.2d 683 [2d Dept. 1980]; CPL 210.40[1][an indictment may be dismissed in furtherance of justice when “such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant...would constitute or result in injustice.”]). The discretionary power to dismiss an indictment in the interest of justice is to be used sparingly and the motion should not be granted unless the facts and circumstances are such that to deny relief would shock the conscience of the Court (see People v. Rickert, 58 N.¥.2d 122 [1983]; People v. Harmon, 181 A.D.2d 34, 36 [1st Dept. 1992]; People v. Debiasi, 160 A.D.2d 952 [2d Dept. 1990]). In entertaining such a motion, the Court must scrutinize the merits of the defendant's application and weigh the respective interests of the defendant, the complainant and the community-at-large (see People v. Belkota, 50 A.D.2d 118 [4th Dept. 1975]; People v. Clayton, 41 A.D.2d, at 208). In deciding a motion to dismiss in the interest of justice, the Court must to the extent applicable examine and consider individually and collectively the following ten factors: (1) seriousness and circumstances of the offense; (2) the extent of harm caused by the offense; (3)the evidence of guilt, whether admissible at trial or not;(4) the history, character and condition of the defendant; (S)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (6) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (7)impact of dismissal on the safety or welfare of the communi ty; (8) impact of dismissal upon the confidence of the public in the criminal justice system, (9)where the Court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and (10) any other relevant factors indicating that a judgment of conviction would serve no useful purpose. The burden of setting forth factors sufficiently compelling to justify dismissal under CPL 210.40 rests squarely on the defendant. Where the defendant does not meet this burden, the Court may summarily deny the motion (People v. Schlessel, 104 A.D.2d 501 [2d Dept. 1984]). Considering these factors, both individually and collectively, set forth in CPL 210.40(1) (a~ 3), this Court is not persuaded that the type of extraordinary circumstances contemplated by the statute exist. As to the seriousness and circumstances of the offense, the instant case is neither rare nor unusual. Defendants were indicted and accused of committing one count of Grand Larceny in the First Degree (Penal Law § 155.42[1]), a class “B” felony offense, one count of Money Laundering in the Second Degree (Penal Law § 470.15[1][b] [ii] [A] [iii]), a class “D” felony offense and three counts of Falsifying Business Records in the First Degree (Penal law 175.10), a class “s” felony offense, arising from defendants alleged scheme to steal over 1.2 million dollars from New York City Mayor Michael Bloomberg by proposing a plan for ballot security for the November 2009 election that called for a contribution of over a million dollars from Mayor Bloomberg to the New York State Independence Party’s Housekeeping Account, the transfer of $750 thousand dollars to defendants pursuant to a contractwith the Independence Party for the purpose of ballot security, the use of a majority of those funds to purchase a house and covering-up the theft by providing copies of checks represented to have been paid to the poll watchers pursuant to the contract with the Independence Party and which were never received by the people named in the checks. Clearly, the crime was serious. As the People argue, it is irrelevant that the victim of the crime is Mayor Bloomberg or his 2009 re- election campaign committee as the law applies to all people regardless of whether they are rich or poor, powerful or powerless. Defendant is not Robin Hood, stealing from the rich and giving to the poor. He concocted this elaborate scheme because he needed the money to buy out his brother’s share of the family home. The bottom line is that defendant sought to enrich himself at Mayor Bloomberg’s expense and got caught when the newspapers started to investigate the Mayor's donation to the Independence Party. As to the extent of harm caused by the offense, contrary to defendants’ claims otherwise, this is not a victimless crime. Clearly Mayor Bloomberg and/or his campaign were harmed by defendants’ actions as he and/or his campaign are out over a million dollars. Also, as the People suggest, the defendants’ actions caused questions to be raised about Mayor Bloomberg’s integrity. “Whether a victim of a crime has made a complaint is of no great relevance when the defendant allegedly has influence over, or has concealed his conduct from, the people or organizations who might have lodged a complaint. In any event, the true gravity of these offenses and the harm they allegedly produced lie not in the injury to a particular victim, but in the impairment of public trust in the election process” (People v. Norman, 5 Misc.3d 1016(A), 798 N.¥.S.2d 712, 2004 WL 262464 [Sup. Ct. Kings Co 2004]). As to the evidence of guilt, whether admissible at trial or not, is overwhelming. At the Grand Jury presentation, the People presented testimony by eyewitnesses, documents and admissions by defendant, as contained in several e-mails, and his failed attempt to cover up his theft. The defenses the defendants now raise to exonerate themselves, or mitigate the seriousness of the crimes with which they are charged, are matters appropriately presented to a jury at trial. As to the history, character and condition of the defendant, without disputing defendant Haggerty's accomplishments, or 10rejecting their significance, his contributions to various public officials in particular and to society in general do not justify dismissal of charges (see People v. Kelley, 141 A.D.2d 764 [2d Dept.1988]["“The mere fact that the defendant may be a police officer or has an exemplary background ... is insufficient to justify the exercise of the court's discretion” to dismiss an indictment charging the defendant with DUI] [citations omitted]; People v. Varela, 106 A.D.2d 339, 340 [1st Dept.1984] [dismissal in interest of justice not warranted based on defendant's “‘exemplary’ background at work, in the Air Force, as a father and as a civic affairs volunteer”); see also People v. Norman, 5 Misc.3d 1016[A]). Specifically, defendant Haggerty points out that he is a 42 year old native New Yorker, with no prior criminal history, and a caring family member. His father was a lawyer and his mother a teacher. He states that he is a Roman Catholic who served as an altar boy and worked in the parish rectory. Defendant also states that he considered becoming a priest at various times in his life. Defendant Haggerty also states that he started in politics in 1988 by working on the campaign of George H.W. Bush and then in 1989 for Republican Mayoral candidate Ronald Lauder. He worked on various other campaigns. Defendant specifically points out that Mayor Bloomberg and his campaign manager Kevin Sheekey asked that he volunteer to help the Mayor’s campaign in 2005 and that he worked on petitions and ballot security, which was conducted by the Republican Party. He adds that he was recruited again to work on Mayor Bloomberg’s 2009 campaign. Defendant Haggerty further adds that he was a public servant for most of his adult life, working for State Comptroller Ned Regan from 1990 to 1993, the Hon. Dennis Vacco in the New York State Attorney General’s Office from 1994 to 1999, the New York State Task Force on election modernization and Governor George Pataki. Unfortunately for defendant, his character does not warrant a dismissal in the furtherance of justice. A lack of a prior criminal conviction and a defendant’s standing in the community do not constitute compelling reasons for dismissal (see People v. Riccelli, 149 A.D.2d 941, 942 [4% Dept. 1989]; People v. Varela, 106 A.D.2d, at 340; People v. Litman, 99 reyA.D.2d 573 [3" Dept. 1984]). Similarly, defendant Haggerty’s expertise “in the workings of elective politics in the State of New York,” who is a “highly sought after consultant,” works against him as it indicates how easy it would be for defendant to commit the same crime again. Indeed, the Court notes that the instant action did not stop defendant from working on the 2010 gubernatorial campaign. As to any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of defendant Haggerty, this Court finds that there has been none. Defendant complained at oral argument that Assistant District Attorney Eric Seidel attempted to speak to his estranged wife and divulged statements defendant made to the People in violation of a “Queen for a Day” agreement that such statements would not be used against him at trial. While the Court believes that it may have been better had the People not attempted to speak to defendant’s wife or to divulge information learned during an interview pursuant to what is known commonly as a “Queen for a Day” agreement, this Court does not find that the District Attorney of New York County or the police have engaged in any misconduct in the investigation and prosecution of this case. Thus, this factor does not compel dismissal on the ground of unfairness to the defendant. [As to the purpose and effect of imposing upon the defendant a sentence authorized for the offense, the purpose of every sentence passed on a criminal offender is directed towards achieving one or more of four basic ends: deterrence, separation, rehabilitation and retribution The major underlying theory behind these sentencing ends is that the fear of possible death, incarceratory punishment or suffering will operate in some way in the minds of the lawbreakers to deter them from committing future criminal acts, thus, resulting in a determinant effect on offender recidivism (Burns, Philosophy of Sentencing [U.S. District Court, Portland, Oregon]; The National Judicial College, “Sentencing”, ABA at University of Nevada, Ch. 1, at 1-5 [September 1978] as cited in People v. Vecchio, 139 Misc.2d 165, 169 [1987]). Considering, individually and collectively, the “four basic ends” to sentencing, defendant faces a range of sentences up 12to a maximum sentence of twenty-five years incarceration on the top count. The deterrent value in the possible maximum sentence is obvious. The retribution end is also obvious in the loss of defendant’s reputation upon which he clearly places much import. The Court does not believe rehabilitation is relevant under the facts of this case. Finally, there is a possibility of restitution or payment of fines because of the money that could be generated from the sale of the house which was purchased with the stolen funds. Additionally, in considering the purpose and effect of imposing a sentence upon defendant, the State’s general interest in imposing the authorized sentence is obvious; the citizens of New York have an interest in having a guilty defendant sentenced for grand larceny, a very serious offense. The State's legitimate purpose is to deter citizens from stealing property from others As to the impact of dismissal on the safety or welfare of the community, this Court does not believe that a dismissal in this case will have any impact one way or the other As to the impact of dismissal upon the confidence of the public in the criminal justice system, the Court believes that dismissal will have a negative impact. Given defendant’s standing as a former public servant, prosecution of a well known official for allegedly larcenous conduct and what basically amounts to an abuse of the election process in this case can serve as a reminder that no one is above the law and dismissal of the indictment under these circumstances would seriously undermine “the confidence of the public in the criminal justice system.” This is particularly so as defendant continues to be involved in politics from which conduct, such as that charged in this indictment, if proven to have occurred and to be criminal, could be repeated. Finally, defendant Haggerty has failed to present “any other relevant fact indicating that a judgment of conviction would serve no useful purpose.” The Court has evaluated the merits of defendant Haggerty’s arguments, as well as the applicable factors enumerated in PL 13210.40. Taken collectively, the grounds that are relevant in the consideration of the defendant’s motion prove to be insufficient to rise to the level required for the granting of a motion to dismiss in the interest of justice (see CPL 210.40; People v. Clayton, 41 A.D.2d, at 204). What has been clearly demonstrated is that the offense with which defendant is charged is a serious and harmful one and that the criteria prescribed in CPL 210.40(1) indicates that dismissal in furtherance of justice is inappropriate. Accordingly, the motion to dismiss in the interest of justice is denied. 9. As to defendant’s demand for a Bill of Particulars, the People have responded in writing to the defendant's demand for a Bill of Particulars. “The sole function of a bill of particulars is to clarify a pleading, in this instance, the indictment (see People v. Davis, 41 N.¥.2d 678, 679-680 [1977]). At the outset, the Court notes that although stated as requests for relief in the Defendants’ Notice of Motion, the defendants fail to set forth any allegations that they timely served a demand for a bill of particulars, or that the People have failed to respond to any such demands in accordance with CPL 200.95. In any event, except as otherwise indicated below, the motion for a Bill of Particulars is granted to the extent supplied by the People except as to those items the People are directed to file a further response to below. The Court notes that this was not a bare bones indictment and that the indictment together with the People's response to defendants’ omnibus motion and the discovery material provided to defendants give them more than adequate notice of the charges against them. Additionally, the Court notes that the prosecution is not required to include evidentiary material in a bill of particulars including the identity of witnesses (CPL 200.95 [1]; People v Davis, 41 N¥2d 678, 679-680; see People v. Kyoung Ja Choi, 259 A.D.2d 423 [1 Dept. 1999], lv. denied 93 N.¥.2d 1021 [1999]; People v. Contento, 146 A.D.2d 959, 961 [3rd Dept. 1989]; People v. Green, 83 Misc.2d 583, 596 [Crim. Ct. N.¥.Co. 1975]). Finally, the Court notes that with respect to defendants’ request for the “nature of the other crime they intended to commit” in connection with falsifying business records, the People are not required to establish the particular crime the defendant intended to commit and therefore, do not need to 14provide this information in a Bill of Particulars(see e.g. Beople v. Mackey, 49 N.¥.2d 274 [1980}). However, CPL 200,95 specifically requires the People to inform defendant Whether he is being accused of acting as a principal ox an accomplice or both. Accordingly, the Court is directing the People to respond specifically to defendants’ requests for that information in their Bill of Particulars as encompassed in paragraphs 12 I 8; 12 II W; and 12 III BB as required by CPL 200,95. Dated: March 14, 2011 15