| People v Roman |
| 2007 NY Slip Op 07088 [43 AD3d 1282] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Orlando O.Roman, Appellant. (Appeal No. 2.) |
—[*1] Orlando O. Roman, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),rendered January 13, 2004. The judgment convicted defendant, after a nonjury trial, of sodomy inthe first degree, rape in the first degree, sodomy in the second degree, rape in the second degree,sexual abuse in the first degree (two counts), attempted sodomy in the first degree and attemptedrape in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reducing the period of postrelease supervision imposed forsexual abuse in the first degree under counts four and nine of the indictment to a period of threeyears and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him of, inter alia, two counts of sexualabuse in the first degree (Penal Law § 130.65 [1]), defendant contends that SupremeCourt's Ventimiglia ruling was improper. We reject that contention. Evidence ofdefendant's prior physical abuse of the victim or other acts of violence with respect to the victimis admissible inasmuch as it is probative of the victim's state of mind and thus is relevant inestablishing that defendant used forcible compulsion (see generally People v Thompson,72 NY2d 410, 415-416 [1988], rearg denied 73 NY2d 870 [1989]; People vAyala, 236 AD2d 802 [1997], lv denied 90 NY2d 855 [1997]). "The introduction ofsuch evidence 'is especially warranted . . . where the crime[s] charged [have]occurred in the privacy of the home and the facts are not easily unraveled' " (People v Riley, 23 AD3d 1077,1077 [2005], lv denied 6 NY3d 817 [2006], quoting People v Henson, 33 NY2d63, 72 [1973]). Defendant failed to preserve for our review his contention in his pro sesupplemental brief concerning the legal sufficiency of the evidence (see People v Hines,97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). We further reject defendant'scontention that the indictment failed to provide a sufficiently specific time frame with respect tocounts one through five. "The indictment must set forth a time interval that reasonably serves thefunction of protecting defendant's constitutional right to be informed of the nature and cause ofthe accusation" (People v Risolo, 261 AD2d 921, 921 [1999] [internal quotation marksomitted]). "Whether [*2]time frames set forth in an indictment aresufficiently specific is to be determined on a case-by-case basis in view of all the relevantcircumstances" (People v Hagenbuch, 267 AD2d 948, 949 [1999], lv denied 95NY2d 797 [2000]). Here, the three-month time frames provided in counts one through four andthe two-month time frame in count five were sufficiently specific in view of the victim's youngage and were "not so large that [they] deprive[d] the defendant of the ability to prepare andpresent a defense" (People vLanfair, 18 AD3d 1032, 1033 [2005], lv denied 5 NY3d 790 [2005]; seePeople v Melfa, 244 AD2d 857, 858 [1997], lv denied 91 NY2d 895 [1998]).
As the People correctly concede, however, the sentence is illegal insofar as the courtimposed a five-year period of postrelease supervision on the two counts of sexual abuse in thefirst degree (see Penal Law § 70.45 [former (2)]). We therefore modify thejudgment by reducing the period of postrelease supervision imposed on those counts to a periodof three years, the maximum allowed (see People v Keith, 26 AD3d 879 [2006], lv denied 6 NY3d835 [2006]).We have reviewed the remaining contentions of defendant in his main brief and pro sesupplemental brief and conclude that they are without merit. Present—Scudder, P.J.,Martoche, Centra, Green and Pine, JJ.