| People v Kossman |
| 2007 NY Slip Op 09968 [46 AD3d 1104] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Allen R.Kossman, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Chemung County (Becker, J.),rendered October 3, 2005, upon a verdict convicting defendant of the crimes of rape in the thirddegree and endangering the welfare of a child.
Following a jury trial, defendant was convicted of statutory rape. Testimony revealed that the16-year-old victim was babysitting the children of Mary Lobdell at Lobdell's home overnightwhile Lobdell and defendant were out partying, which included the consumption of alcohol anddrugs. When Lobdell and defendant returned to Lobdell's home sometime after 8:00 a.m. on themorning of December 18, 2004, Lobdell gave defendant permission to go to sleep in herbedroom and went into the kitchen to make coffee. The victim was upstairs in the bathroomwhen defendant opened the door, took her by the arm and led her into Lobdell's bedroom wherehe proceeded to undress her and have sexual intercourse with her. Lobdell testified that she cameupstairs and—viewing the couple in her bed through the open door—interruptedthem, but then went back downstairs. Defendant then dressed and prepared to leave; when heasked the victim how old she was, she replied that she was 16, and he said, "I must be a pervert."The victim did not report the incident to her mother. Approximately 10 days later, Lobdell sawboth defendant and the victim's brother in a bar and loudly identified defendant as "the guy whoscrewed my baby-sitter." When confronted by her family, the victim told them what happened,and a medical [*2]examination was performed which revealedbruising consistent with the described sexual encounter.
Defendant was sentenced to a prison term of 2 to 4 years for the rape conviction, to runconcurrently with a one-year sentence for his conviction of endangering the welfare of a childarising out of the same incident. Defendant appeals, and we now affirm.
Defendant's first contention on appeal—that the indictment was defective because thevictim's name was not stated—is without merit. A victim's name need not be included inthe indictment so long as sufficient information is included to enable the defendant to formulate adefense and to protect against future double jeopardy violations (see People v Sanchez,84 NY2d 440, 445-446 [1994]; People vWhite, 41 AD3d 1036, 1037 [2007], lv denied 9 NY3d 965 [2007]). Here, theindictment sufficiently identified the lone victim by including her birth date and the date andlocale of the incident, and the bill of particulars provided the exact time and the street address ofLobdell's home (see People vStanley, 23 AD3d 683, 684 [2005], lv denied 6 NY3d 818 [2006]; see alsoPeople v Sanchez, 84 NY2d at 446).
Defendant failed to preserve for appellate review his challenge to the sufficiency of the proofwith respect to the endangering the welfare of a child charge by an objection at trial. In any event,we conclude that the proof adduced at trial was sufficient to support his conviction. "A person isguilty of endangering the welfare of a child when . . . [h]e knowingly acts in amanner likely to be injurious to the physical, mental or moral welfare of a child less thanseventeen years old" (Penal Law § 260.10 [1]). Defendant's assertion that the People wererequired to demonstrate that he knew the victim was under 17 is incorrect; "[n]otwithstanding theuse of the term 'knowingly' in any provision . . . defining an offense in which theage of a child is an element thereof, knowledge by the defendant of the age of such child is not anelement of any such offense" (Penal Law § 15.20 [3]). Further, the victim gaveunchallenged testimony of her age and birth date, providing legally sufficient evidence toestablish that she was less than 17 years old at the time of the crime (see People v Chaffee, 30 AD3d763, 764 [2006], lv denied 7 NY3d 846 [2006]; People v Alford, 287 AD2d884, 885-886 [2001], lv denied 97 NY2d 750 [2002]). We also reject defendant'sunsupported assertion that documentary proof of her age was necessary.
Next, defendant asserts that County Court erred in not replacing a juror sua sponte basedupon implied bias. After the trial was underway, the jury foreperson—anattorney—notified the court that he recognized Lobdell as a former client. The court thenoffered to conduct an in camera conference with defendant to give counsel an opportunity toquestion the juror on the matter and to challenge the juror for cause (see CPL 270.20 [1][c]). The court stated that the juror should be questioned but, noting that it was defendant's trial,left the matter up to defendant, specifically informing defense counsel, "If you want to pursuethis, I will pursue it. If you don't want to pursue it, I will deem it waived on this record, anythinghaving to do with this." Defense counsel responded that the matter should not be pursued.Indeed, defendant expressly waived any objection to the juror's continued service and we rejectdefendant's contention that, despite this express waiver, the court had an obligation to dismiss thejuror on its own motion (see People vBusreth, 35 AD3d 965, 967 [2006], lv denied 8 NY3d 920 [2007]; People vMartinez, 224 AD2d 326, 326-327 [1996], lv denied 88 NY2d 989 [1996]).
Nor are we persuaded that reversal is warranted because the victim's medical report was[*3]improperly admitted into evidence. After defendant initiallyobjected to the admission of the document, the matter was discussed on the record at length and,after confirming that the document had been rendered acceptable to defendant, County Courtadmitted a redacted version of the report without objection. In any event, we find that the medicalrecord was properly received in evidence under the business records exception to the hearsay rulein that it was germane to the medical treatment or diagnosis of the victim and a properfoundation was laid, including a statement from a hospital administrator certifying theauthenticity and business purpose of the report (see CPLR 4518 [a]; People vBailey, 252 AD2d 815, 815-816 [1998], lv denied 92 NY2d 922 [1998]; see alsoPeople v Cratsley, 86 NY2d 81, 89 [1995]).
We further find that defendant's claims of prosecutorial misconduct were not preserved forreview by timely objections at trial and, in any event, when the prosecutor did improperly gooutside the record during summation to define a medical term for the jury, County Courtpromptly reprimanded the People and issued thorough curative instructions. In sum, we discernno evidence on this record that defendant was deprived of a fair trial (see People v Grady, 40 AD3d1368, 1374-1375 [2007], lv denied 9 NY3d 923 [2007]; People v Edwards, 38 AD3d 1133,1134 [2007], lv denied 9 NY3d 864 [2007]; People v Stasiak, 25 AD3d 1025, 1026 [2006]).
Defendant failed to preserve his objections to County Court's charge and allegedimproprieties by the People during voir dire and, in any event, we are not persuaded that anyerror occurred. Finally, of the remaining contentions raised by defendant on appeal, most werenot preserved for our review and, in any event, they are wholly lacking in merit.
Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.