| People v Osborne |
| 2009 NY Slip Op 04825 [63 AD3d 1707] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William F.Osborne, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Tracey A. Brunecz of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), renderedNovember 20, 2006. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, criminal sexual act in the first degree, and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofrape in the first degree (Penal Law § 130.35 [4]), criminal sexual act in the first degree(§ 130.50 [4]), and endangering the welfare of a child (§ 260.10 [1]). Defendantfailed to preserve for our review his contention that County Court erred in admitting in evidencea handwritten note of the victim that implicated defendant in the commission of a criminal sexualact (see CPL 470.05 [2]). In any event, although we agree with defendant that the noteimpermissibly bolstered the victim's testimony and that the court therefore erred in admitting itin evidence, we conclude that the error is harmless (see generally People v Tejeda, 73NY2d 958, 960 [1989]; People vAllah, 57 AD3d 1115, 1118 [2008], lv denied 12 NY3d 780 [2009]).
Defendant failed to preserve for our review his further contention that the People changedthe theory of the prosecution on the count charging him with endangering the welfare of a childby presenting evidence of an act that was not presented to the grand jury (see generally People v Bracewell, 34AD3d 1197 [2006]). In any event, that contention lacks merit. The indictment chargeddefendant in a single count with the commission of multiple instances of endangering the welfareof a child committed during a specified period of time (see People v Kuykendall, 43 AD3d 493 [2007], lv denied 9NY3d 1007 [2007]; cf. People vJacobs, 52 AD3d 1182 [2008]), and any "slight variation" in the theory of theprosecution with respect to that count based on the testimony concerning the act in questioncannot be said to have affected defendant's liability for the crime charged (People v Wright, 16 AD3d 1173,1174 [2005], lv denied 5 NY3d 771 [2005]).
We further reject the contention of defendant that the court's response to the second jury notewas inappropriate. While the court's response went beyond the proposed response discussed withthe prosecutor and defense counsel, it did not interject substantive issues outside the scope of thejury's inquiry (see People v Jackson, 296 AD2d 658, 660 [2002], lv denied 98NY2d 768 [2002]), it correctly stated the law (see People v Jackson, 52 AD3d 1052, 1054 [2008], lv denied11 NY3d [*2]789 [2008]), and it did not prejudice defendant(see People v Barboza, 24 AD3d460, 461 [2005], lv denied 6 NY3d 773 [2006]). Finally, we conclude that defendantwas not denied effective assistance of counsel (see generally People v Baldi, 54 NY2d137, 147 [1981]). Present—Scudder, P.J., Martoche, Fahey, Carni and Pine, JJ.