| People v Luscomb |
| 2009 NY Slip Op 10001 [68 AD3d 1548] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jesse R.Luscomb, Appellant. |
—[*1]
Garry, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.),rendered February 11, 2008, upon a verdict convicting defendant of the crimes of rape in thethird degree, criminal sale of marihuana in the second degree and unlawfully dealing with achild.
In 2007, defendant was charged in a five-count indictment with rape in the first degree, rapein the third degree, endangering the welfare of a child, unlawfully dealing with a child, andcriminal sale of marihuana in the second degree. The charges arose out of an incident in 2004 inwhich defendant, then 24, allegedly had sexual intercourse with the 15-year-old victim aftergiving her alcohol and marihuana. The victim, who was living with a 20-year-old friend(hereinafter the housemate) at the time, did not report the incident until 2007, after she allegedlyheard about another similar occurrence.
By jury verdict, defendant was acquitted of rape in the first degree and convicted of theremaining counts. County Court found that defendant's conviction for endangering the welfare ofa child merged with the conviction for criminal sale of marihuana in the second degree. Itimposed a fine for the conviction for unlawfully dealing with a child, and sentenced defendant toconsecutive prison terms of 1
Defendant initially contends that the evidence was legally insufficient to support his [*2]conviction for criminal sale of marihuana in the second degree.This claim was raised for the first time on appeal and therefore was not preserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; Peoplev Littebrant, 55 AD3d 1151, 1154 [2008], lv denied 12 NY3d 818 [2009]). It is, inany event, without merit, since no expert testimony was required to prove that the substance inquestion was marihuana (see People v Lane, 47 AD3d 1125, 1126-1127 [2008], lvdenied 10 NY3d 866 [2008]; People v Maidana, 285 AD2d 669, 672 [2001]), and noproof of the marihuana's weight was required (see Penal Law § 221.50).
Defendant further contends that he was substantially prejudiced by the variance in timebetween the indictment and the proof at trial. The victim initially indicated that the incident tookplace in late 2003 or early 2004, but the indictment charged that it occurred "in or about the latesummer of 2004," and the victim testified at trial that it occurred about two weeks before amedical appointment in late October 2004. Where, as here, "time is not an essential element ofany of the charged crimes, an approximation of time is satisfactory as long as the time interval issufficient to enable a defendant to prepare a defense" (People v Dunton, 30 AD3d 828,829 [2006], lv denied 7 NY3d 847 [2006] [internal quotation marks and citationomitted]; see People v Watt, 81 NY2d 772, 774 [1993]). Defendant demonstrated noprejudice resulting from the variance between the dates given in the indictment and at trial, since"his defense was a categorical denial of any abuse or sexual contact" (People v Porlier,55 AD3d 1059, 1060 [2008]). Further, in spite of the victim's uncertainty as to the exact date, shetestified with specificity about a single encounter with defendant, thus providing him withsufficient information as to date, time and place to permit him to prepare a meaningful defense(see People v LaPage, 53 AD3d 693, 695 [2008]; People v Weber, 25 AD3d 919,922 [2006], lv denied 6 NY3d 839 [2006]). Thus, no violation of CPL 200.50 (6)occurred. Defendant's related claim that the charges were duplicitous was not preserved forreview (see People v Dalton, 27 AD3d 779, 781 [2006], lvs denied 7 NY3d 754,811 [2006]), and fails in any event. There was no possible confusion with regard to "theparticular act [as to each count] as to which the jury reached a unanimous verdict" (People vThomas, 21 AD3d 643, 645 [2005], lv denied 6 NY3d 759 [2005]).
We find no merit in defendant's argument that County Court erred in precluding him fromintroducing evidence at trial of the victim's sexual conduct (see CPL 60.42). " '[S]uchevidence is inadmissible unless it falls within one of the statutory exceptions' " (People vAlteri, 49 AD3d 918, 920 [2008], quoting People v Thompson, 27 AD3d 888, 890[2006], lv denied 6 NY3d 853 [2006]). Defendant argues that he should have beenpermitted to introduce evidence that the victim was treated shortly after the alleged rape for asexually-transmitted disease because the evidence allegedly would have been exculpatory in thathe could have proven that he did not suffer from the disease in question. However, the statutoryexception permitting introduction of such evidence was not applicable (see CPL 60.42[4]). The People specifically advised the court before trial that they had no intention ofintroducing evidence that defendant infected the victim with any disease, and they did not, infact, do so (see People v White, 261 AD2d 653, 655 [1999], lv denied 93 NY2d1029 [1999]). Records of the victim's October 2004 medical treatment were not used at trial asproof related to her health or defendant's culpability, but solely for the limited purpose ofrefreshing her recollection as to the time of the occurrence. Contrary to defendant's claim, proofthat he was not responsible for the alleged infection would not have been logically probative asto whether he committed the charged offense. County Court did not abuse its discretion inrefusing to admit the challenged evidence, and no violation of defendant's constitutional rights ofconfrontation took place (see US Const Amend VI; NY Const, art I, § 6).[*3]
Defendant's claim that his convictions were based onuncorroborated accomplice testimony in violation of CPL 60.22 (1) was not preserved forappellate review and is, in any event, entirely without merit (see People v Gilbo, 52AD3d 952, 954 [2008], lv denied 11 NY3d 788 [2008]; People v Hines, 24AD3d 964, 965 [2005], lv denied 6 NY3d 834 [2006]; People v Gorham, 17AD3d 858, 859 [2005]).
Finally, contrary to defendant's claim, concurrent sentences were not required by Penal Law§ 70.25 (2), because defendant's convictions arose out of "separate and distinct acts"(People v Salcedo, 92 NY2d 1019, 1021 [1998]; see People v Collins, 56 AD3d809, 811 [2008], lv denied 11 NY3d 923 [2009]). Further, County Court did not violatedefendant's constitutional right to freedom of speech by basing his sentence, in part, on hisstatement at sentencing (see CPL 380.50 [1]). The purpose of the opportunity given todefendants to speak at sentencing is to permit them "to convey information relevant to thesentence to be imposed" (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book11A, CPL 380.50, at 283). In addition to the victim's vulnerability to exploitation and the otherfactors considered by the court, it properly took into account defendant's challenge at sentencingto the validity of the verdict and his failure to express remorse as such relevant information(see People v Smith, 41 AD3d 964, 967 [2007], lv denied 9 NY3d 881 [2007]).The court did not err in imposing defendant's sentences.
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.