| People v Devane |
| 2010 NY Slip Op 08260 [78 AD3d 1586] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Travis V. Devane,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Aaron D. Carr of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedFebruary 23, 2009. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree (two counts), endangering the welfare of a child (threecounts), and course of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a jury trial of, inter alia, two countsof course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]),defendant contends that the evidence is legally insufficient to support the conviction. Defendant failed topreserve that contention for our review because his motion for a trial order of dismissal was notspecifically directed at the issue raised on appeal (see People v Gray, 86 NY2d 10, 19[1995]). In any event, we reject that contention (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Defendant also failed to preserve for our review his contention that hisresponses to the police investigator's questions constituted inadmissible prearrest silence and, in anyevent, that contention lacks merit (see Peoplev Solomon, 73 AD3d 1440, 1442 [2010]).
Contrary to the further contention of defendant, County Court properly denied that part of hisomnibus motion seeking an order directing the People to provide more specific dates and time periodswith respect to the charges. "[C]ourse of sexual conduct against a child in the first degree. . . is a continuing offense to which 'the usual requirements of specificity with respect totime do not apply' " (People v Muhina,66 AD3d 1397, 1398 [2009], lv denied 13 NY3d 909 [2009]; see People v Green, 17 AD3d 1076[2005], lv denied 5 NY3d 789 [2005]; People v Palmer, 7 AD3d 472 [2004], lv denied 3 NY3d 710[2004]). "The period[s] . . . alleged in the indictment [were] sufficient to give defendantadequate notice of the charges to enable him to prepare a defense, to ensure that the crimes for whichhe was tried were in fact the crimes with which he was charged, and 'to protect [his] right not to betwice placed in jeopardy for the same conduct' " (People v McLoud, 291 AD2d 867, 868[2002], lv denied 98 NY2d 678 [2002]; see generally [*2]CPL 200.50 [7] [a]; People v Morris, 61 NY2d 290, 293-294[1984]). Finally, we note that, "[i]f defendant[ ] had a need for greater specificity [with respect to thedates of the offenses, his] remedy was a timely request for a bill of particulars" (People v Duell,266 AD2d 649 [1999], lv denied 94 NY2d 918 [2000]). Present—Scudder, P.J.,Smith, Carni, Lindley and Green, JJ.