| People v Gross |
| 2010 NY Slip Op 09666 [79 AD3d 1660] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gordon Gross,Appellant. (Appeal No. 2.) |
—[*1] Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered April 16,2009. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct againsta child 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 after a jury trial of courseof sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) andendangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant,County Court properly denied his motion to dismiss the indictment on the ground that the timeframe alleged therein was unreasonably excessive (see People v Furlong, 4 AD3d 839, 840-841 [2004], lvdenied 2 NY3d 739 [2004]). The time frames alleged in the indictment were sufficientlyspecific for the crime of course of sexual conduct against a child as well as the continuing crimeof endangering the welfare of a child (see People v Green, 17 AD3d 1076 [2005], lv denied 5NY3d 789 [2005]; Furlong, 4 AD3d at 841). We reject the contention of defendant thatthe People violated Penal Law § 130.75 (2) by prosecuting him on the course of conductcount and that the count therefore should be dismissed. Pursuant to Penal Law § 130.75(2), "[a] person may not be subsequently prosecuted for any other sexual offenseinvolving the same victim unless the other charged offense occurred outside the time periodcharged under this section" (emphasis added). Further, Penal Law § 70.25 (2-e) requiresthat concurrent sentences be imposed "[w]henever a person is convicted of course of sexualconduct against a child in the first degree as defined in section 130.75 . . . and anyother crime under article one hundred thirty committed against the same child and within theperiod charged under section 130.75" (emphasis added). Here, although defendant waspreviously convicted of attempted sexual abuse in the first degree against the same child at issuein this case (People v Gross, 79 AD3d 1652 [2010]), evidence underlying that convictionwas not offered in support of the People's case against defendant on the course of conduct countin this case. As we have held previously with respect to contemporaneously charged sexualoffenses, to interpret Penal Law § 130.75 (2) as prohibiting course of conduct chargesbased on new allegations where a defendant was previously prosecuted for a crime under PenalLaw article 130 against the same child [*2]and within the periodcharged under section 130.75 "would render meaningless the word 'subsequently,' as well assection 70.25 (2-e)" (People vVanlare, 77 AD3d 1313, 1314 [2010]).
Defendant failed to preserve his remaining contentions for our review (CPL 470.05 [2]), andwe decline to exercise our power to review those contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Martoche,Green, Pine and Gorski, JJ.