| People v Spencer |
| 2014 NY Slip Op 05258 [119 AD3d 1411] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vLepolia J. Spencer, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Lepolia J. Spencer, defendant-appellant pro se.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered January 21, 2010. The judgment convicted defendant, upon a jury verdict, ofrape in the second degree (three counts), criminal sexual act in the second degree (fivecounts), course of sexual conduct against a child in the first degree, rape in the thirddegree (two counts), criminal sexual act in the third degree (two counts) and endangeringthe welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reversing that partconvicting defendant of endangering the welfare of a child under count 15 of theindictment and dismissing that count of the indictment, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of one count each of course of sexual conduct against a child in the first degree(Penal Law § 130.75 [1] [b]) and endangering the welfare of a child(§ 260.10 [1]), three counts of rape in the second degree(§ 130.30 [1]; former § 130.30), five counts of criminal sexualact in the second degree (§ 130.45 [1]; former § 130.45), andtwo counts each of rape in the third degree (§ 130.25 [2]) and criminalsexual act in the third degree (§ 130.40 [2]). As the People correctlyconcede, the count charging endangering the welfare of a child should be dismissed astime-barred "inasmuch as the acts charged therein occurred more than two years prior tothe filing of the indictment" (People v Wildrick, 83 AD3d 1455, 1456 [2011], lvdenied 17 NY3d 803 [2011]; see CPL 30.10 [2] [c]; Penal Law§ 260.10). Although defendant failed to preserve that contention for ourreview, we nevertheless exercise our power to address it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]; Wildrick, 83 AD3d at 1456),and we modify the judgment accordingly.
We reject defendant's further contention that the counts of the indictment chargingsexual offenses, with the exception of course of sexual conduct against a child in the firstdegree, were rendered duplicitous by the victim's trial testimony. The first six counts ofthe indictment charged defendant with various sex offenses arising from two incidentsthat occurred during the summer of 2000 at defendant's then residence, located in Utica.The victim testified in detail about those two incidents, during which defendantsodomized and raped her, and she then testified that the abuse "became a regular thing,"happening several times a week until she left home at age 17, in 2006. The victim'stestimony about the abuse continuing regularly until 2006 was relevant to the charge ofcourse of sexual conduct against a child in the first degree, and we conclude that, in lightof the victim's specific and detailed testimony about the first two incidents, there is noreasonable possibility that the jurors may have convicted defendant of any of the first sixcounts based on the general and vague testimony that followed (see People v Tomlinson, 53AD3d 798, 799 [2008], lv denied 11 NY3d 835 [2008]; People v Weber, 25 AD3d919, 922 [2006], lv denied 6 NY3d 839 [2006]; cf. People v Bracewell, 34AD3d 1197, 1198 [2006]). We note that it was clear from the prosecutor'ssummation that the first six counts related to the victim's detailed testimony about the twoincidents that occurred in the summer of 2000 (see People v Ramirez, 99 AD3d 1241, 1242 [2012], lvdenied 20 NY3d 988 [2012]). For similar reasons, we conclude that counts eight,nine and 11 through 14 were not rendered duplicitous by the victim's testimony thatcertain previously described sexual acts recurred on a weekly basis.
We reject defendant's contention that the time periods specified for counts onethrough six, eight, nine, and 11 through 14 were too broad to permit him to prepare adefense. CPL 200.50 (6) requires that an indictment contain an allegation "that theoffense charged therein was committed on, or on or about, a designated date, or during adesignated period of time." As long as the period of time is not an essential element ofthe charged crime, a "reasonable approximation" is sufficient to comply with the statute(People v Morris, 61 NY2d 290, 292 [1984]), especially where the crime wascommitted against a young victim, and was not immediately reported (see id. at295-297; People v Case, 29AD3d 706, 706-707 [2006], lv denied 7 NY3d 786 [2006]; People v Oglesby, 12 AD3d857, 858-859 [2004], lv denied 5 NY3d 792 [2005]). Here, time is not anessential element of the crimes charged, and considering that the victim was a minor atthe time that the crimes were committed and defendant was not arrested or indicted untilseveral years later, we conclude that the use of a three-month "seasonal" period in theindictment was sufficiently specific (see e.g. People v LaPage, 53 AD3d 693, 694-695[2008]; People v Dickens,48 AD3d 1034, 1035 [2008], lv denied 10 NY3d 958 [2008]; People v Furlong, 4 AD3d839, 840-841 [2004], lv denied 2 NY3d 739 [2004]).
Defendant further contends that the court erred in allowing several prosecutionwitnesses, including the victim, to testify regarding his use of marihuana and crackcocaine. Because defendant did not object to such testimony, however, his contention isunpreserved for our review (see CPL 470.05 [2]; People v Marmulstein, 6AD3d 879, 881 [2004], lv denied 3 NY3d 660 [2004]; People vMediak, 217 AD2d 961, 962 [1995], lv denied 87 NY2d 848 [1995]), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that the evidence islegally insufficient to support the conviction of counts seven through nine, and 11through 14. In any event, viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is avalid line of reasoning and permissible inferences to support the jury's finding thatdefendant committed the crimes of which he was convicted based on the evidencepresented at trial (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).With respect to the counts in question, the victim testified that defendant had "sexualintercourse" and "oral sex" with her. Although defendant is correct that the victim did notspecify what she meant by those terms, we note that she previously defined those termsduring her testimony regarding counts one through six. We thus conclude that thevictim's initial description of what she meant by the terms "oral sex" and "sexualintercourse" (see Penal Law § 130.00 [1], [2] [a]), combined withthe ordinary meanings of those terms, provided sufficient evidence to support defendant'sconviction of the counts in question (see People v Wyre, 97 AD3d 976, 977 [2012], lvdenied 19 NY3d 1030 [2012]; People v Workman, 56 AD3d 1155, 1155-1156 [2008],lv denied 12 NY3d 789 [2009]; cf. People v Carroll, 95 NY2d 375, 383-384[2000]).
Contrary to defendant's further contention, County Court did not err in admitting inevidence an undated letter written by defendant to the victim. In the letter, whichcontains graphic sexual language, defendant berated the victim for having sexualrelations with other men and stated that, as punishment, he "might as well prostitute yourass out." The letter was admissible as an admission with respect to the count ofendangering the welfare of a child, which was based, at least in part, on the victim'stestimony that defendant agreed to allow a friend of his to have sex with her in return fordrugs (see People v Swart, 273 AD2d 503, 505 [2000], lv denied 95NY2d 908 [2000]). Moreover, the People laid a proper foundation for the admission ofthe letter inasmuch as the victim and her mother testified that they are familiar withdefendant's handwriting and that the letter appeared to have been written by him (seePeople v Clark, 122 AD2d 389, 390 [1986], lv denied 68 NY2d 913[1986]).
We have reviewed defendant's remaining contentions in his main and pro sesupplemental briefs and conclude that they lack merit. Present—Scudder, P.J.,Centra, Carni, Lindley and DeJoseph, JJ.