People v. Bolden

• Decision Date: 03 June 1993
• Citation: People v. Bolden, 598 N.Y.S.2d 603, 194 A.D.2d 834 (N.Y. App. Div. 1993)
• Parties: The PEOPLE of the State of New York, Respondent, v. Barry A. BOLDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 603

598 N.Y.S.2d 603

194 A.D.2d 834

The PEOPLE of the State of New York, Respondent, v. Barry A. BOLDEN, Appellant.

Supreme Court, Appellate Division Third Department.

June 3, 1993.

Bruce A. Androphy, Slingerlands, for appellant.

Robert Winn, Dist. Atty. (NancyLynn S. Ferrini, of counsel), Hudson Falls, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered May 15, 1992, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts) and attempted grand larceny in the third degree.

After a jury trial defendant was convicted on all counts of an indictment which charged him with three counts of sexual abuse in the first degree, criminal possession of a forged instrument in the second degree and attempted grand larceny in the third degree. County Court granted defendant's motion pursuant to CPL 440.10(1)(a) to vacate the conviction of criminal possession of a forged instrument in the second degree. Defendant was sentenced as a second felony offender to indeterminate prison terms of 3 1/2 to 7 years on each count of sexual abuse in the first degree and 2 to 4 years for the attempted grand larceny in the third degree conviction, all to run consecutively.

Defendant first contends that the indictment is defective because it did not provide sufficient specificity as to the time period alleged for each count of sexual abuse in the first degree. The indictment alleges that two of the incidents, which involved a girl who was then 10 years old, occurred "during the month of June, 1989" and "during the spring of 1989". The third incident, involving a boy who was then six years old, was alleged to have occurred "during the summer of 1989". When, as in this case, time is not an essential element of the crime, the indictment may allege the time in approximate terms provided that sufficient specificity to adequately prepare a defense has been afforded to defendant by the indictment and the bill of particulars (see, People v. Morris, 61 N.Y.2d 290, 295, 473 N.Y.S.2d 769, 461 N.E.2d 1256). Among the factors to be considered on the issue of sufficient specificity are the span of time set forth, the knowledge the People have or should have of the exact date, the age and intelligence of the victim and other witnesses, the nature of the offense and the surrounding circumstances, id., at 295-296, 473 N.Y.S.2d 769, 461 N.E.2d 1256. Considering all of these factors here, we conclude that the indictment was sufficient (see, People v. Glover, 185 A.D.2d 458, 460, 185 A.D.2d 458, 585 N.Y.S.2d 873; People v. Dunavin, 173 A.D.2d 1032, 1034, 570 N.Y.S.2d 369, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417).

Defendant next contends that evidence adduced at trial was not legally sufficient to establish his guilt. As to the sexual abuse charges, defendant's argument is premised largely upon the theory that corroboration of the victim's testimony was required pursuant to Penal Law § 130.16. In 1984, however, the Legislature amended Penal Law § 130.16 so that corroboration is no longer required in cases where, as here, the incapacity to consent results solely from the victim's age (L.1984, ch. 89, § 1; see, People v. Hudy, 73 N.Y.2d 40, 48, 538 N.Y.S.2d 197, 535 N.E.2d 250). Defendant is also incorrect in his claim that the People failed to provide any evidence that the girl victim was under the age of 11 at the time of the acts alleged in counts one and two of the indictment. The girl's testimony regarding her date of birth was sufficient to establish that she was under the age of 11 at the relevant times (see, People v. Bessette, 169 A.D.2d 876, 877, 564 N.Y.S.2d 605, lv. denied 77 N.Y.2d 992, 571 N.Y.S.2d 918, 575 N.E.2d 404). County Court examined the victims and determined that they understood the nature of an oath (see, CPL 60.20). Their sworn testimony established all of the elements of sexual abuse in the first degree. Any minor inconsistencies in their testimony and the testimony of other witnesses presented questions of credibility, and we will not disturb the jury's resolution of those questions unless it is clearly unsupported by the record (see, People v. Dunavin, supra, 173 A.D.2d at 1033-1034, 570 N.Y.S.2d 369). Viewed in the light most favorable to the People the evidence is legally sufficient, and we also find that the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

As to the conviction of attempted grand larceny in the third degree, we reach a contrary conclusion. According to the indictment, defendant attempted to steal more than $3,000 in cash from Colleen Bolden by attempting to obtain a mortgage on property solely owned by Colleen Bolden without her consent. The People presented evidence from which the jury could find that defendant telephoned an independent mortgage broker to apply for a home equity loan to be secured by a mortgage on property that defendant claimed to own...