People v. Conte

• Decision Date: 16 March 1990
• Citation: 159 A.D.2d 993,552 N.Y.S.2d 743
• Parties: PEOPLE of the State of New York, Respondent, v. Frank A. CONTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 743

552 N.Y.S.2d 743

159 A.D.2d 993

PEOPLE of the State of New York, Respondent, v. Frank A. CONTE, Appellant.

Supreme Court, Appellate Division Fourth Department.

March 16, 1990.

Michael Forsyth, Syracuse, for appellant.

Barry M. Donalty by Timothy Fitzgerald, Utica, for respondent.

Before DOERR, J.P., and BOOMER, GREEN, BALIO and DAVIS, JJ.

MEMORANDUM:

Counts one, two, and three of the indictment, charging defendant with sodomy in the first degree, sodomy in the third degree, and endangering the welfare of a child, as amplified by the amended bill of particulars, are not duplicitous. The indictment alleged only one incident of sodomy under counts one and two. Although inartfully drawn, the amended bill of particulars did not allege otherwise and the evidence at the trial was confined to one incident of sodomy.

The offense of endangering the welfare of a child may be committed by multiple acts and may be a continuing offense committed over a period of time (People v. Keindl, 68 N.Y.2d 410, 421, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539). Thus, the allegations in the amended bill of particulars and the proof that the offense occurred in two different locations did not make count three duplicitous.

The offense of unlawfully dealing with a child by giving alcoholic beverages to a child, unlike the offense of endangering the welfare of a child, contemplates one act or, at most, a series of acts at one time and place. Thus, count four of the indictment is duplicitous because, as amplified by the amended bill of particulars, it alleged, and the evidence at the trial indicated, the commission of separate acts at two locations.

Having failed to object to the verdict on count five as repugnant before the jury was discharged, defendant did not preserve the issue for review (see, People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280).

The error, if any, in admitting into evidence defendant's statement made at the time of his arrest, was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Although the search warrant was overbroad in authorizing the police to seize "other contraband", the warrant may be read as though that clause is stricken (see, People v. Hansen, 38 N.Y.2d 17, 377 N.Y.S.2d 461, 339 N.E.2d 873). Thus read, the search and seizure of the marihuana was legal. The seizure of the scales, playing cards, and tweezers, however, was illegal and those items should have been suppressed. The error, however, was harmless and does not require the reversal of...