People v. Davenport

• Decision Date: 15 April 2002
• Docket Number: 2,98-06057
• Parties: The People, etc., respondent, v Clint Davenport, appellant. (Ind./97 and 738/98) 1998-06057 1998-06066 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

The People, etc., respondent v Clint Davenport, appellant.

(Ind. Nos. 1476/97 and 738/98)

1998-06057

1998-06066

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - March 18, 2002

Decided on April 15, 2002

Edward M. Gould, Islip, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Sean F. Conroy and Brian J. Counihan of counsel), for respondent.

DECISION & ORDER

SANDRA J. FEUERSTEIN, J.P.

GABRIEL M. KRAUSMAN

GLORIA GOLDSTEIN

THOMAS A. ADAMS, JJ.

Appeal by the defendant from two judgments of the County Court, Suffolk County (Weber, J.), both rendered June 19, 1998, convicting him of sodomy in the first degree (two counts) and sexual abuse in the first degree (three counts) under Indictment No. 1476/97, and sodomy in the third degree and endangering the welfare of a child under Indictment No. 738/98, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant contends that the indictments were defective because the People did not seek an adjournment of the pending criminal court proceeding before presenting the case to the first Grand Jury. We disagree. CPL 170.20 provides, inter alia, that "[a]t any time before the entry of a plea of guilty to or commencement of a trial of an accusatory instrument * * * the district attorney may apply for an adjournment of the proceedings in the local criminal court upon the ground that he intends to present the misdemeanor charge * * * to a grand jury. * * * In such case, the local criminal court must adjourn the proceedings to a date which affords the district attorney reasonable opportunity to pursue such action." Although CPL 170.20 establishes a procedure which allows the People to obtain a stay of criminal court proceedings while a case is presented to the Grand Jury, it does not require that they seek such a stay as a condition precedent to presenting the case (see People v Bouyea, 172 Misc.2d 835; see also People v Miterko, 186 Misc.2d 337). Accordingly, there is no basis for dismissal of the indictments.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish that the defendant committed the crimes of sodomy in the first degree and sexual abuse in the first degree by means of forcible compulsion (see Penal Law §§ 130.50[1], 130.65[1]; People v Thompson, 72 N.Y.2d 410; People v Jackson, __ A.D.2d __ [3d Dept, Jan. 10, 2002]). The evidence was also legally sufficient to support the defendant's conviction of one additional count of sodomy in the first degree, and two additional counts of sexual abuse in the first degree, which were predicated upon the...