People v. Green

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Green, 17 AD3d 1076, 793 N.Y.S.2d 790, 2005 NY Slip Op 3437 (N.Y. App. Div. 2005)
• Decision Date: 29 April 2005
• Docket Number: KA 03-02473.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GERALD GREEN, Appellant.

17 A.D.3d 1076

793 N.Y.S.2d 790

2005 NY Slip Op 03437

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GERALD GREEN, Appellant.

KA 03-02473.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 29, 2005.

Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered November 17, 2003. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him, upon a jury verdict, of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [a]). Because defendant was charged with a course of conduct crime, the usual requirements of specificity with respect to time do not apply (see People v Colf, 286 AD2d 888, 888-889 [2001], lv denied 97 NY2d 655 [2001]), and the 36-month time period covered by the indictment is reasonable (see People v Palmer, 7 AD3d 472 [2004], lv denied 3 NY3d 710 [2004]). The indictment is not duplicitous (see People v Chilson, 285 AD2d 733, 734 [2001], lv denied 97 NY2d 640, 752 [2001]). County Court properly exercised its discretion in precluding certain collateral evidence because it was too remote (see People v Bott, 234 AD2d 625, 626-627 [1996], lv denied 89 NY2d 1009 [1997]). Defendant's contention that the indictment is fatally defective because it failed to allege that defendant was not married to the victim is not preserved for our review (see CPL 470.05 [2]). In any event, because the indictment specifically refers to the applicable section of the Penal Law, the indictment is not jurisdictionally defective (see People v Shanley, 15 AD3d 921 [2005]). Although defendant moved to dismiss the indictment as defective, thereby preserving for our review the issue of the legal sufficiency of the evidence before the grand jury, "[f]ollowing a conviction upon legally sufficient evidence, that issue is not reviewable" (People v Miles, 236 AD2d 786, 787 [1997], lv denied 90 NY2d 861 [1997]). In any event, the prosecutor properly defined the alleged crime to the grand jury, including the affirmative defense set forth in Penal Law § 130.10 (4), and the evidence before the grand jury established a prima facie case with respect to the alleged crime (see generally People v Smalls, 16 AD3d 1154 [2005]). The sentence is not unduly harsh or severe. We have reviewed defendant's...