Opinion
May 6, 1991
Appeal from the Supreme Court, Queens County (Joy, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for sexual abuse in the third degree under count eight of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted, inter alia, of repeatedly raping and sexually abusing his stepdaughter. The defendant's conduct commenced in 1983 when his stepdaughter was 12 years old and continued for approximately four and one half years. On appeal, the defendant argues, inter alia, that counts 9 through 17 of the indictment, charging him with endangering the welfare of a child, are "facially defective" due to their alleged lack of specificity. We disagree. The Court of Appeals has held that "an indictment `must provide the accused with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense'" (Matter of Block v Ambach, 73 N.Y.2d 323, 332-333, quoting from People v Keindl, 68 N.Y.2d 410, 416; see also, People v Davis, 72 N.Y.2d 32, 38; People v Iannone, 45 N.Y.2d 589, 594). The Court of Appeals has further observed that, "[w]hen indicting for statutory crimes, it is usually sufficient to charge the language of the statute, unless that language is too broad" (People v Iannone, supra, at 599; People v Di Noia, 105 A.D.2d 799, 800, cert denied 471 U.S. 1022). Here, the challenged counts of the indictment permissibly tracked the relevant statutory language and, together with materials produced pursuant to pretrial disclosure, provided the defendant fair notice of the charges against him (see, People v Di Noia, supra, at 800; see also, People v Charles, 61 N.Y.2d 321, 327; People v Ribowsky, 156 A.D.2d 726, 727, affd 77 N.Y.2d 284).
Further, the court did not err in modifying its Sandoval ruling during trial, as the defendant now contends. Although the court had initially ruled that the defendant could be asked on cross-examination only whether he had ever been convicted of a crime, during direct examination defense counsel inquired into the underlying nature of the crime in question by asking the defendant if his prior conviction was for a sex crime. Under these circumstances, the trial court properly concluded that the door had been opened for the prosecutor to examine the defendant with respect to the identity of the crime involved (see, People v Rios, 166 A.D.2d 616; People v Garcia, 160 A.D.2d 258, 259; People v Brown, 157 A.D.2d 790; see also, People v Melendez, 55 N.Y.2d 445, 451; People v Rahming, 26 N.Y.2d 411, 418; People v McLean, 168 A.D.2d 641; People v McCullough, 141 A.D.2d 856; cf., People v Bolden, 58 N.Y.2d 741).
We agree, however, with the defendant's contention that the People failed to adduce evidence that he committed the crime of sexual abuse in the third degree between the dates of October 29, 1986, and October 31, 1986, as charged in count eight of the indictment. Accordingly, that count of the indictment must be dismissed.
We have reviewed the defendant's remaining contentions, and find them to be either unpreserved for appellate review (see, People v McGee, 152 A.D.2d 601; People v Burns, 118 A.D.2d 864), or lacking in merit. Kooper, J.P., Sullivan, Lawrence and Ritter, JJ., concur.