Opinion
KA 01-00899.
February 11, 2004.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered August 3, 2000. The judgment convicted defendant, upon a jury verdict, of rape in the second degree, sodomy in the second degree, rape in the third degree (two counts), sodomy in the third degree (two counts), and endangering the welfare of a child.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD E. TODD, DISTRICT ATTORNEY, OSWEGO, FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of one count of rape in the second degree (Penal Law § 130.30), one count of sodomy in the second degree (former § 130.45), two counts of rape in the third degree (§ 130.25 [2]), two counts of sodomy in the third degree (former § 130.40 [2]), and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant contends that County Court erred in denying his request for a Huntley hearing to determine whether statements he made during a police-monitored telephone conversation were involuntary under CPL 60.45(2)(b)(i). That contention is not preserved for our review inasmuch as defendant never requested a hearing on that ground ( see 470.05 [2]; see generally People v. Sutton, 111 A.D.2d 197, lv denied 66 N.Y.2d 768). Also unpreserved for our review are the contentions of defendant that there was not a sufficient evidentiary foundation to admit the audiotape in evidence ( see People v. Janes, 261 A.D.2d 890, lv denied 93 N.Y.2d 1020) and that the court erred in failing to charge the jury on the issue of the voluntariness of his statements on the audiotape ( see People v. Stroman, 286 A.D.2d 974, 975-976, lv denied 97 N.Y.2d 688; People v. Nuhibian, 201 A.D.2d 962, 963, lv denied 83 N.Y.2d 856). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15[6][a]).
We reject the contention of defendant that certain counts of the indictment, as amplified by the bill of particulars, lacked sufficient specificity to enable him to prepare a defense. The two counts concerning "on or about Halloween 1996" are sufficiently specific ( see generally People v. Keindl, 68 N.Y.2d 410, 416-417, rearg denied 69 N.Y.2d 823; People v. Risolo 261 A.D.2d 921), as are the two counts involving the seasonal time frame of "on or about during the fall of 1998" ( see People v. Melfa, 244 A.D.2d 857, 858, lv denied 91 N.Y.2d 895; People v. Smith, 178 A.D.2d 918, lv denied 79 N.Y.2d 953; see also People v. Smith, 272 A.D.2d 713, 714, lv denied 95 N.Y.2d 871; People v. Keefer, 262 A.D.2d 791, 792, lv denied 94 N.Y.2d 824). Finally, the time frame "starting in 1993 through May of 1999" is sufficiently specific for the count charging the continuing crime of endangering the welfare of a child ( see People v. Latouche, 303 A.D.2d 246, lv denied 100 N.Y.2d 595; People v. Hutzler, 270 A.D.2d 934, 935-936, lv denied 94 N.Y.2d 948).
Defendant has not preserved for our review his contention that the evidence is legally insufficient with respect to counts 3, 4, and 10 ( see People v. Gray, 86 N.Y.2d 10, 19; People v. Tutt, 305 A.D.2d 987, 988, lv denied 100 N.Y.2d 588). We reject defendant's further contention that the evidence is legally insufficient with respect to counts six, seven, eight and nine; any inconsistencies in the testimony of the victim with respect to the dates of those crimes merely presented a credibility issue for the jury to resolve ( see People v. Bell, 234 A.D.2d 915, 915-916, lv denied 89 N.Y.2d 1009). We conclude that the jury did not fail to give the evidence the weight it should be accorded ( see People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that defendant's sentence is neither unduly harsh nor severe. We have examined defendant's remaining contentions and conclude that they are lacking in merit.