Opinion
Argued January 10, 1996
Decided February 8, 1996
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Rose D. LaMendola, J.
Kevin J. Bauer, Buffalo, and Joel L. Daniels for appellant.
Kevin M. Dillon, District Attorney of Erie County, Buffalo (Kimberly A. Phelan and John J. DeFranks of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's convictions arose out of the rape and sexual abuse of twin seven-year-old girls, the daughters of a convicted codefendant. The indictment alleged that the criminal assaults occurred between November 1 and November 30, 1991. In an oral bill of particulars, the People later narrowed the time frame to the period "around Thanksgiving." The evidence at trial showed that the memories of the child victims were keyed to a Thanksgiving-time turkey dinner at their father's house.
During deliberations, the jury sent a note asking for the "actual date" of the charged crimes. The jury sought clarification of whether the offense occurred "actually that Thanksgiving Day or is the charge for November 1 through November 30, 1991, as the verdict sheet reads." The Trial Judge simply instructed the jurors that the date of the incident was a question of fact for their determination. The jury convicted defendant and the Appellate Division affirmed the conviction, with two Justices dissenting. A Justice of the Appellate Division granted leave to appeal to this Court.
We agree with the Appellate Division majority ( 213 A.D.2d 967, 968) that defendant's trial counsel did not specifically and adequately preserve the appellate claims now made, to wit: (1) that the Trial Judge's supplemental instruction should have informed the jury that the incident occurred on or near Thanksgiving Day, consistent with the proof at trial, and (2) that it was error to instruct the jury that the date of the incident was a question of fact for their determination. Because the issues are beyond this Court's power to review in these circumstances and defendant's remaining claims are without merit, we affirm the order of the Appellate Division.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.