PEOPLE v. PICENTE (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of sodomy in the second degree (Penal Law former § 130.45[1] ) and three counts of endangering the welfare of a child (§ 260.10[1] ).   Defendant failed to preserve for our review his contention that the proof with respect to the date of the commission of the crimes renders the evidence legally insufficient to support the conviction.   Defendant did not seek dismissal of the counts at issue on that ground (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and his CPL 330.30 motion is insufficient to preserve his present contention for our review (see People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233, rearg. denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119, rearg. dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152;  People v. Mills, 28 A.D.3d 1156, 813 N.Y.S.2d 592;   People v. Bowen, 17 A.D.3d 1054, 1055, 794 N.Y.S.2d 203, lv. denied 5 N.Y.3d 759, 801 N.Y.S.2d 254, 834 N.E.2d 1264).   In any event, defendant's contention lacks merit because the precise date of the commission of the crimes is not an essential element thereof (see generally People v. Williams, 24 A.D.3d 882, 883-884, 806 N.Y.S.2d 266, lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983;  People v. Grimes, 301 A.D.2d 953, 954-955, 756 N.Y.S.2d 282, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 119, 790 N.E.2d 293).

 Contrary to defendant's further contention, County Court properly allowed the People to impeach the victim with her prior inconsistent statements inasmuch as her trial testimony was affirmatively damaging to the People's case (see CPL 60.35[1];  People v. Fitzpatrick, 40 N.Y.2d 44, 51-52, 386 N.Y.S.2d 28, 351 N.E.2d 675;  People v. Davis, 112 A.D.2d 722, 723, 492 N.Y.S.2d 212, lv. denied 66 N.Y.2d 918, 498 N.Y.S.2d 1033, 489 N.E.2d 778).   Defendant failed to preserve for our review his contention that the court erred in allowing the People to impeach the victim's brother with his supporting deposition and grand jury testimony (see People v. Jones, 25 A.D.3d 724, 725, 811 N.Y.S.2d 702, lv. denied 7 N.Y.3d 757, 819 N.Y.S.2d 883, 853 N.E.2d 254).   In any event, we conclude that any error by the court in allowing that impeachment is harmless (see People v. Brown, 23 A.D.3d 1090, 1092, 804 N.Y.S.2d 209, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 449, 845 N.E.2d 1280;  People v. Zenger, 134 A.D.2d 640, 521 N.Y.S.2d 535, lv. denied 70 N.Y.2d 1012, 526 N.Y.S.2d 947, 521 N.E.2d 1090;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: