PEOPLE v. GAGNER (2009)

 Defendant appeals from a judgment convicting him of, inter alia, possessing a sexual performance by a child (Penal Law § 263.16).   We agree with defendant that County Court erred in considering evidence that was not presented at the suppression hearing when making its findings of fact in connection with its suppression ruling (see People v. Washington, 291 A.D.2d 780, 781, 737 N.Y.S.2d 895, lv. denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237).   We conclude, however, that the court sufficiently cured the error by basing its suppression ruling solely on the evidence presented at the suppression hearing (see generally People v. Dixon, 305 A.D.2d 1020, 758 N.Y.S.2d 587).   We reject the further contention of defendant that his wife did not freely consent to the search of their home by the police (see People v. Santiago, 41 A.D.3d 1172, 1173-1174, 839 N.Y.S.2d 369, lv. denied 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617).   The court's determination that she did in fact provide her consent is entitled to great deference (see People v. Kozikowski, 23 A.D.3d 990, 803 N.Y.S.2d 841, lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163), and we perceive no reason to disturb that determination.

 We agree with defendant that the court erred in instructing the jury that it could consider a variance in the proof at trial with respect to the time of the offense as opposed to that set forth in the indictment (see 1 CJI[N.Y.] 8.01, at 376).   The indictment charged defendant with possessing a sexual performance by a child on October 24, 2005, while the proof at trial established that one of the three photographs in question was moved on or deleted from defendant's computer on March 13, 2005.   That jury instruction was intended for cases involving “relatively minor variances” of time, not the discrepancy of more than seven months present in this case (People v. Bigda, 184 A.D.2d 993, 994, 584 N.Y.S.2d 238;  cf. People v. Jones, 37 A.D.3d 1111, 829 N.Y.S.2d 364, lv. denied 8 N.Y.3d 986, 838 N.Y.S.2d 490, 869 N.E.2d 666;  People v. Davis, 15 A.D.3d 920, 921, 788 N.Y.S.2d 779, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975, 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668).   We conclude, however, that the court's error in giving that instruction is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Contrary to defendant's further contention, the order of protection was properly admitted in evidence under the public document or official entry exception to the hearsay rule (see People v. Casey, 95 N.Y.2d 354, 361-362, 717 N.Y.S.2d 88, 740 N.E.2d 233).   Defendant's remaining contentions are not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: