PEOPLE v. AARON (2008)

 Defendant appeals from a judgment convicting him as a juvenile offender, based upon a jury verdict, of rape in the first degree (Penal Law § 130.35[1] ) and from a youthful offender adjudication, based upon a jury verdict, of sexual abuse in the third degree (Penal Law § 130.55).   Defendant's general motion to dismiss is insufficient to preserve for our review defendant's challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, defendant failed to renew his motion after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   Contrary to the contention of defendant, County Court properly admitted evidence of his prior sexual misconduct with the victim, his sister, because that evidence was relevant in establishing that “defendant's sexual act [was] perpetrated against the victim by forcible compulsion” (People v. Chase, 277 A.D.2d 1045, 716 N.Y.S.2d 486, lv. denied 96 N.Y.2d 733, 722 N.Y.S.2d 799, 745 N.E.2d 1022;  see also People v. Cook, 93 N.Y.2d 840, 841, 688 N.Y.S.2d 89, 710 N.E.2d 654;  People v. Jackson, 4 A.D.3d 848, 849, 772 N.Y.S.2d 149, lv. denied 2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472).   We further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

 We agree with the contention of defendant in his pro se supplemental brief that the court erred in failing to grant that part of his omnibus motion seeking to dismiss the third count of the indictment, charging him with sexual abuse in the third degree, on the ground that it was facially defective.  “The indictment must set forth a time interval that reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation” (People v. Risolo, 261 A.D.2d 921, 921, 689 N.Y.S.2d 836 [internal quotation marks omitted] ) and, here, the 12-month period set forth in that count was unreasonable (see People v. Beauchamp, 74 N.Y.2d 639, 641, 541 N.Y.S.2d 977, 539 N.E.2d 1105;  People v. Keindl, 68 N.Y.2d 410, 419, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539;  see also People v. Sedlock, 8 N.Y.3d 535, 539-540, 838 N.Y.S.2d 14, 869 N.E.2d 14), in view of the fact that the victim was 13 or 14 years old during that time period and thus was capable “of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist [her] in narrowing the time spans alleged” (Keindl, 68 N.Y.2d at 420, 509 N.Y.S.2d 790, 502 N.E.2d 577).   Contrary to the further contention of defendant in his pro se supplemental brief, however, the 4 1/212-month time period set forth in the first count, charging him with rape in the first degree, was not excessive, in view of the nature of the offense and the age of the victim (see People v. Watt, 84 N.Y.2d 948, 950-951, 620 N.Y.S.2d 817, 644 N.E.2d 1373;  People v. Roman, 43 A.D.3d 1282, 1283, 842 N.Y.S.2d 640;  People v. Lanfair, 18 A.D.3d 1032, 1033, 795 N.Y.S.2d 390, lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671).

We have reviewed the remaining contentions of defendant in his pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the adjudication is reversed on the law, that part of defendant's motion seeking to dismiss the third count of the indictment is granted and that count of the indictment is dismissed.

MEMORANDUM: