PEOPLE v. DAVIS (2005)

 Defendant appeals from a judgment convicting him of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and intimidating a victim or witness in the third degree (§ 215.15[1] ).   The People presented evidence that defendant shot an acquaintance four times at point-blank range and contacted the victim by telephone, threatening him with physical harm if he cooperated in the prosecution of defendant.   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We reject the further contention of defendant that he was denied effective assistance of counsel and conclude that he received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 711-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).

 Defendant failed to preserve for our review his contention that the proof at trial with respect to count four of the indictment, charging him with intimidation of the victim, was at variance with the indictment and therefore that the evidence is legally insufficient to prove the offense as alleged in the indictment (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention lacks merit.   Although the indictment charged that the offense occurred on July 22, 2001, the same day as the shooting, and the proof established that the offense occurred on August 6, 2001, the time of the offense is not a material element of the offense and the variance is relatively minor.   Therefore, contrary to defendant's contention, the error does not require reversal (see People v. Kilgore, 168 A.D.2d 830, 830-831, 564 N.Y.S.2d 782, lv. denied 77 N.Y.2d 962, 570 N.Y.S.2d 496, 573 N.E.2d 584;  see generally People v. Owens, 63 N.Y.2d 824, 826, 482 N.Y.S.2d 250, 472 N.E.2d 26;  People v. La Marca, 3 N.Y.2d 452, 458-459, 165 N.Y.S.2d 753, 144 N.E.2d 420, mot. to amend remittitur granted 3 N.Y.2d 933, 167 N.Y.S.2d 955, 145 N.E.2d 892, 3 N.Y.2d 942, rearg. denied 3 N.Y.2d 942, 4 N.Y.2d 960, 176 N.Y.S.2d 1026, 152 N.E.2d 256, cert. denied 355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279).   Defendant also failed to preserve for our review his contention that remarks made during the prosecutor's summation constituted prosecutorial misconduct, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358).   The sentence is not unduly harsh or severe.   We have reviewed defendant's remaining contentions and conclude that they are either not preserved for our review or are without merit.

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

MEMORANDUM: