PEOPLE v. JONES (2007)

Defendant appeals from a judgment convicting him following a bench trial of two counts of rape in the third degree (Penal Law § 130.25 [2] ), three counts of criminal sexual act in the third degree (§ 130.40 [2] ) and one count of endangering the welfare of a child (§ 260.10[1] ).   The conviction arises from two incidents involving a 15-year-old girl, one in July 2003 and the other in December 2003.   We reject defendant's contention that reversal is required based on the variance between the dates of the incidents alleged in the indictment and the proof at trial with respect to those dates.   According to defendant, that variance rendered the evidence legally insufficient to establish the offenses charged in the indictment and deprived him of a fair trial and the right to present a defense.   With respect to each of the offenses, “[t]he time of the offense is not a material element of the offense and the variance is relatively minor” (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).   Thus, reversal is not required (see id.;  People v. Holman, 249 A.D.2d 947, 673 N.Y.S.2d 275, lv. denied 92 N.Y.2d 899, 680 N.Y.S.2d 63, 702 N.E.2d 848).   Contrary to defendant's further contentions, Supreme Court properly exercised its discretion in limiting defendant's cross-examination of the complainant (see People v. Corby, 6 N.Y.3d 231, 234-235, 811 N.Y.S.2d 613, 844 N.E.2d 1135;  cf. People v. McFarley, 31 A.D.3d 1166, 818 N.Y.S.2d 379), 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), and defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   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: