THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVID EVANS DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is modified on the law by reversing that part convicting defendant of predatory sexual assault against a child under count 1 of the indictment and dismissing that count and as modified the judgment is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of two counts of predatory sexual assault against a child (Penal Law former § 130.96) and one count of attempted rape in the first degree (§ 110.00, former § 130.35 [4]) and, in appeal No. 2, defendant appeals from a resentence on that conviction.

We note at the outset that, inasmuch as the sentence in appeal No. 1 was superceded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v Weathington [appeal No. 2], 141 AD3d 1173, 1173 [4th Dept 2016], lv denied 28 NY3d 975 [2016]; People v Primm, 57 AD3d 1525, 1525 [4th Dept 2008], lv denied 12 NY3d 820 [2009]).

Defendant contends in appeal No. 1 that County Court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30), arguing that the People's failure to disclose certain records rendered the certificate of compliance (COC) improper (see CPL 30.30 [5]; 245.50 [1]), thereby rendering the statement of readiness “illusory and insufficient to stop the running of the speedy trial clock” (People v Geer, 224 AD3d 1353, 1354 [4th Dept 2024], lv denied 42 NY3d 970 [2024] [internal quotation marks omitted]; see generally People v Gaskin, 214 AD3d 1353, 1354 [4th Dept 2023]). We reject that contention. The People exercised due diligence and “made reasonable efforts sufficient to satisfy CPL article 245” (People v Bay, 41 NY3d 200, 212 [2023]; see People v Rojas-Aponte, 242 AD3d 1537, 1540 [4th Dept 2025], lv denied 44 NY3d 1068 [2026]). It would not have been obvious to the People that certain records that existed when the COC was filed were missing from the items that were turned over to the defense (see People v Odusanya, 235 AD3d 1299, 1302 [4th Dept 2025], lv denied 43 NY3d 965 [2025]).

Next, defendant contends in appeal No. 1 that the court erred in excluding certain evidence because it was directly relevant to the credibility of the victim and would have impeached her testimony on cross-examination about a non-charged incident of abuse. We reject that contention. “It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” (People v Pavao, 59 NY2d 282, 288-289 [1983]). Defendant's cross-examination of the victim was with respect to a collateral matter, and the court therefore properly precluded defendant from introducing extrinsic evidence solely to impeach the victim's credibility regarding the incident (see People v Turner, 145 AD3d 745, 746 [2d Dept 2016], lv denied 28 NY3d 1189 [2017]; People v Burns, 122 AD3d 1435, 1436 [4th Dept 2014], lv denied 26 NY3d 927 [2015]; see also People v Bailey, 179 AD3d 1518, 1518-1519 [4th Dept 2020]).

We agree with defendant in appeal No. 1, however, that the conviction of predatory sexual assault against a child under count 1 of the indictment is not supported by legally sufficient evidence, and we therefore modify the judgment accordingly. As relevant here and as alleged in the indictment, “[a] person is guilty of predatory sexual assault against a child when, being [18] years old or more, [the person] commits the crime of ․ course of sexual conduct against a child in the first degree ․ and the victim is less than [13] years old” (Penal Law former § 130.96). As further relevant here and as set forth in the version of the statute applicable at the time of the offense, “[a] person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration ․ [the person], being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse [or] oral sexual conduct ․ with a child less than [13] years old” (former § 130.75 [1] [b]).

The victim was either unable to give a date or an estimated date for the acts of sexual conduct or testified that they occurred sometime between mid-to-late June 2022 to August 8, 2022. We therefore conclude that there is not legally sufficient evidence to establish that two or more acts of sexual intercourse or oral sexual conduct occurred “over a period of time not less than three months in duration” (Penal Law former § 130.75 [1]; see People v Adolph, 206 AD3d 753, 754 [2d Dept 2022], lv denied 38 NY3d 1148 [2022]; People v Partridge, 173 AD3d 1769, 1771 [4th Dept 2019], lv denied 34 NY3d 935 [2019]).

Finally, we reject defendant's contention in appeal No. 2 that the resentence imposed on the remaining counts of the indictment is unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court