PEOPLE v. ROMAN

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Orlando O. ROMAN, Defendant-Appellant.  (Appeal No. 2.)

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Orlando O. Roman, Defendant-Appellant Pro Se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

 On appeal from a judgment convicting him of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65[1] ), defendant contends that Supreme Court's Ventimiglia ruling was improper.   We reject that contention.   Evidence of defendant's prior physical abuse of the victim or other acts of violence with respect to the victim is admissible inasmuch as it is probative of the victim's state of mind and thus is relevant in establishing that defendant used forcible compulsion (see generally People v. Thompson, 72 N.Y.2d 410, 415-416, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327;  People v. Ayala, 236 A.D.2d 802, 654 N.Y.S.2d 59, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055).  “The introduction of such evidence ‘is especially warranted ․ where the crime[s] charged [have] occurred in the privacy of the home and the facts are not easily unraveled’ ” (People v. Riley, 23 A.D.3d 1077, 1077, 805 N.Y.S.2d 215, lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 457, 845 N.E.2d 1288, quoting People v. Henson, 33 N.Y.2d 63, 72, 349 N.Y.S.2d 657, 304 N.E.2d 358).   Defendant failed to preserve for our review his contention in his pro se supplemental brief concerning the legal sufficiency of the 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).   We further reject defendant's contention that the indictment failed to provide a sufficiently specific time frame with respect to counts one through five.  “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] ).   “Whether time frames set forth in an indictment are sufficiently specific is to be determined on a case-by-case basis in view of all the relevant circumstances” (People v. Hagenbuch, 267 A.D.2d 948, 949, 701 N.Y.S.2d 213, lv. denied 95 N.Y.2d 797, 711 N.Y.S.2d 165, 733 N.E.2d 237).   Here, the three-month time frames provided in counts one through four and the two-month time frame in count five were sufficiently specific in view of the victim's young age and were “not so large that [they] deprive[d] the defendant of the ability to prepare and present a defense” (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;  see People v. Melfa, 244 A.D.2d 857, 858, 665 N.Y.S.2d 780, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 9, 691 N.E.2d 1035).

As the People correctly concede, however, the sentence is illegal insofar as the court imposed a five-year period of postrelease supervision on the two counts of sexual abuse in the first degree (see Penal Law former § 70.45[2] ).   We therefore modify the judgment by reducing the period of postrelease supervision imposed on those counts to a period of three years, the maximum allowed (see People v. Keith, 26 A.D.3d 879, 808 N.Y.S.2d 536, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380).

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

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the period of postrelease supervision imposed for sexual abuse in the first degree under counts four and nine of the indictment to a period of three years and as modified the judgment is affirmed.

MEMORANDUM: