PEOPLE v. HAGENBUCH

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. David E. HAGENBUCH, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Robert P. Rickert, Syracuse, for Defendant-Appellant. Victoria M. Anthony, Syracuse, for Plaintiff-Respondent.

 On appeal from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35[3] ), sexual abuse in the first degree (Penal Law § 130.65[3] ) and related crimes, defendant contends that County Court erred in denying his challenges for cause to two prospective jurors who had expressed feelings of sympathy toward children (see, People v. Harris, 247 A.D.2d 630, 631, 669 N.Y.S.2d 355, lv. denied 91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 965).  Those jurors did not, however, express any preconceived notion of defendant's guilt (see, People v. Zurak, 168 A.D.2d 196, 200, 571 N.Y.S.2d 577, lv. denied 79 N.Y.2d 834, 580 N.Y.S.2d 214, 588 N.E.2d 112, cert. denied 504 U.S. 941, 112 S.Ct. 2276, 119 L.Ed.2d 202).  Upon our review of the voir dire transcript as a whole and giving due deference to the determination of the trial court, we conclude that it was not an abuse of discretion for the court to deny defendant's challenges for cause (see, People v. Wiegert, 248 A.D.2d 929, 670 N.Y.S.2d 128, lv. denied 91 N.Y.2d 1014, 676 N.Y.S.2d 142, 698 N.E.2d 971;  People v. Harris, supra, at 632, 669 N.Y.S.2d 355).  The prospective jurors did not evince states of mind that would likely preclude them from rendering an impartial verdict based upon the evidence adduced at trial (see, CPL 270.20[1][b];  People v. Torpey, 63 N.Y.2d 361, 366, 482 N.Y.S.2d 448, 472 N.E.2d 298, rearg. denied 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008).

 We reject the contention that the verdict convicting defendant of rape in the first degree and sexual abuse in the first degree is 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 further reject defendant's contention that the time frames set forth in each count of the indictment are overly broad (see, CPL 200.50[6] ).  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 (see, 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).  Considering the age of the victims and the nature of the offenses, we conclude that the one-month intervals set forth in each count of the indictment are sufficiently specific (see, People v. Sulkey, 195 A.D.2d 1026, 1027, 600 N.Y.S.2d 858, lv. denied 82 N.Y.2d 759, 603 N.Y.S.2d 1001, 624 N.E.2d 187;  cf., People v. Keindl, supra, at 419-420, 509 N.Y.S.2d 790, 502 N.E.2d 577).

 We agree with defendant that count 13 of the indictment, charging sexual abuse in the first degree, is duplicitous.   Each count of an indictment must charge only one offense (see, CPL 200.30[1];  200.50[3];  People v. Keindl, supra, at 417, 509 N.Y.S.2d 790, 502 N.E.2d 577).  Here, the indictment and the People's bill of particulars allege a single act of sexual abuse for each of two counts of sexual abuse in the first degree committed against the complainant Sarah D. during the month of January 1995.   On its face, therefore, the indictment is not duplicitous.   However, at trial the complainant Sarah D. testified to three instances of sexual contact that occurred on three different dates during the month of January 1995.   Upon motion by defendant, the court dismissed one count of sexual abuse in the first degree that occurred during January 1995.   The remaining count of sexual abuse in the first degree thus encompassed three offenses and is duplicitous and should have been dismissed (see, People v. George, 255 A.D.2d 881, 681 N.Y.S.2d 717;  People v. Jelinek, 224 A.D.2d 717, 718, 638 N.Y.S.2d 731, lv. denied 88 N.Y.2d 880, 645 N.Y.S.2d 455, 668 N.E.2d 426, cert. denied 519 U.S. 900, 117 S.Ct. 251, 136 L.Ed.2d 178;  People v. Davila, 198 A.D.2d 371, 373, 603 N.Y.S.2d 185).  Consequently, we modify the judgment by reversing defendant's conviction of sexual abuse in the first degree under count 13 of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment.

Judgment unanimously modified on the law and as modified affirmed.

MEMORANDUM: