        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

587
KA 11-00147
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LEPOLIA J. SPENCER, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

LEPOLIA J. SPENCER, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered January 21, 2010. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree (three
counts), criminal sexual act in the second degree (five counts),
course of sexual conduct against a child in the first degree, rape in
the third degree (two counts), criminal sexual act in the third degree
(two counts) and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing that part convicting defendant of
endangering the welfare of a child under count 15 of the indictment
and dismissing that count of the indictment, and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of one count each of course of sexual conduct
against a child in the first degree (Penal Law § 130.75 [1] [b]) and
endangering the welfare of a child (§ 260.10 [1]), three counts of
rape in the second degree (§ 130.30 [1]; former § 130.30), five counts
of criminal sexual act in the second degree (§ 130.45 [1]; former §
130.45), and two counts each of rape in the third degree (§ 130.25
[2]) and criminal sexual act in the third degree (§ 130.40 [2]). As
the People correctly concede, the count charging endangering the
welfare of a child should be dismissed as time-barred “inasmuch as the
acts charged therein occurred more than two years prior to the filing
of the indictment” (People v Wildrick, 83 AD3d 1455, 1456, lv denied
17 NY3d 803; see CPL 30.10 [2] [c]; Penal Law § 260.10). Although
defendant failed to preserve that contention for our review, we
nevertheless exercise our power to address it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a];
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                                                         KA 11-00147

Wildrick, 83 AD3d at 1456), and we modify the judgment accordingly.

     We reject defendant’s further contention that the counts of the
indictment charging sexual offenses, with the exception of course of
sexual conduct against a child in the first degree, were rendered
duplicitous by the victim’s trial testimony. The first six counts of
the indictment charged defendant with various sex offenses arising
from two incidents that occurred during the summer of 2000 at
defendant’s then residence, located in Utica. The victim testified in
detail about those two incidents, during which defendant sodomized and
raped her, and she then testified that the abuse “became a regular
thing,” happening several times a week until she left home at age 17,
in 2006. The victim’s testimony about the abuse continuing regularly
until 2006 was relevant to the charge of course of sexual conduct
against a child in the first degree, and we conclude that, in light of
the victim’s specific and detailed testimony about the first two
incidents, there is no reasonable possibility that the jurors may have
convicted defendant of any of the first six counts based on the
general and vague testimony that followed (see People v Tomlinson, 53
AD3d 798, 799, lv denied 11 NY3d 835; People v Weber, 25 AD3d 919,
922, lv denied 6 NY3d 839; cf. People v Bracewell, 34 AD3d 1197,
1198). We note that it was clear from the prosecutor’s summation that
the first six counts related to the victim’s detailed testimony about
the two incidents that occurred in the summer of 2000 (see People v
Ramirez, 99 AD3d 1241, 1242, lv denied 20 NY3d 988). For similar
reasons, we conclude that counts eight, nine and 11 through 14 were
not rendered duplicitous by the victim’s testimony that certain
previously described sexual acts recurred on a weekly basis.

      We reject defendant’s contention that the time periods specified
for counts one through six, eight, nine, and 11 through 14 were too
broad to permit him to prepare a defense. CPL 200.50 (6) requires
that an indictment contain an allegation “that the offense charged
therein was committed on, or on or about, a designated date, or during
a designated period of time.” As long as the period of time is not an
essential element of the charged crime, a “reasonable approximation”
is sufficient to comply with the statute (People v Morris, 61 NY2d
290, 292), especially where the crime was committed against a young
victim, and was not immediately reported (see id. at 295-297; People v
Case, 29 AD3d 706, 706-707, lv denied 7 NY3d 786; People v Oglesby, 12
AD3d 857, 858-859, lv denied 5 NY3d 792). Here, time is not an
essential element of the crimes charged, and considering that the
victim was a minor at the time that the crimes were committed and
defendant was not arrested or indicted until several years later, we
conclude that the use of a three-month “seasonal” period in the
indictment was sufficiently specific (see e.g. People v LaPage, 53
AD3d 693, 694-695; People v Dickens, 48 AD3d 1034, 1035, lv denied 10
NY3d 958; People v Furlong, 4 AD3d 839, 840-841, lv denied 2 NY3d
739).

     Defendant further contends that the court erred in allowing
several prosecution witnesses, including the victim, to testify
regarding his use of marihuana and crack cocaine. Because defendant
did not object to such testimony, however, his contention is
                                 -3-                           587
                                                         KA 11-00147

unpreserved for our review (see CPL 470.05 [2]; People v Marmulstein,
6 AD3d 879, 881, lv denied 3 NY3d 660; People v Mediak, 217 AD2d 961,
962, lv denied 87 NY2d 848), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the evidence is legally insufficient to support the conviction of
counts seven through nine, and 11 through 14. In any event, viewing
the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is a valid line of
reasoning and permissible inferences to support the jury’s finding
that defendant committed the crimes of which he was convicted based on
the evidence presented at trial (see generally People v Bleakley, 69
NY2d 490, 495). With respect to the counts in question, the victim
testified that defendant had “sexual intercourse” and “oral sex” with
her. Although defendant is correct that the victim did not specify
what she meant by those terms, we note that she previously defined
those terms during her testimony regarding counts one through six. We
thus conclude that the victim’s initial description of what she meant
by the terms “oral sex” and “sexual intercourse” (see Penal Law §
130.00 [1], [2] [a]), combined with the ordinary meanings of those
terms, provided sufficient evidence to support defendant’s conviction
of the counts in question (see People v Wyre, 97 AD3d 976, 977, lv
denied 19 NY3d 1030; People v Workman, 56 AD3d 1155, 1155-1156, lv
denied 12 NY3d 789; cf. People v Carroll, 95 NY2d 375, 383-384).

     Contrary to defendant’s further contention, County Court did not
err in admitting in evidence an undated letter written by defendant to
the victim. In the letter, which contains graphic sexual language,
defendant berated the victim for having sexual relations with other
men and stated that, as punishment, he “might as well prostitute your
ass out.” The letter was admissible as an admission with respect to
the count of endangering the welfare of a child, which was based, at
least in part, on the victim’s testimony that defendant agreed to
allow a friend of his to have sex with her in return for drugs (see
People v Swart, 273 AD2d 503, 505, lv denied 95 NY2d 908). Moreover,
the People laid a proper foundation for the admission of the letter
inasmuch as the victim and her mother testified that they are familiar
with defendant’s handwriting and that the letter appeared to have been
written by him (see People v Clark, 122 AD2d 389, 390, lv denied 68
NY2d 913).

     We have reviewed defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that they lack merit.




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
