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

1372
KA 14-00322
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK W. UTLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered October 24, 2013. The judgment convicted
defendant, upon a jury verdict, of endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and the indictment is dismissed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of endangering the welfare of a child (Penal Law § 260.10
[1]), defendant contends that County Court erred in allowing the jury
to consider conduct for which defendant was not indicted. We agree.
We note at the outset that, contrary to the People’s contention,
defendant preserved this issue for our review based on his exception
to the court’s response to the jury note (cf. People v Harris, 129
AD3d 1522, 1524-1525). As set forth in the indictment and bill of
particulars, as well as pursuant to the People’s theory at trial, the
endangerment charge was based on the conduct alleged in the preceding
six counts of rape in the second degree and incest in the second
degree, of which defendant was acquitted. After receiving a jury note
during deliberations, the court instructed the jurors that they were
not precluded from considering conduct other than the alleged rape and
incest when considering the endangerment charge. That instruction
allowed the jury to consider conduct not charged in the indictment. “
‘Because the jury may have convicted defendant of . . . act[s] . . .
for which he was not indicted, defendant’s right to have charges
preferred by the [g]rand [j]ury rather than the prosecutor at trial
was violated’ ” (People v Shaughnessy, 286 AD2d 856, 857, lv denied 97
NY2d 688; see People v Duell, 124 AD3d 1225, 1226, lv denied 26 NY3d
967). Additionally, based on the vague nature of the court’s
instruction, “[i]t is impossible to ascertain what alleged act of
[endangerment] was found by the jury to have occurred, whether it was
one . . . for which he was indicted, or indeed whether different
jurors convicted defendant based on different acts” (People v McNab,
                                 -2-                          1372
                                                         KA 14-00322

167 AD2d 858, 858; see Shaughnessy, 286 AD2d at 857).

     In view of our decision, we do not address defendant’s remaining
contention.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
