                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     107684
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ANGEL GARCIA,
                    Appellant.
________________________________


Calendar Date:   May 27, 2016

Before:   McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.

                             __________


     Matthew C. Hug, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered September 17, 2014, upon a verdict
convicting defendant of the crime of sexual abuse in the first
degree (two counts).

      In 2013, defendant was charged in a superseding indictment
with two counts of sexual abuse in the first degree based upon
his sexual contact with the victim (born in 1997) "on an unknown
date on or about and between May 1, 2003 and October 1, 2003."
The victim disclosed the abuse to law enforcement in 2012 at the
age of 15. Upon defendant's discovery demands and request for a
bill of particulars, including a request for further
specification as to the date and time of the alleged crimes, the
People stated that the conduct constituting both counts of sexual
                              -2-                107684

abuse in the first degree occurred on the same date during the
"daytime hours," but that the victim could not recall the precise
date on which the abuse occurred. County Court denied
defendant's subsequent motion to dismiss the superseding
indictment on the basis that, among other things, the time
interval alleged was overly broad. Following a jury trial,
defendant was convicted as charged and sentenced to two
concurrent prison terms of five years, followed by 10 years of
postrelease supervision. Defendant appeals.

      Defendant contends that the verdict was against the weight
of the evidence. Where, as here, a different verdict would not
have been unreasonable, we "must, like the trier of fact below,
weigh the relative probative force of conflicting testimony and
the relative strength of conflicting inferences that may be drawn
from the testimony" (People v Romero, 7 NY3d 633, 643 [2006]
[internal quotation marks and citations omitted]; see People v
Colvin, 37 AD3d 856, 857 [2007], lv denied 8 NY3d 944 [2007]).
Here, the victim testified in detail about the circumstances
surrounding the sexual contact to which defendant – her godfather
– subjected her when she was six years old. In particular, the
victim stated that she went to defendant's apartment to deliver
food from her mother and to ask if defendant's granddaughter was
available to play. She asserted that, while she was waiting in
the living room, defendant came up behind her and began touching
her vagina and, a few minutes later, grabbed her arm and brought
her to the bedroom, where he placed her on the bed and again
touched her vagina. While defendant asserts that the veracity of
the victim's account was undermined by her prior inconsistent
statements, as well as her parents' application for a U-Visa
based on her status as a crime victim, such matters were explored
on cross-examination and presented credibility issues for the
jury (see People v Thiel, 134 AD3d 1237, 1239 [2015]; People v
Fernandez, 106 AD3d 1281, 1285 [2013]). Viewing the evidence in
a neutral light and according due deference to the jury's factual
and credibility determinations, we are satisfied that the verdict
was supported by the weight of the evidence (see People v Brown,
114 AD3d 1017, 1018-1019 [2014]; People v Galloway, 93 AD3d 1069,
1071 [2012], lv denied 19 NY3d 996 [2012]).

     Defendant also argues that the five-month period alleged in
                              -3-                107684

the superseding indictment deprived him of the ability to
adequately prepare a defense and that the People did not allege
the most particular time frame possible. "When time is not an
essential element of an offense, the indictment, as supplemented
by a bill of particulars, may allege the time in approximate
terms[, so long as it] set[s] forth a time interval which
reasonably serves the function of protecting [the] defendant's
constitutional right to be informed of the nature and cause of
the accusation" (People v Watt, 81 NY2d 772, 774 [1993] [internal
quotation marks and citations omitted]; accord People v Porlier,
55 AD3d 1059, 1060 [2008]). "Reasonableness and fairness demand
that the indictment state the date and time of the offense to the
best of the People's knowledge, after a reasonably thorough
investigation has been undertaken to ascertain such information"
(People v Morris, 61 NY2d 290, 296 [1984]; see People v Jabot, 93
AD3d 1079, 1080 [2012]). In assessing whether a more precise
date could have been ascertained through diligent efforts, we may
consider the age and intelligence of the victim, the relevant
circumstances and "the nature of the offense, including whether
it is likely to occur at a specific time or is likely to be
discovered immediately" (People v Morris, 61 NY2d at 296; see
People v Watt, 81 NY2d at 774-775). If we conclude that the
People made diligent efforts, we then determine whether the time
period alleged was reasonable by considering, among other
factors, the ability of the victim to particularize the date of
the offense and the passage of time between the alleged offense
and the defendant's arrest and/or the date of the indictment (see
People v Morris, 61 NY2d at 296).

      Defendant failed to demonstrate that the People were aware
of and disregarded a narrower time frame, and we are unpersuaded
that they failed to make diligent efforts to ascertain the most
precise time period. While the victim testified at trial that
the abuse took place two weeks before her sister's birthday in
July and that she had told the prosecutor this, the prosecutor
stated, outside the presence of the jury, that the victim had
never before discussed the date of the abuse with such
specificity. The prosecutor asserted that, notwithstanding
extensive questioning aimed at narrowing the time frame, the
victim was previously only able to recall that her younger sister
was crawling and learning to walk and that she was wearing shorts
                              -4-                107684

and flip flops at the time of the offenses. County Court
credited the prosecutor's statement that the victim had never
before given a two-week time frame, noting that the victim had
made inconsistent statements regarding the time period. It is
not implausible that the victim initially had difficulty
recalling the date of the offenses, given that she was six years
old at the time, did not disclose the abuse until roughly eight
years later and, by her own account, had spent those eight years
trying to suppress her memories of the incident. Her disclosure
came only after defendant approached and apologized to her for
what he had done. Additionally, defendant lived in the same
apartment building as the victim and was a close family friend
and, therefore, had regular access to the victim. Under all of
these circumstances, including the nature of the offenses, the
five-month period alleged in the superseding indictment was
reasonable (see People v Watt, 84 NY2d 948, 950-951 [1994];
People v Griswold, 95 AD3d 1454, 1455 [2012], lv denied 19 NY3d
997 [2012]; People v Oglesby, 12 AD3d 857, 859 [2004], lv denied
5 NY3d 792 [2005]). Moreover, inasmuch "as his defense was a
categorical denial of any abuse or sexual contact," the People's
inability to pinpoint a more precise time period prior to trial
did not deprive defendant of the ability to prepare a defense
(People v Porlier, 55 AD3d at 1060; see People v Watt, 84 NY2d at
951).

      Defendant argues that County Court abused its discretion in
denying his request to call the prosecutor as a witness to
testify that the victim had never before stated that the abuse
occurred two weeks before her sister's birthday or his
alternative request for an adverse inference charge. The
determination to permit a defendant "to call the prosecutor as a
witness rests in the sound discretion of the trial court" (People
v Paperno, 54 NY2d 294, 302-303 [1981]; see People v Sharpe, 167
AD2d 296, 297 [1990], lv denied 77 NY2d 911 [1991]). Here, as
defense counsel had an ample opportunity to cross-examine the
victim as to her prior inconsistent statements relating to the
time frame and was able to attack the credibility of the victim
through such cross-examination, County Court did not abuse its
discretion in denying defendant's requests (see People v DiTucci,
81 AD3d 1249, 1250 [2011], lv denied 17 NY3d 794 [2011]; People v
Smith, 262 AD2d 77, 78 [1999], lv denied 93 NY2d 1027 [1999];
                              -5-                107684

People v Sharpe, 167 AD2d at 297).

      We further disagree with defendant's assertion that the
second count of sexual abuse in the first degree should be
dismissed as multiplicitous. The two instances of sexual contact
occurred in separate rooms in defendant's home and the second
instance occurred after "a few minutes" had passed. Thus, as
defendant's conduct did not constitute a single, uninterrupted
occurrence of sexual contact, the indictment was not
multiplicitous (see People v Grosso, 281 AD2d 986, 988 [2001], lv
denied 96 NY2d 800 [2001]; compare People v Alonzo, 16 NY3d 267,
270 [2011]).

      Finally, the sentence imposed upon defendant, which was
less than the maximum permissible term (see Penal Law § 70.80 [4]
[a] [iii]), was not harsh or excessive and, in the absence of an
abuse of discretion or the existence of extraordinary
circumstances warranting a reduction, we decline to disturb it
(see People v Cook, 112 AD3d 1065, 1066 [2013]; People v Lemke,
58 AD3d 1078, 1080 [2009]; People v Shook, 294 AD2d 710, 713-714
[2002], lv denied 98 NY2d 702 [2002]). Defendant's remaining
contentions, including his challenges to certain evidentiary
rulings made by County Court, have been examined and found to be
lacking in merit.

     McCarthy, J.P., Rose, Devine and Aarons, JJ., concur.
                              -6-                  107684

      ORDERED that the judgment is affirmed, and matter remitted
to the County Court of Albany County for further proceedings
pursuant to CPL 460.50 (5).




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
