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

961
KA 14-01548
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHAD J. COLSRUD, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered December 9, 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 affirmed.

      Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of endangering the welfare of a child (Penal Law
§ 260.10 [1]). Defendant contends that the verdict is legally
repugnant inasmuch as the jury acquitted him of five counts of rape in
the third degree (§ 130.25 [2]), one count of criminal sexual act in
the third degree (§ 130.40 [2]), and three counts of unlawfully
dealing with a child in the first degree (§ 260.20 [2]). We reject
that contention. When viewed in light of the elements of each crime
as charged to the jury without regard to the accuracy of those
instructions (see People v Tucker, 55 NY2d 1, 4, 7-8, rearg denied 55
NY2d 1039), none of the acquittals negates an essential element of the
crime of endangering the welfare of a child (see People v Strickland,
78 AD3d 1210, 1211; see generally People v Muhammad, 17 NY3d 532, 538-
539).

     Defendant also contends that, as instructed by the court, the
jury was precluded from finding that he endangered the welfare of the
victim under count two by any conduct beyond that which was alleged in
the indictment with respect to rape in the third degree and criminal
sexual act in the third degree. We reject that contention. Although
the People concede defendant’s interpretation of the court’s
instructions, such concession “does not . . . relieve us from the
performance of our judicial function and does not require us to adopt
the [interpretation] urged upon us” (People v Berrios, 28 NY2d 361,
366-367). We construe the instruction at issue to be permissive
                                 -2-                           961
                                                         KA 14-01548

rather than restrictive, and we therefore conclude that the
instruction did not preclude the jury from considering evidence of
other acts “likely to be injurious to the physical, mental or moral
welfare” of the victim beyond the specific acts alleged in the other
counts of the indictment (Penal Law § 260.10 [1]; see generally
Strickland, 78 AD3d at 1211-1212).

     We reject defendant’s further contention that he was convicted on
a theory different from that set forth in the indictment. We
recognize the general rule that where a court’s jury instruction on a
particular count erroneously contains an additional theory that
differs from the theory alleged in the indictment, as limited by the
bill of particulars, and the evidence adduced at trial could have
established either theory, reversal of the conviction on that count is
required because there is a possibility that the jury could have
convicted the defendant upon the uncharged theory (see People v Grega,
72 NY2d 489, 496). Here, count two of the indictment alleged that
defendant endangered the child by subjecting her to “sexual contact”
(see Penal Law § 130.00 [3]). The People’s bill of particulars did
not narrow the specific type of “sexual contact” alleged in count two
(cf. People v Duell, 124 AD3d 1225, 1227, lv denied 26 NY3d 967), and
the indictment did not limit the People to a particular act of “sexual
contact” at trial (see generally People v McGrew, 103 AD3d 1170,
1174). The court instructed the jury under count two that the People
were required to prove that defendant endangered the child by
subjecting her to “sexual conduct,” which the court defined in
accordance with Penal Law § 130.00 (10). Inasmuch as the term “sexual
contact” is broad enough to include all forms of “sexual conduct,” we
conclude that defendant received the requisite “ ‘fair notice of the
accusations against him’ ” (Grega, 72 NY2d at 495; see People v Abeel,
67 AD3d 1408, 1410), and that there is no possibility that the jury
could have convicted the defendant upon an uncharged theory.

     Viewing the evidence in light of the elements of the crime of
endangering the welfare of a child as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we further conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
