People v. Wosu

213 A.D.2d 967, 624 N.Y.S.2d 479, 1995 N.Y. App. Div. LEXIS 3751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1995
• Status: Published

Opinions

—Judgment affirmed.

Memorandum: Defendant appeals from a judgment of County Court convicting her, following a jury trial, of eight counts of rape in the first degree, eight counts of sodomy in the first degree, four counts of incest, six counts of sexual abuse in the first degree and four counts of endangering the welfare of a child. On appeal, defendant contends that the court erred in answering a question from the jury concerning the date that this incident allegedly occurred.

Defendant was charged with multiple counts of various sexual offenses involving a codefendant’s seven-year-old twin daughters that allegedly occurred on one day in November 1991 while the girls were visiting that codefendant, their father, to celebrate Thanksgiving. The prosecution, in an oral bill of particulars, specified that the offenses occurred “surrounding [a] Thanksgiving visit [with a codefendant]” and “one time, in the latter part of November”. The prosecution in its statements to the jury referred to that date as “a Thanksgiving visit”, or “one time in a latter part of November”. The proof at trial referred to this sexual attack (one codefendant was charged with multiple sexual offenses on two other dates, one in June and one in September) as the “Thanksgiving incident”, the “Thanksgiving visit” or “after a Thanksgiving dinner”.

The children related the time of the incident to a Thanksgiving dinner (the turkey was burnt). Their foster mother testified that the visitation of the children with their father began on Thanksgiving and continued through the weekend. That was the same time period covered by defendant’s alibi, which the jury was free to believe or disbelieve.

The indictment identified this incident as occurring between November 1 and November 30. Notwithstanding the oral bill of particulars and the proof at trial, defendant did not request that the court inform the jury that the incident was tied to a Thanksgiving dinner in the latter part of November and that defendant’s alibi covered the same period. The verdict sheet and the court’s charge to the jury identified this incident by using the dates set forth in the indictment; defendant did not object in either instance.

The jury was obviously concerned and perhaps confused by the conflict between the alibi, the testimony of the victims and the repeated use of "Thanksgiving”. It asked the court: "Could you please clarify for us the actual date of the Thanksgiving date incident? Was it actually that Thanksgiving day, or is the charge for November 1 through November 30, 1991 as the verdict sheet reads” (emphasis added)? By instructing the jurors that they were "the triers and the determiners” of that issue of fact, the court did no more than allow the jurors to find, consistent with the proof, that the incident occurred on a date other than Thanksgiving Day.

Defendant asked the court to instruct the jury to determine if the incident occurred on Thanksgiving Day. Had the court done so, that would have been error, because the exact date of the crime is not a material element of the crime (see, People v Owens, 63 NY2d 824, 826), and the People in their oral bill of particulars and proof did not limit their allegations to that day. In light of defendant’s request that the court answer the jury’s question by restricting the jury’s deliberations to only Thanksgiving Day, the issue whether the jury should have been restricted to considering the time "around Thanksgiving” was not preserved for review (see, CPL 470.05 [2]; see also, People v Gerard, 208 AD2d 421; People v Vigay, 200 AD2d 360, 361, lv denied 83 NY2d 877).

Moreover, in her brief defendant does not argue that the court should have restricted the jury’s deliberations to a period of time around Thanksgiving. Defendant continues to take the position that the court should have told the jury that the crimes charged against defendant were alleged to have occurred on Thanksgiving Day. That position has no basis on this record or in law (see, People v Cunningham, 48 NY2d 938, 940).

The court properly instructed the jury that, as the trier of fact, the jury had to determine who was telling the truth and to resolve the conflicting testimony. Certainly, it might have been better had the court told the jury that defendant’s alibi and the proof submitted by the People were in conflict and that they had to resolve that discrepancy. The court, however, was not permitted to bind the prosecution to one day, as suggested by defendant at trial and on appeal (see, People v Morris, 61 NY2d 290).

We have reviewed defendant’s remaining contentions and conclude that they are without merit.

All concur except Balio and Boehm, JJ., who dissent and vote to reverse in the following Memorandum.