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

395
KA 09-02128
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY P. ERLE, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JEFFREY P. ERLE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered August 17, 2009. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(three counts), rape in the first degree (two counts), rape in the
third degree (two counts) and attempted criminal sexual act in the
first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him of, inter
alia, two counts of rape in the first degree (Penal Law § 130.35 [1],
[2]), defendant contends that the indictment was fatally defective
because it lacked sufficient specificity to enable him to prepare a
defense. We conclude that defendant failed to preserve his contention
for our review (see People v Soto, 44 NY2d 683; People v Adams, 59
AD3d 928, lv denied 12 NY3d 813). “In any event, that contention
lacks merit inasmuch as the time frames set forth in the indictment,
[e.g., on or about a day in June 2008], were sufficiently specific in
view of the nature of the offense[s] and the age of the victim”
(Adams, 59 AD3d at 929 [internal quotation marks omitted]; see People
v Franks, 35 AD3d 1286, lv denied 8 NY3d 922; People v Risolo, 261
AD2d 921; see generally People v Morris, 61 NY2d 290, 295-296).

     Defendant further contends that County Court erred in admitting
in evidence the medical report of a physician who testified at trial
because it was based entirely on inadmissible hearsay. Defendant
objected to the admission in evidence of that report only with respect
to its relevance, however, and he therefore failed to preserve his
present contention for our review (see People v Billip, 65 AD3d 430,
                                 -2-                           395
                                                         KA 09-02128

lv denied 13 NY3d 834; People v Nicholopoulos, 289 AD2d 1087, lv
denied 97 NY2d 758). 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]). The sentence is not unduly harsh or severe.

     In his pro se supplemental brief defendant contends that the
conviction is not supported by legally sufficient evidence because the
dates of the incidents as alleged in the indictment were inconsistent
with the dates of the incidents as established at trial. We reject
that contention. The indictment alleged that the incident upon which
the first count was based occurred on a day in June 2008, and it set
forth time periods for the remaining counts that referred to the time
period for the first count. The victim testified at trial, however,
that the incident upon which the first count was based occurred
“towards the end of May” 2008. Where, as here, time is not an
essential element of an offense, “the prosecution is not required to
prove the exact date and time the charged offenses occurred” (People v
Glover, 185 AD2d 458, 460; see People v Cunningham, 48 NY2d 938, 940).
We thus conclude that the variance between the dates alleged in the
indictment and the dates established at trial does not render the
evidence legally insufficient to support the conviction (see People v
Jones, 37 AD3d 1111, lv denied 8 NY3d 986; People v Davis, 15 AD3d
920, lv denied 4 NY3d 885, 5 NY3d 787; People v Morgan, 246 AD2d 686,
687, lv denied 91 NY2d 975). Defendant failed to preserve for our
review his remaining challenges to the legal sufficiency of the
evidence (see People v Gray, 86 NY2d 10, 19).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that, contrary to the contention of defendant in his pro se
supplemental brief, the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“[R]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury . . ., and the testimony of the victim . . .
was not so inconsistent or unbelievable as to render it incredible as
a matter of law” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied
13 NY3d 942 [internal quotation marks omitted]; see People v Black, 38
AD3d 1283, 1285, lv denied 8 NY3d 982). Finally, we reject the
further contention of defendant in his pro se supplemental brief that
the court erred in permitting the People to elicit testimony that
defendant threatened the victim with a knife. That testimony was
admissible “to explain the victim’s failure to make a prompt
complaint” (People v Chase, 277 AD2d 1045, lv denied 96 NY2d 733), “to
develop the necessary background and [to] complete the victim’s
narrative” (People v Shofkom, 63 AD3d 1286, 1287, lv denied 13 NY3d
799, appeal dismissed 13 NY3d 933).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
