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People v. Kirkland

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 14, 1997
237 A.D.2d 875 (N.Y. App. Div. 1997)

Opinion

March 14, 1997.

Judgment unanimously affirmed. Memorandum: County Court dismissed the first five counts of the indictment based upon the variance of one year between the time of the offenses alleged in the indictment and the People's proof at trial ( see, People v Bigda, 184 AD2d 993). Because that variance was not manifest until the complainant testified, there was no basis for dismissing those counts prior to the commencement of the trial. Any prejudice to defendant resulting from references to the dismissed counts during opening statements was obviated by the court's instruction to the jury to disregard those references ( see, People v Hernandez, 207 AD2d 719, 720, lv denied 84 NY2d 936). The propriety of the initial Ventimiglia ruling ( see, People v Ventimiglia, 52 NY2d 350) permitting the People to present evidence on the dismissed counts is academic in view of the court's reversal of that ruling prior to the admission of such evidence.

Present — Denman, P.J., Green, Pine, Balio and Boehm, JJ.


We have considered defendant's remaining contention and conclude that it lacks merit. (Appeal from Judgment of Monroe County Court, Marks, J. — Sexual Abuse, 1st Degree.)


Summaries of

People v. Kirkland

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 14, 1997
237 A.D.2d 875 (N.Y. App. Div. 1997)
Case details for

People v. Kirkland

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARTIE KIRKLAND…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 14, 1997

Citations

237 A.D.2d 875 (N.Y. App. Div. 1997)
656 N.Y.S.2d 1004