The court responded to the note by stating, in substance, that venue was not an issue. This was entirely correct, because defendant had waived the issue by failing to request a jury charge on venue ( see People v Greenberg, 89 NY2d 553, 556), and the jury's note did not obligate the court to instruct the jury on a matter that had not been at issue during the trial ( see People v Medor, 39 AD3d 362, lv denied 9 NY3d 867; People v Vigay, 200 AD2d 360, lv denied 83 NY2d 877). We have considered and rejected defendant's argument that her attorney rendered ineffective assistance on this issue, and her procedural claims concerning the position taken by the trial prosecutor regarding the note.
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 N.Y.2d 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; see also, People v. Gerard, 208 A.D.2d 421; People v. Vigay, 200 A.D.2d 360, 361, lv denied 83 N.Y.2d 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 N.Y.2d 938, 940).