People v. Halm , 180 A.D.2d 841 ( 1992 )

Yesawich Jr., J.

Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered September 17, 1990, upon a verdict convicting defendant of the crimes of sodomy in the third degree (five counts) and endangering the welfare of a child (three counts).

Unavailing is defendant’s effort to have the indictment dismissed because he allegedly was not given a full and fair opportunity to testify before the Grand Jury. A defendant appearing before a Grand Jury must be "afforded an opportunity to give his version of events prior to being examined by the People” (People v Miller, 144 AD2d 94, 97). When that opportunity has not been conferred the indictment must be dismissed, provided the defendant has moved for such relief within five days of his arraignment, otherwise the indictment stands (see, CPL 190.50 [5] [c]; People v King, 170 AD2d 710, lv denied 77 NY2d 997). Here, defendant failed to move in a timely fashion, thus waiving any objection to the indictment. Moreover, even if he had objected within the required time frame, it does not appear that defendant was precluded in any way from making any explanatory statement he wished to the Grand Jury. Although the prosecutor did interrupt him to ask clarifying questions, defendant’s direct statement to the Grand Jury did raise the issues of his accusers’ credibility, police intimidation and a political agenda directed by others with the purpose of discrediting him; when repeatedly asked if he wished to speak further to the matter before the Grand Jury, he declined to do so (see, People v Millson, 93 AD2d 899; cf., People v Lerman, 116 AD2d 665, 666; People v Durante, 97 AD2d 851, 852).

Nor are we persuaded that the prosecutor’s comments during summation prejudiced defendant to the extent that he was denied a fair trial. While the prosecutor’s allusion to the victims as "Kids. Your kids. My kids. Our Kids. The youth of America”, to their constitutional rights and to the need to protect those rights might better have been left unsaid, defendant has not shown that these remarks unfairly tainted the verdict. And, when the prosecutor adverted to defendant’s failure to testify, County Court promptly gave curative instructions (cf., People v Brewer, 94 AD2d 812, 813), which were also reiterated in the charge to the jury. We think it also worth noting that the prosecutor’s rhetorical question asked of the jury, "Did [defendant] tell you that [he is not guilty] under oath?”, was a fair response to defense counsel’s representation to the jury that defendant’s pretrial plea of not guilty was "the strongest evidence” and "testimony” in the case.

Defendant’s remaining arguments are likewise without merit. As defendant executed a valid waiver of immunity after being fully informed that anything he said might be used against him later in a court of law, the People properly used his Grand Jury testimony in their case-in-chief (see, People v Castillo, 3 AD2d 963). Given that the indictment and arrest occurred almost three years after the alleged crimes were committed and that one of the victims was a troubled youth with a learning disorder and brain damage, the time frames set forth in counts 4 to 7 of the indictment respecting when the crimes occurred were reasonable (see, People v Keindl, 68 NY2d 410, 419).

Contrary to defendant’s perception, County Court did not err in denying his motion for a severance. The crimes charged are "the same or similar in law” (CPL 200.20 [2] [c]), each victim testified about separate sexual encounters with defendant, an appropriate jury charge was given and the proof was not so confusing that the jury was unable to consider the evidence pertaining to each event separately (see, People v Casiano, 138 AD2d 892, 894, lv denied 72 NY2d 857) as manifested by the fact that the jury acquitted defendant of two counts of the indictment, sodomy in the first degree and sexual abuse in the third degree (see, People v Streitferdt, 169 AD2d 171, 176, lv denied 78 NY2d 1015). And as the testimony established that defendant showed X-rated, pornographic films depicting sexual intercourse and oral sex to three 15-year-old boys and masturbated in front of two of them, the proof is devastating that the crime of endangering the welfare of these children was committed (see, Penal Law § 260.10; People v Bergerson, 17 NY2d 398, 403-404).

Regarding Penal Law § 130.40 (2), we have no misgivings that setting the age of consent at 17 years is a rational way for New York to protect minors from the unpropitious consequences of sexual acts, even if consensual (see, People v Dozier, 72 AD2d 478, 479, affd 52 NY2d 781); hence the statute is constitutional (supra, at 480-481). Finally, inasmuch as the sentences imposed, consecutive prison terms of lVs to 4 years on each of the five sodomy counts and concurrent terms of one year on each count of endangering the welfare of a child, are within the statutory guidelines, we do not find them harsh and excessive in this case. In view of the fact that defendant was convicted of five separate counts of third degree sodomy for five distinct sexual acts occurring on five different days, County Court cannot be said to have acted imprudently in directing that these sentences be served consecutively (see, People v Day, 73 NY2d 208, 212).

Weiss, P. J., Levine and Mercure, JJ., concur.