People v. Smith

— Judgment unanimously affirmed. Memorandum: Defendant was convicted of four counts of first degree sodomy involving the nine-year-old daughter of a woman who resided with defendant in his trailer. The indictment alleged that each incident occurred "on or about during the spring months of 1989.” Under the circumstances of this case, such allegations were sufficiently specific (see, CPL 200.50 [6]; People v Keindl, 68 NY2d 410, 420; People v Morris, 61 NY2d 290; People v Cangiano, 156 AD2d 575, lv denied 75 NY2d 964; People v Jones, 133 AD2d 972, lv denied 70 NY2d 956). The indictment was not duplicitous. None of the counts alleged multiple offenses, and the victim testified about separate incidents. Although the court erred in not charging that the victim’s mother was an accomplice as a matter of law (see, People v Sweet, 78 NY2d 263; People v Teitelbaum, 138 AD2d 647, 649), the error is harmless given the overwhelming evidence of defendant’s guilt (see, People v Crimmins, 36 NY2d 230; People v Torres, 160 AD2d 746, 747, lv denied 76 NY2d 897; People v Teitelbaum, supra; People v Sawyer, 107 AD2d 1045, 1046). Defendant’s sentence was less than the maximum and not excessive. (Appeal from Judgment of Oswego County Court, Brandt, J. — Sodomy, 1st Degree.) Present — Callahan, J. P., Green, Pine, Lawton and Davis, JJ.