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People v. Fulton

13 A.D.3d 1217 Court N.Y. App. Div. Decision date 2004-12-30 English

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p. 1217
The People of the State of New York, Respondent, v Alvin Fulton, Jr., Also Known as Shaik S., Also Known as Shaikh S. Abdmuqtadir, Appellant.
[786 NYS2d 760]

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered April 12, 2002. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Defendant appeals from a judgment convicting him, upon a jury verdict, of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]). The record does not support the contention that defendant was arraigned on the indictment before it was filed. In any event, case law establishes that the language of CPL 190.65 (3) that requires the filing of the indictment is directory, not mandatory, and that

p. 1218
dismissal of the indictment would not be warranted even in a case of its nonfiling (see People v Cade, 74 NY2d 410 , 416 [1989]; Dawson v People, 25 NY 399 , 405-406 [1862]; see also People v Brancoccio, 83 NY2d 638 , 642-643 [1994], affg 189 AD2d 525 [1993]; see generally People v Montanez, 90 NY2d 690 , 694 [1997]). Defendant was not deprived of fair notice of the charges against him (see People v Colf, 286 AD2d 888 , 888-889 [2001], lv denied 97 NY2d 655 [2001]; see also People v Palmer, 7 AD3d 472 [2004], lv denied 3 NY3d 710 [2004]; People v Lamphier, 302 AD2d 864 , 865-866 [2003], lv denied 99 NY2d 656 [2003]; People v McLoud, 291 AD2d 867 , 868 [2002], lv denied 98 NY2d 678 [2002]; see generally Penal Law § 130.75). The verdict is not against the weight of the evidence (see Colf, 286 AD2d at 889 ; see generally People v Bleakley, 69 NY2d 490 , 495 [1987]).

We have considered the contentions raised in defendant’s pro se supplemental brief and conclude that they are without merit. Present—Hurlbutt, J.P., Scudder, Kehoe, Smith and Hayes, JJ.

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