SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

961 

KA 14-01548 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHAD J. COLSRUD, DEFENDANT-APPELLANT. 

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Steuben County Court (Marianne

Furfure, A.J.), rendered December 9, 2013. The judgment convicted

defendant, upon a jury verdict, of endangering the welfare of a child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of endangering the welfare of a child (Penal Law 

§ 260.10 [1]). Defendant contends that the verdict is legally

repugnant inasmuch as the jury acquitted him of five counts of rape in

the third degree (§ 130.25 [2]), one count of criminal sexual act in

the third degree (§ 130.40 [2]), and three counts of unlawfully

dealing with a child in the first degree (§ 260.20 [2]). We reject

that contention. When viewed in light of the elements of each crime

as charged to the jury without regard to the accuracy of those

instructions (see People v Tucker, 55 NY2d 1, 4, 7-8, rearg denied 55

NY2d 1039), none of the acquittals negates an essential element of the

crime of endangering the welfare of a child (see People v Strickland,

78 AD3d 1210, 1211; see generally People v Muhammad, 17 NY3d 532, 538-

539).

Defendant also contends that, as instructed by the court, the

jury was precluded from finding that he endangered the welfare of the

victim under count two by any conduct beyond that which was alleged in

the indictment with respect to rape in the third degree and criminal

sexual act in the third degree. We reject that contention. Although

the People concede defendant’s interpretation of the court’s

instructions, such concession “does not . . . relieve us from the

performance of our judicial function and does not require us to adopt

the [interpretation] urged upon us” (People v Berrios, 28 NY2d 361,

366-367). We construe the instruction at issue to be permissive
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KA 14-01548 

rather than restrictive, and we therefore conclude that the

instruction did not preclude the jury from considering evidence of

other acts “likely to be injurious to the physical, mental or moral

welfare” of the victim beyond the specific acts alleged in the other

counts of the indictment (Penal Law § 260.10 [1]; see generally

Strickland, 78 AD3d at 1211-1212). 

We reject defendant’s further contention that he was convicted on

a theory different from that set forth in the indictment. We

recognize the general rule that where a court’s jury instruction on a

particular count erroneously contains an additional theory that

differs from the theory alleged in the indictment, as limited by the

bill of particulars, and the evidence adduced at trial could have

established either theory, reversal of the conviction on that count is

required because there is a possibility that the jury could have

convicted the defendant upon the uncharged theory (see People v Grega,

72 NY2d 489, 496). Here, count two of the indictment alleged that

defendant endangered the child by subjecting her to “sexual contact”

(see Penal Law § 130.00 [3]). The People’s bill of particulars did

not narrow the specific type of “sexual contact” alleged in count two

(cf. People v Duell, 124 AD3d 1225, 1227, lv denied 26 NY3d 967), and

the indictment did not limit the People to a particular act of “sexual

contact” at trial (see generally People v McGrew, 103 AD3d 1170,

1174). The court instructed the jury under count two that the People

were required to prove that defendant endangered the child by

subjecting her to “sexual conduct,” which the court defined in

accordance with Penal Law § 130.00 (10). Inasmuch as the term “sexual

contact” is broad enough to include all forms of “sexual conduct,” we

conclude that defendant received the requisite “ ‘fair notice of the

accusations against him’ ” (Grega, 72 NY2d at 495; see People v Abeel,

67 AD3d 1408, 1410), and that there is no possibility that the jury

could have convicted the defendant upon an uncharged theory. 

Viewing the evidence in light of the elements of the crime of

endangering the welfare of a child as charged to the jury (see People

v Danielson, 9 NY3d 342, 349), we further conclude that the verdict is

not against the weight of the evidence (see generally People v

Bleakley, 69 NY2d 490, 495).

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court