People v. Kirkland

Judgment unanimously affirmed. Memorandum: County Court dismissed the first five counts of the indictment based upon the variance of one year between the time of the offenses alleged in the indictment and the People’s proof at trial (see, People v Bigda, 184 AD2d 993). Because that variance was not manifest until the complainant testified, there was no basis for dismissing those counts prior to the commencement of the trial. Any prejudice to defendant resulting from references to the dismissed counts during opening statements was obviated by the court’s instruction to the jury to disregard…