[*2]Appeal by the People from an order of the District Court, Suffolk County (P. Filiberto, J.), entered May 17, 2002, granting defendant's motion for a trial order of dismissal (CPL 290.10) following the jury's verdict of guilty of menacing in the second degree (Penal Law § 120.14).

Order unanimously affirmed.

In the case at bar, the testimony of the sole witness for the People, an 84-year-old woman, failed, as the trial court noted, to establish any specific date of the occurrence of the alleged acts. Although time of the offense is not a material element. of the offense charged, the People, under the circumstances, were required to prove that the offense was committed prior to commencement of prosecution (see People v Cunningham, 48 NY2d 938). After viewing the evidence in the light most favorable to the People, it is clear that the People failed to offer any evidence that would satisfy said criteria (see People v Contes, 60 NY2d 620).
Decision Date: October 01, 2003