In People v. Gonzales (148 Misc 2d 973 [Westchester County Ct 1990]), the court entertained and decided an untimely motion challenging the constitutionality of the statutory presumption precluding consent by an individual less than 17 years old to various sex acts by an adult. The Gonzales court, however, did not entertain the motion because, as the defendant claims, it involved a constitutional challenge. The court granted the motion because the relief sought was a jury instruction rather than dismissal, no hearing or undue delay were involved and the People asserted no prejudice.