People v. Mazzu

134 A.D.2d 890, 522 N.Y.S.2d 55, 1987 N.Y. App. Div. LEXIS 51082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1987
• Status: Published

Opinion

— Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting defendant of two counts of first degree sexual abuse, defendant claims that the verdict was not supported by the evidence and that the trial court erred in not charging third degree sexual abuse as a lesser included offense, in not suppressing a pretrial showup identification and in not severing the two counts of the indictment. None of these claims has merit.

The verdict was amply supported by the testimony of the two boys, 12 and 14 years of age, who positively identified defendant and related that defendant forcibly subjected them to sexual contact. There was no reasonable view of the evidence that defendant could have been guilty of third degree, but not first degree, sexual abuse (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427). The court did not abuse its discretion in denying defendant’s motion for severance because the two counts were joinable as part of a single criminal venture (see, CPL 40.10 [2] [b]; People v Andrews, 109 AD2d 939) and the possibility of prejudice was limited by the court’s curative instruction and the fact that each count alleged a similar incident and was supported by equally strong proof (see, People v Gilliam, 112 AD2d 475, 476, lv denied 66 NY2d 919; People v Mack, 111 AD2d 186, 187-188, lv denied 66 NY2d 616; People v Simpkins, 110 AD2d 790, lv denied 66 NY2d 618; cf., People v Shapiro, 50 NY2d 747; People v Forest, 50 AD2d 260, 262). We have reviewed the other issues raised on appeal and find them without merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — sexual abuse, first degree.) Present — Dillon, P. J., Callahan, Green, Pine and Balio, JJ.