PEOPLE v. McKINNON (2005)

 On appeal from a judgment convicting him upon a jury verdict of three counts each of sodomy in the first degree (Penal Law former § 130.50[1], [4] ) and endangering the welfare of a child (§ 260.10[1] ), and four counts of sexual abuse in the first degree (§ 130.65[1] ), defendant contends that the evidence is legally insufficient to support the conviction.   Defendant has preserved his contention for our review only with respect to the sodomy counts (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, we conclude that defendant's contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People presented the testimony of the victims establishing each element of the crimes charged, and the victims identified defendant as the perpetrator.   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally id.).   Great deference is accorded to the jury's resolution of credibility issues (see People v. Gritzke, 292 A.D.2d 805, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4), and it cannot be said herein that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the further contention of defendant that County Court erred in denying his motion to sever counts 1 through 7 from counts 8 through 14 of the indictment.   Counts 1 through 7 involved an attack on two victims on August 27, 2000, while counts 8 through 14 involved an attack on a victim that occurred on March 10, 2001.  “There was no substantial difference in the quantum of proof presented with respect to the separate sexual assaults, and defendant made no claim that he had important testimony to offer [regarding the attack on August 27, 2000] but had [a] genuine need to refrain from testifying regarding the [attack on March 10, 2001]․ The assertion that the trier of fact ․ would be unable to consider separately the evidence pertaining to each [attack] was purely speculative” (People v. McDougald, 155 A.D.2d 867, 867, 547 N.Y.S.2d 478, lv. denied 75 N.Y.2d 870, 553 N.Y.S.2d 301, 552 N.E.2d 880;  see People v. Capozzi, 152 A.D.2d 985, 986, 544 N.Y.S.2d 95).   Additionally, we note that “the possibility of prejudice was limited by the court's curative instruction” (People v. Mazzu, 134 A.D.2d 890, 891, 522 N.Y.S.2d 55, lv. denied 70 N.Y.2d 1008, 526 N.Y.S.2d 943, 521 N.E.2d 1086). “Trial courts must be afforded reasonable latitude in exercising discretion in [severance] matters and in doing so, must weigh the public interest in avoiding duplicative, lengthy and costly trials against defendant's right to a fair trial free of undue prejudice” (People v. Streitferdt, 169 A.D.2d 171, 176, 572 N.Y.S.2d 893, lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069, citing People v. Lane, 56 N.Y.2d 1, 451 N.Y.S.2d 6, 436 N.E.2d 456).

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: