PEOPLE v. OGBORN (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of one count each of sexual abuse in the first degree (Penal Law § 130.65[3] ) and attempted sexual abuse in the first degree (§§ 110.00, 130.65 [3] ) and two counts each of sexual abuse in the second degree (§ 130.60[2] ) and endangering the welfare of a child (§ 260.10[1] ).  We reject the contention of defendant that County Court erred in denying his motion to sever the counts of the indictment concerning one victim from those concerning the other victim.  Contrary to the contention of defendant, we conclude that he “ failed to meet his burden of submitting sufficient evidence of prejudice from the joinder to establish good cause to sever” (People v. Cassidy, 16 A.D.3d 1079, 1081, 791 N.Y.S.2d 259, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264;  see CPL 200.20(3);  People v. Vasquez, 19 A.D.3d 1103, 796 N.Y.S.2d 274, lv. denied 5 N.Y.3d 811, 803 N.Y.S.2d 40, 836 N.E.2d 1163).

 We also reject the contention of defendant that the court erred in refusing to allow defense counsel to cross-examine one of the victims with respect to her failure to indicate in her statement to the police that she was able to identify defendant as the individual touching her because she smelled beer and cigarettes on his person when she so testified at trial.  An omission of fact in a prior statement may not be used for impeachment purposes unless it is shown that “at the prior time the witness' attention was called to the matter and that he [or she] was specifically asked about the facts embraced in the question propounded at trial” (People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).  Here, defendant failed to make that showing (see People v. Keys, 18 A.D.3d 780, 781, 794 N.Y.S.2d 916, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159;  see also People v. Broadhead, 36 A.D.3d 423, 424, 827 N.Y.S.2d 138, lv. denied 8 N.Y.3d 919, 834 N.Y.S.2d 510, 866 N.E.2d 456).

Contrary to the further contention of defendant, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  The testimony of the People's witnesses was not “ ‘so unworthy of belief as to be incredible as a matter of law’ ․, and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Woods, 26 A.D.3d 818, 819, 810 N.Y.S.2d 274, lv. denied 7 N.Y.3d 756, 765, 819 N.Y.S.2d 882, 890, 853 N.E.2d 253, 261;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: