PEOPLE v. COX (2002)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered March 14, 2001, convicting him of rape in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged under a single indictment with two counts of rape in the first degree and related offenses arising from two incidents, one which occurred on November 29, 1999, and the other on April 9, 2000, in which the defendant raped two different female complainants.   The trial court properly denied the defendant's severance motion because he failed to demonstrate that there was substantially more proof of one incident, as compared to the other, and that there was a substantial likelihood that the jury would be unable to consider separately the proof as it related to each incident (see CPL 200.20 [3] [a];  People v. Hall, 169 A.D.2d 778, 778-779, 565 N.Y.S.2d 144;  People v. Moses, 169 A.D.2d 786, 786-787, 565 N.Y.S.2d 154).   Moreover, the fact that sex crimes are involved in both incidents did not provide a sufficient basis to require a severance (see People v. O'Dell, 185 A.D.2d 901, 902, 587 N.Y.S.2d 859;  People v. Hall, 169 A.D.2d 778, 565 N.Y.S.2d 144).   The defendant does not argue that he had important testimony to give concerning one incident and a need to refrain from testifying as to the other (see CPL 200.20[3][b] ).

The trial court properly limited the defendant's cross-examination of the complainants (see CPL 60.42;  People v. Williams, 81 N.Y.2d 303, 311, 598 N.Y.S.2d 167, 614 N.E.2d 730;  People v. Mandel, 48 N.Y.2d 952, 953, 425 N.Y.S.2d 63, 401 N.E.2d 185;  People v. Crawford, 143 A.D.2d 141, 142, 531 N.Y.S.2d 598).   Furthermore, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of both counts of rape in the first degree, one by forcible compulsion and the other while the complainant was physically helpless (see People v. Maysonet, 178 A.D.2d 558, 577 N.Y.S.2d 465;  People v. Solorzano, 163 A.D.2d 434, 559 N.Y.S.2d 20;   People v. Irving, 151 A.D.2d 605, 605-606, 542 N.Y.S.2d 693).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).

The defendant's remaining contention is without merit.