| People v Ogborn |
| 2008 NY Slip Op 10305 [57 AD3d 1430] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel Ogborn,Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), for respondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered October10, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree,attempted sexual abuse in the first degree, sexual abuse in the second degree (two counts) andendangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of one counteach of sexual abuse in the first degree (Penal Law § 130.65 [3]) and attempted sexual abuse inthe first degree (§§ 110.00, 130.65 [3]) and two counts each of sexual abuse in thesecond degree (§ 130.60 [2]) and endangering the welfare of a child (§ 260.10 [1]). Wereject the contention of defendant that County Court erred in denying his motion to sever the counts ofthe indictment concerning one victim from those concerning the other victim. Contrary to the contentionof defendant, we conclude that he "failed to meet his burden of submitting sufficient evidence ofprejudice from the joinder to establish good cause to sever" (People v Cassidy, 16 AD3d 1079, 1081 [2005], lv denied 5NY3d 760 [2005]; see CPL 200.20 (3); People v Vasquez, 19 AD3d 1103 [2005], lv denied 5 NY3d811 [2005]).
We also reject the contention of defendant that the court erred in refusing to allow defense counselto cross-examine one of the victims with respect to her failure to indicate in her statement to the policethat she was able to identify defendant as the individual touching her because she smelled beer andcigarettes on his person when she so testified at trial. An omission of fact in a prior statement may notbe used for impeachment purposes unless it is shown that "at the prior time the witness' attention wascalled to the matter and that he [or she] was specifically asked about the facts embraced in the questionpropounded at trial" (People v Bornholdt, 33 NY2d 75, 88 [1973], cert denied 416US 905 [1974]). Here, defendant failed to make that showing (see People v Keys, 18 AD3d 780, 781 [2005], lv denied 5NY3d 807 [2005]; see also People vBroadhead, 36 AD3d 423, 424 [2007], lv denied 8 NY3d 919 [2007]).
Contrary to the further contention of defendant, the verdict is not against the weight of the [*2]evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The testimony of the People's witnesses was not " 'so unworthy of belief as to be incredible asa matter of law' . . . , and thus it cannot be said that the jury failed to give the evidence theweight it should be accorded" (People vWoods, 26 AD3d 818, 819 [2006], lv denied 7 NY3d 765 [2006]; see generallyBleakley, 69 NY2d at 495). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.