Opinion
November 10, 1987
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Callahan, Green, Pine and Balio, JJ.
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; People v. Glover, 57 N.Y.2d 61; People v. Green, 56 N.Y.2d 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 [b]; People v Andrews, 109 A.D.2d 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 A.D.2d 475, 476, lv denied 66 N.Y.2d 919; People v. Mack, 111 A.D.2d 186, 187-188, lv denied 66 N.Y.2d 616; People v. Simpkins, 110 A.D.2d 790, lv denied 66 N.Y.2d 618; cf., People v. Shapiro, 50 N.Y.2d 747; People v. Forest, 50 A.D.2d 260, 262). We have reviewed the other issues raised on appeal and find them without merit.