Opinion
April 29, 1998
(Appeal from Judgment of Steuben County Court, Bradstreet, J. — Sexual Abuse, 1st Degree.)
Present — Denman, P.J., Pine, Wisner, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of three counts of sexual abuse in the first degree (Penal Law § 130.65) in connection with three separate incidents involving two eight-year-old victims. By failing to move for a severance, defendant failed to preserve for our review his contention that count one of the indictment was improperly joined with counts two and three ( see, People v. Omrami, 155 A.D.2d 369, 370, lv denied 75 N.Y.2d 922; People v. Crutchfeld, 134 A.D.2d 508, lv denied 71 N.Y.2d 894). In any event, the offenses were properly joinable pursuant to CPL 200.20 (2) (c) ( see, People v. Daymon, 239 A.D.2d 907). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to move for a severance ( see, People v. Jones, 224 A.D.2d 334, 335, lv denied 88 N.Y.2d 937; People v. Doze, 151 A.D.2d 997, lv denied 74 N.Y.2d 808).
Defendant also failed to preserve for our review his contention that his conviction is not supported by legally sufficient evidence ( see, People v. Gray, 86 N.Y.2d 10, 19). We decline to exercise our discretion to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15). The jury's verdict is supported by the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct during summation, likewise, is not preserved for our review ( see, CPL 470.05; People v. Albert, 222 A.D.2d 1005, lv denied 88 N.Y.2d 844, 979). In any event, the isolated comment complained of was "within the wide rhetorical bounds granted to the prosecutor to comment upon the evidence or in response to defense counsel's summation" ( People v. Price, 144 A.D.2d 1013, lv denied 73 N.Y.2d 895; see, People v. Tolliver, 248 A.D.2d 988).
County Court did not abuse its discretion in imposing consecutive indeterminate terms of imprisonment on each count inasmuch as the record establishes that there were three separate incidents of sexual abuse ( see, People v. Beecher, 225 A.D.2d 943, 946; see generally, People v. Ramirez, 89 N.Y.2d 444, 451). The sentence is not unduly harsh or severe.