Opinion
(1099) KA 01-00708.
September 28, 2001.
(Appeal from Judgment of Oneida County Court, Dwyer, J. — Sodomy, 2nd Degree.)
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, BURNS AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of four counts of sodomy in the second degree (Penal Law former § 130.45) and one count each of sexual abuse in the second degree (Penal Law § 130.60) and endangering the welfare of a child (Penal Law § 260.10). Defendant failed to preserve for our review his contention that, because the physician's opinion was based on an unidentified study that was not received in evidence ( see, CPL 470.05; People v. Reid, 281 A.D.2d 986), County Court erred in admitting the testimony of the physician who examined the victim. We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Contrary to defendant's further contention, the testimony of the expert that her findings were consistent with sexual abuse was properly admitted ( see, People v. Harris, 249 A.D.2d 775, 776; see also, People v. Taylor, 75 N.Y.2d 277, 288).
We reject defendant's contention that the sentences imposed on the convictions of four counts of sodomy in the second degree may not run consecutively. Each act of sodomy "involved a separate sexual act constituting a distinct offense" and thus the court properly imposed consecutive terms of incarceration ( People v. Gersten, 280 A.D.2d 487, 488; see, People v. Smithers, 255 A.D.2d 916, 917, lv denied 92 N.Y.2d 1054; see generally, Penal Law § 70.25). Finally, the sentence is neither unduly harsh nor severe.