BOGAR, MELVIN, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
613
KA 09-02049
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MELVIN BOGAR, DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MELVIN BOGAR, DEFENDANT-APPELLANT PRO SE.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered August 23, 2006. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(four counts), course of sexual conduct against a child in the second
degree (two counts), course of sexual conduct against a child in the
first degree and endangering 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, inter alia, four counts of sexual abuse in the
first degree (Penal Law § 130.65 [3]) and course of sexual conduct
against a child in the first degree (§ 130.75 [1] [a]). The
conviction arises out of defendant’s sexual abuse of three sisters and
two of their friends, who were also sisters, ranging in age from 9 to
15 years old. We reject defendant’s contention that County Court
erred in allowing a police detective to testify that a videotape
recorded by defendant depicted some illegal conduct. Although as a
general rule a witness should not be permitted to testify with respect
to his or her opinion regarding an issue that is within the jury’s
exclusive province as the ultimate finder of fact (see generally
People v Machiah, 60 AD3d 1081; People v Jones, 51 AD3d 690, 692),
defendant opened the door to the challenged testimony on his recross-
examination of the detective. Further, “ ‘the court provided the jury
with appropriate limiting instructions immediately after the
challenged testimony was elicited,’ thus minimizing any potential
prejudice to defendant” (People v Bassett, 55 AD3d 1434, 1436, lv
denied 11 NY3d 922; see People v Johnson, 45 AD3d 606, lv denied 9
NY3d 1035). In any event, any such error is harmless inasmuch as the
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KA 09-02049
evidence of defendant’s guilt was overwhelming and there was no
significant probability that he would have been acquitted but for the
error (see generally People v Crimmins, 36 NY2d 230, 241-242).
Defendant further contends that the court erred in allowing the
People to bolster the testimony of the victims through the testimony
of certain witnesses with respect to the victims’ out-of-court
statements regarding the abuse. Defendant failed to object to several
of the challenged statements and thus failed to preserve for our
review his contention with respect to them (see People v Comerford, 70
AD3d 1305), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We conclude that the remaining statements fell
within recognized exceptions to the rule against hearsay and thus did
not constitute improper bolstering (see Comerford, 70 AD3d 1305; see
generally People v Buie, 86 NY2d 501, 510; People v Stevens, 57 AD3d
1515, lv denied 12 NY3d 822). We reject defendant’s contention that
the court erred in denying his motion to sever the counts of the
indictment involving one set of sisters from the counts involving the
other set of sisters. “ ‘Trial courts must be afforded reasonable
latitude in exercising discretion in [severance] matters and[,] in
doing so, must weigh the public interest in avoiding duplicative,
lengthy and costly trials against defendant’s right to a fair trial
free of undue prejudice’ ” (People v McKinnon, 15 AD3d 842, 843, lv
denied 4 NY3d 888). We perceive no abuse of the court’s discretion in
this case (see People v Scott, 32 AD3d 1178, lv denied 8 NY3d 884;
People v Daymon, 239 AD2d 907, lv denied 94 NY2d 821).
Contrary to defendant’s further contention, the evidence is
legally sufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Finally, although defendant was 75 years old when he was sentenced and
had no prior sexual offenses on his record, we conclude that the
aggregate sentence of 25 years in prison is not unduly harsh or severe
in light of the depravity of defendant’s conduct and his refusal to
accept responsibility.
Entered: May 6, 2011 Patricia L. Morgan
Clerk of the Court