Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Darryl R. BROWN, Defendant–Appellant.
Trevett Cristo Salzer & Andolina P.C., Rochester (Eric Dolan of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
Trevett Cristo Salzer & Andolina P.C., Rochester (Eric Dolan of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him, following a nonjury trial, of criminal sexual act in the first degree (Penal Law § 130.50[3] ) and endangering the welfare of a child (§ 260.10[1] ), defendant contends that Supreme Court erred in permitting a six-year-old child to give sworn testimony. Contrary to the People's contention, the contention of defendant is preserved for our review. We nevertheless conclude that it is without merit.
The presumption that a child less than nine years old is incapable of giving
sworn testimony “is overcome ... if the court is satisfied that the child ‘understands the nature of the oath’ ” ( People v. Morales, 80 N.Y.2d 450, 453, 591 N.Y.S.2d 825, 606 N.E.2d 953). The court's determination of competency is “necessarily individualistic in nature” ( People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638), and it is subject to limited appellate review, inasmuch as the trial court has the unique “opportunity to view the witness[ and] to observe manner, demeanor and presence of mind” ( People v. Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 359 N.E.2d 358). Thus, we will not disturb the court's determination “absent a clear abuse of discretion” ( People v. Rising, 289 A.D.2d 1069, 1070, 735 N.Y.S.2d 680, lv. denied 97 N.Y.2d 732, 740 N.Y.S.2d 706, 767 N.E.2d 163; see also People v. Thompson, 59 A.D.3d 1115, 1117, 873 N.Y.S.2d 834, lv. denied 12 N.Y.3d 852, 860, 881 N.Y.S.2d 664, 672, 909 N.E.2d 587, 595).
Here, the court did not abuse its discretion in permitting the child to give sworn testimony ( see People v. McIver, 15 A.D.3d 677, 791 N.Y.S.2d 587, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979; People v. Munroe, 307 A.D.2d 588, 591, 763 N.Y.S.2d 691, lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431; cf. People v. McGrady, 45 A.D.3d 1395, 844 N.Y.S.2d 796, lv. denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812; People v. Davis, 304 A.D.2d 421, 760 N.Y.S.2d 12, lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 799 N.E.2d 625). “Although [the child] gave perfunctory answers to the court's sometimes leading questions, her testimony, as a whole, demonstrated that she understood she had a moral duty to tell the truth” ( People v. Brill, 245 A.D.2d 384, 385, 666 N.Y.S.2d 195, lv. denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029; cf. People v. Maldonado, 199 A.D.2d 563, 606 N.Y.S.2d 258). Even assuming, arguendo, that the child was improperly permitted to give sworn testimony, we conclude that the error is harmless because she would properly have been permitted to testify as an unsworn witness ( see CPL 60.20[2] ), and her testimony was sufficiently corroborated by other evidence, including defendant's own statements ( see People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364, lv. denied 10 N.Y.3d 937, 862 N.Y.S.2d 343, 892 N.E.2d 409; McIver, 15 A.D.3d 677, 791 N.Y.S.2d 587; People v. Lynch, 216 A.D.2d 929, 629 N.Y.S.2d 136, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264; cf. Maldonado, 199 A.D.2d 563, 606 N.Y.S.2d 258).
Furthermore, even assuming, arguendo, that defendant's challenge to the sufficiency of the evidence is preserved for our review, we conclude that it lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). With respect to his statements to the police, defendant contends that the court erred in refusing to suppress those statements because the police investigator to whom he made the statements had an initial conversation with him to build a rapport before advising him of his Miranda rights. Defendant failed to preserve that contention for our review ( see People v. Monroe, 39 A.D.3d 1276, 832 N.Y.S.2d 858, lv. denied 9 N.Y.3d 867, 840 N.Y.S.2d 897, 872 N.E.2d 1203; see also People v. Major, 195 A.D.2d 1051, 602 N.Y.S.2d 576), and we decline to exercise our power to review it as a matter of discretion in the interest of justice
( see Monroe, 39 A.D.3d 1276, 832 N.Y.S.2d 858).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.