Opinion
2012-02-14
The PEOPLE, etc., respondent, v. Wilmer BATISTA, appellant.
Andrew W. Sayegh, Yonkers, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Andrew W. Sayegh, Yonkers, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cacace, J.), rendered January 25, 2011, convicting him of criminal sexual act in the first degree, sexual abuse in the first degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court improperly permitted the seven-year-old complainant to give sworn testimony is unpreserved for appellate review ( see CPL 470.05[2]; People v. Gillard, 7 A.D.3d 540, 541, 776 N.Y.S.2d 95). In any event, the Supreme Court providently exercised its discretion in determining that the child was competent to give sworn testimony ( see CPL 60.20; People v. Morales, 80 N.Y.2d 450, 453, 591 N.Y.S.2d 825, 606 N.E.2d 953; People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638). The examination of the child revealed that she possessed sufficient intelligence and capacity to testify ( see CPL 60.20 [1] ), and that she appreciated “the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished” (CPL 60.20[2]; see People v. Stalter, 77 A.D.3d 776, 909 N.Y.S.2d 516; People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364; People v. McIver, 15 A.D.3d 677, 678, 791 N.Y.S.2d 587; People v. Gillard, 7 A.D.3d at 541, 776 N.Y.S.2d 95).
The Supreme Court providently exercised its discretion in determining that an adverse inference charge was the appropriate sanction for the People's inadvertent loss of certain evidence ( see People v. Kelly, 62 N.Y.2d 516, 520–521, 478 N.Y.S.2d 834, 467 N.E.2d 498; People v. Gorham, 72 A.D.3d 1108, 1110, 900 N.Y.S.2d 141; People v. Conley, 70 A.D.3d 961, 897 N.Y.S.2d 135).
The defendant's contention that the testimony from the complainant's father and uncle did not fall within the scope of the prompt-outcry exception to the hearsay rule is unpreserved for appellate review, since the defendant failed to object or failed to make specific objections to the testimony of which he now complains ( see CPL 470.05[2]; People v. Stalter, 77 A.D.3d at 776–777, 909 N.Y.S.2d 516; People v. Brown, 302 A.D.2d 403, 753 N.Y.S.2d 901). In any event, the complained-of testimony fell within the scope of the prompt- outcry exception to the hearsay rule and did not exceed the allowable level of detail ( see People v. McDaniel, 81 N.Y.2d 10, 16–18, 595 N.Y.S.2d 364, 611 N.E.2d 265; People v. Stalter, 77 A.D.3d at 777, 909 N.Y.S.2d 516; People v. Bernardez, 63 A.D.3d 1174, 1175, 881 N.Y.S.2d 316; People v. Salazar, 234 A.D.2d 322, 323, 650 N.Y.S.2d 1002).
The defendant's contention that he was deprived of a fair trial due to prosecutorial misconduct in presenting the testimony of a certain police officer is unpreserved for appellate review and, in any event, without merit.