Opinion
June 9, 1992
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), we find that the evidence was sufficient as a matter of law to support the verdict finding defendant guilty of the repeated forcible rape of his eight year old daughter, Christina, and the repeated beating of both Christina and her six year old sister, Catherine, between December of 1986 and December of 1987. Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence. (People v. Bleakley, 69 N.Y.2d 490.)
The defendant's exclusion from the courtroom during the testimony of the two child witnesses was a proper exercise of the court's discretion. We find that defendant waived his right to be present at trial, by deliberately and repeatedly, on four separate occasions, disrupting the proceedings. It was not until the court had warned the defendant that he would be removed if he continued his abusive behavior, that the court directed that the defendant be so removed from the courtroom (People v. Byrnes, 33 N.Y.2d 343, 349; People v. Byas, 173 A.D.2d 314, lv denied 78 N.Y.2d 1126).
Similarly, we find that the trial court properly determined, after extensive, separate, voir dires that the child witnesses, ages 10 and 8, respectively, were competent to testify under oath at trial. The voir dires unequivocally established that they fully understood the nature of the testimonial oath and had the intelligence and capacity to testify truthfully, thereby satisfying the statutory requirements of CPL 60.20 (2) (People v Parks, 41 N.Y.2d 36, 46; People v. Nisoff, 36 N.Y.2d 560, 565-566).
Moreover, the record supports the Huntley hearing court's finding that the defendant's statement to a caseworker for Special Services for Children, assigned to investigate the defendant's suspected child abuse, was freely and voluntarily given within the meaning of CPL 60.45, and was therefore admissible. The caseworker was not required to advise the defendant of his Miranda rights before speaking with him, since the filing of a child abuse petition did not trigger the defendant's right to counsel and, in any event, the caseworker was not engaged in law enforcement activity (People v. Smith, 62 N.Y.2d 306).
Finally, in view of the heinous nature of the defendant's crimes and the defendant's extensive criminal background, we do not find the sentence imposed to have been unduly harsh.
We have considered defendant's remaining arguments, including his pro se contentions, and find them to be without merit.
Concur — Carro, J.P., Milonas, Ellerin and Ross, JJ.