Opinion
No. KA 08-01560.
February 11, 2010.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered May 2, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and endangering the welfare of a child.
MICHAEL B. JONES, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SUSAN H. SADINSKY OF COUNSEL), FOR RESPONDENT.
Present: Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.
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 assault in the second degree (Penal Law § 120.05) and endangering the welfare of a child (§ 260.10 [J.]). Contrary to defendant's contention, Supreme Court properly allowed the five-year-old victim to give unsworn testimony ( see People v Paul, 48 AD3d 833, lv denied 10 NY3d 868; People v Miller, 295 AD2d 746, 747-748). Although the victim did not understand the nature of an oath and thus could not give sworn testimony, he possessed "sufficient intelligence and capacity" to give unsworn evidence (CPL 60.20; see People v Raymond, 60 AD3d 1388, lv denied 12 NY3d 919). Defendant failed to preserve for our review his further contention that the victim's unsworn testimony was not sufficiently corroborated ( see Raymond, 60 AD3d 1388; People v McLoud, 291 AD2d 867, lv denied 98 NY2d 678) and, in any event, that contention is without merit ( see Raymond, 60 AD3d 1388; Paul, 48 AD3d 833; see generally CPL 60.20; People v Groff, 71 NY2d 101, 103-104, 109-110). Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that the victim sustained a physical injury ( see People v Hawkes, 39 AD3d 1209, 1210, lv denied 9 NY3d 844, 845; People v Sommerville, 30 AD3d 1093, 1095). 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 People v Bleakley, 69 NY2d 490, 495). Finally, the sentence is not unduly harsh or severe.