Opinion
February 1, 1991
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: A photograph of the infant victim's vagina was properly admitted into evidence. Although it was prejudicial, the photo was probative on the issue of penetration, corroborated the victim's testimony, and illustrated the medical testimony (see, People v Pobliner, 32 N.Y.2d 356, 369, cert denied 416 U.S. 905; People v Brakefield, 156 A.D.2d 1004, lv denied 75 N.Y.2d 917). Defendant failed to preserve for review any issue concerning the propriety of the court's charge. In any event, the court's interested witness charge was proper in all respects (see, People v Agosto, 73 N.Y.2d 963, 967). Defendant's seven-year-old son, who was under the age of consent, was not "potentially subject to sanctions of a penal character" for his participation in any sexual activity (People v Fielding, 39 N.Y.2d 607, 610). Consequently, the court did not err by not charging the jury that the child was an accomplice whose testimony required corroboration. Upon our review of the record, we determine that the victim's testimony was sufficiently corroborated (see, People v Groff, 71 N.Y.2d 101), and that the convictions are supported by sufficient evidence and are not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490).