Opinion
April 25, 1994
Appeal from the County Court, Suffolk County (Namm, J.).
Ordered that the judgments are affirmed.
With respect to Indictment No. 2063/89, the County Court properly determined that the victim was a vulnerable child witness within the meaning of CPL 65.20 based upon the testimony of an expert in child abuse and that of the victim's mother, which collectively established, by clear and convincing evidence, four of the twelve factors cited in CPL 65.20 (9) (see, People v Cintron, 75 N.Y.2d 249, 267; People v Lindstadt, 174 A.D.2d 696, 697; People v Guce, 164 A.D.2d 946, 947). The County Court also properly administered the oath to the child witness after determining that he understood the nature of an oath, the difference between a truth and a lie and understood the consequences of telling a lie (see, People v Morales, 80 N.Y.2d 450, 452-453; People v Fuller, 50 N.Y.2d 628, 636; People v Nisoff, 36 N.Y.2d 560, 565-567; see also, Matter of Ralph D., 163 A.D.2d 752, 753).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15). Contrary to the defendant's claim, penetration is not an element of the crime of sodomy (see, People v Lipinski, 159 A.D.2d 860, 861-862; People v Francis, 153 A.D.2d 901, 902; People v Griffith, 80 A.D.2d 590, 591). The defendant's claim regarding the prosecutor's summation is not preserved for appellate review in the absence of a request for a curative instruction (see, CPL 470.05; People v Tardbania, 72 N.Y.2d 852; People v Glover, 60 N.Y.2d 783, 785, cert denied 466 U.S. 975), and we decline to reach this issue in the interest of justice.
With respect to Indictment No. 488/90, the defendant's claims that the court improperly marshaled the evidence on intoxication and improperly instructed the jurors on the seriousness of their task in its supplemental instruction are unpreserved for appellate review (see, CPL 470.05; People v Torres, 87 A.D.2d 876). The defendant's claim regarding the court's Allen charge (see, Allen v United States, 164 U.S. 492) is unpreserved for appellate review and, in any event, we find that the supplemental charge was balanced and not coercive (see, People v Ford, 78 N.Y.2d 878, 880; People v Green, 202 A.D.2d 186; People v Bowman, 194 A.D.2d 379).
We have considered the defendant's remaining contentions and find them to be without merit (see, People v Suitte, 90 A.D.2d 80). Rosenblatt, J.P., Miller, Krausman and Florio, JJ., concur.