Opinion
March 13, 1998
Appeal from Judgment of Supreme Court, Erie County, Sheridan, J. — Sodomy, 1st Degree.
Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that his conviction should be reversed based upon prosecutorial misconduct. The prosecutor's conduct did not cause "`such substantial prejudice to the defendant that he has been denied due process of law'" (People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711, quoting People v. Mott, 94 A.D.2d 415, 419; see, People v. Tidwell, 207 A.D.2d 957, lv denied 84 N.Y.2d 1039). Further, the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the prosecutor's conduct (see, People v. Crimmins, 36 N.Y.2d 230, 241).
We reject the contention of defendant that Supreme Court abused its discretion in permitting the eight-year-old victim to testify under oath at trial. The determination whether an infant witness has testimonial capacity "`rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath'" (People v. Nisoff, 36 N.Y.2d 560, 566, quoting Wheeler v. United States, 159 U.S. 523, 524-525; see, People v. Young, 225 A.D.2d 339, lv denied 88 N.Y.2d 971). The record supports the determination of the court that the victim had sufficient intelligence and capacity to testify under oath (see, People v. Heck, 229 A.D.2d 931; People v. Roger S., 168 A.D.2d 581).
We have considered the remaining contention of defendant and conclude that it is without merit (see generally, People v. Feldt, 198 A.D.2d 788).