         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1219
KA 11-00896
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRYL R. BROWN, DEFENDANT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC DOLAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 4, 2008. The judgment
convicted defendant, upon a nonjury verdict, of criminal sexual act in
the first degree and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, following
a nonjury trial, of criminal sexual act in the first degree (Penal Law
§ 130.50 [3]) and endangering the welfare of a child (§ 260.10 [1]),
defendant contends that Supreme Court erred in permitting a six-year-
old child to give sworn testimony. Contrary to the People’s
contention, the contention of defendant is preserved for our review.
We nevertheless conclude that it is without merit.

     The presumption that a child less than nine years old is
incapable of giving sworn testimony “is overcome . . . if the court is
satisfied that the child ‘understands the nature of the oath’ ”
(People v Morales, 80 NY2d 450, 453). The court’s determination of
competency is “necessarily individualistic in nature” (People v
Nisoff, 36 NY2d 560, 566), and it is subject to limited appellate
review, inasmuch as the trial court has the unique “opportunity to
view the witness[ and] to observe manner, demeanor and presence of
mind” (People v Parks, 41 NY2d 36, 46). Thus, we will not disturb the
court’s determination “absent a clear abuse of discretion” (People v
Rising, 289 AD2d 1069, 1070, lv denied 97 NY2d 732; see also People v
Thompson, 59 AD3d 1115, 1117, lv denied 12 NY3d 852, 860).

     Here, the court did not abuse its discretion in permitting the
child to give sworn testimony (see People v McIver, 15 AD3d 677, lv
denied 4 NY3d 888; People v Munroe, 307 AD2d 588, 591, lv denied 100
                                 -2-                             1219
                                                            KA 11-00896

NY2d 644; cf. People v McGrady, 45 AD3d 1395, lv denied 10 NY3d 813;
People v Davis, 304 AD2d 421, lv denied 100 NY2d 619). “Although [the
child] gave perfunctory answers to the court’s sometimes leading
questions, her testimony, as a whole, demonstrated that she understood
she had a moral duty to tell the truth” (People v Brill, 245 AD2d 384,
385, lv denied 91 NY2d 889; cf. People v Maldonado, 199 AD2d 563).
Even assuming, arguendo, that the child was improperly permitted to
give sworn testimony, we conclude that the error is harmless because
she would properly have been permitted to testify as an unsworn
witness (see CPL 60.20 [2]), and her testimony was sufficiently
corroborated by other evidence, including defendant’s own statements
(see People v Mendoza, 49 AD3d 559, 560, lv denied 10 NY3d 937;
McIver, 15 AD3d 677; People v Lynch, 216 AD2d 929, lv denied 87 NY2d
904; cf. Maldonado, 199 AD2d 563).

      Furthermore, even assuming, arguendo, that defendant’s challenge
to the sufficiency of the evidence is preserved for our review, we
conclude that it lacks merit (see generally People v Bleakley, 69 NY2d
490, 495). Viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s further contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). With respect to his statements to the police, defendant
contends that the court erred in refusing to suppress those statements
because the police investigator to whom he made the statements had an
initial conversation with him to build a rapport before advising him
of his Miranda rights. Defendant failed to preserve that contention
for our review (see People v Monroe, 39 AD3d 1276, lv denied 9 NY3d
867; see also People v Major, 195 AD2d 1051), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see Monroe, 39 AD3d 1276).

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
