Opinion
July 14, 1997
Appeal from the County Court, Rensselaer County (McGrath, J.).
Defendant was indicted on charges of sodomy in the first degree, sexual abuse in the first degree and endangering the welfare of a child. Following a jury trial, defendant was found guilty as charged and sentenced to concurrent prison terms of 8 1/3 to 25 years on the sodomy conviction and 2 to 6 years on the sexual abuse conviction. He was also sentenced to a concurrent one-year jail term on the endangering the welfare of a child conviction. Defendant appeals.
Defendant contends that County Court erred in permitting the victim, age nine at the time of the trial, to testify under oath. Upon our review of the voir dire conducted by the court, it is apparent that the victim understood the concept and obligations of an oath, the difference between truth and falsity, and the consequences of giving false testimony (see, CPL 60.20). Accordingly, he was competent to give sworn testimony.
Defendant next contends that County Court should have redacted portions of his written confession to omit references to a 1992 act of sodomy on the victim as the same constituted evidence of a prior, uncharged crime which is inadmissible under the principles laid down in People v. Ventimiglia ( 52 N.Y.2d 350) and People v Molineux ( 168 N.Y. 264). In his written statement to police, defendant admitted that he committed acts of sodomy on the victim during the summer of 1992 and the summer of 1993. Defendant, however, was only indicted on the sodomy committed during July 1993 (compare, People v. Morin, 192 A.D.2d 791, lv denied 81 N.Y.2d 1077).
County Court found that corrections made by defendant to his statement could have been the result of a mistake on his part as to the year of the charged crime. County Court concluded that whether the statement contained an admission to a separate 1992 act of sodomy, thereby constituting an uncharged crime, or whether it was a mistake by defendant as to the year of the charged crime was an issue of fact for the jury. This was error. The admissibility of a defendant's prior criminal or immoral conduct poses a question of law for the trial court to determine after conducting a hearing satisfying the requirements of People v. Ventimiglia (supra) (see, e.g., People v. Hudy, 73 N.Y.2d 40, 54-55). The references to a possible uncharged crime should have been the subject of a hearing to determine whether they should have been redacted.
Upon our review of the record, however, we conclude that the proof of guilt is overwhelming and there is no significant probability that defendant otherwise would have been acquitted had the ambiguous statements been redacted (see, People v. Cook, 42 N.Y.2d 204, 207; People v. Gates, 234 A.D.2d 941, lv denied 89 N.Y.2d 1011; People v. Holloway, 185 A.D.2d 646, lv denied 80 N.Y.2d 1027; cf., People v. Lewis, 69 N.Y.2d 321; People v. Setless, 213 A.D.2d 900, lv denied 86 N.Y.2d 740; People v. Burke, 170 A.D.2d 1021, lv denied 77 N.Y.2d 959; People v. Richardson, 137 A.D.2d 105). This evidence consisted of the sworn testimony of the victim, who detailed the sexual acts perpetrated upon him by defendant at the latter's apartment in early July 1993, and the victim's younger brother, who corroborated that the victim and defendant were alone in defendant's bedroom in early July 1993. Specifically, the brother testified that "[defendant] put me and [my other brother] out of the bedroom on the Nintendo, and took [the victim] in and wouldn't let us in the bedroom". There was also testimony from defendant's former roommate to whom defendant admitted confessing "to the molestation of [the victim]" and stated that "he didn't mean for it to happen, but that [the victim] was the first and only one and that he never had a child affect him that way", as well as testimony from a police officer who overheard defendant state on the telephone shortly after giving his written statement to police that "I did it. There is no reason to lie about it."
Finally, defendant argues that it was improper for County Court to engage in an ex parte communication with the Assistant District Attorney concerning alleged perjured testimony by the victim's mother. Although improper (see, People v. Williams, 162 A.D.2d 649, lv denied 76 N.Y.2d 897; People v. Paul, 140 A.D.2d 884), County Court thereafter met in chambers with the Assistant District Attorney, defendant and defense counsel to discuss defendant's options in light of the possibly perjured testimony. Defendant did not object to the initial ex parte communication (see, People v. Siegelson, 19 N.Y.2d 889, amended 19 N.Y.2d 1018, cert denied 389 U.S. 932), nor did the communication deny defendant a fair trial or the opportunity to be present at a material stage of the trial. The discussion between County Court and the Assistant District Attorney (cf., People v. Ortega, 78 N.Y.2d 1101, 1102) did not affect defendant's opportunity to defend his case (see, e.g., People v. Aguilera, 82 N.Y.2d 23, 33; People v. Morales, 80 N.Y.2d 450, 456). Moreover, our review of the record discloses no prejudice to defendant as a result of the ex parte communication or County Court's handling of the entire matter, as the court permitted defense counsel to reopen defendant's case and reexamine the victim's mother as a hostile witness. We are confident that the fairness and the integrity of the trial were not affected (see, People v Siegelson, supra) and, contrary to defendant's contention, it was not necessary for County Court to sua sponte declare a mistrial.
We have reviewed defendant's remaining contentions and find that they are either unpreserved for review or lacking in merit.
Cardona, P. J., Mercure and White, JJ., concur.
Ordered that the judgment is affirmed.