Opinion
July 12, 1996
Appeal from the Supreme Court, Monroe County, Affronti, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment following a jury trial convicting him of three counts of endangering the welfare of a child. Supreme Court did not abuse its discretion in denying defendant's motion for a mistrial ( see, People v. Ortiz, 54 N.Y.2d 288, 292). The court's curative instruction sufficiently eliminated any prejudice that defendant may have suffered from the brief testimony concerning his uncharged criminal activity ( see, People v. Santiago, 52 N.Y.2d 865; see also, People v. Brooks, 213 A.D.2d 999, lv denied 85 N.Y.2d 970; see generally, People v. Arce, 42 N.Y.2d 179, 187).
The court did not err in denying defendant's motion to strike the testimony of a prosecution witness based upon the prosecution's failure to supply defendant with a copy of the witness's office notes. Those notes constitute Rosario material and should have been delivered to the defense prior to the prosecutor's opening statement ( see, CPL 240.45 [a]). However, it is well settled that, where the People merely delay in providing Rosario material, as opposed to failing to provide it, reversal is not required unless the defense is "substantially prejudiced by the delay" ( People v. Ranghelle, 69 N.Y.2d 56, 63; see also, People v. Martinez, 71 N.Y.2d 937, 940). The court properly found that defendant did not make the required showing of substantial prejudice ( see, People v. Smith, 190 A.D.2d 1022, lv denied 81 N.Y.2d 976; cf., People v. Thompson, 71 N.Y.2d 918). The notes in question concerned one office visit and were less than two pages in length, and defendant was afforded a brief recess to review the notes to allow him a fair opportunity to cross-examine the witness.
We further conclude that the court did not err in allowing the sworn testimony of the infant victims, two nine-year-old girls. The court appropriately determined their testimonial capacity and ability to understand the nature of an oath by evaluating their intelligence, and their "`appreciation of the difference between truth and falsehood, as well as [their] duty to tell the former'" ( People v. Nisoff, 36 N.Y.2d 560, 566, quoting Wheeler v. United States, 159 U.S. 523, 524). The determination of a child witness's 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, supra, at 566, quoting Wheeler v United States, supra, at 524-525). The decision of a trial court will not be disturbed on appellate review unless clearly erroneous ( People v. Nisoff, supra, at 566; see also, People v Parks, 41 N.Y.2d 36, 46).
Finally, we reject defendant's contentions that the proof is legally insufficient and that the verdict is against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).