Opinion
10-04-2016
The PEOPLE of the State of New York, Respondent, v. Jose REYES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for respondent.
TOM, J.P., SWEENY, ANDRIAS, WEBBER, GESMER, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 20, 2010, as amended December 1, 2010, convicting defendant, after a jury trial, of sexual abuse in the first degree and two counts of endangering the welfare of a child, and sentencing him to an aggregate term of three years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations regarding either of the two victims.
The court properly permitted a victim who was eight years old at the time of the trial to give sworn testimony. The child's responses to the court's questions at a hearing established that she sufficiently understood the difference between truth and falsity, the significance of a promise to tell the truth, and the wrongfulness and consequences of lying (see People v. Nisoff, 36 N.Y.2d 560, 565–566, 369 N.Y.S.2d 686, 330 N.E.2d 638 [1975] ; People v. Cordero, 257 A.D.2d 372, 684 N.Y.S.2d 192 [1st Dept.1999], lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099 [1999] ). The court's thorough inquiry employed both leading and nonleading questions, and even if some of the child's responses exhibited difficulty in understanding the questions, those responses did not cast doubt on her swearability, when the colloquy is viewed as a whole.
The court properly admitted evidence of the then-six-year-old victim's disclosure of the incident to her mother, made about 12 hours after the crime. This qualified under the prompt outcry exception to the hearsay rule (see People v. McDaniel, 81 N.Y.2d 10, 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993] ), given the child's age and the surrounding circumstances.
Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).