Opinion
October 24, 1989
Appeal from the Supreme Court, New York County (Martin H. Rettinger, J.).
Defendant contends that, pursuant to Brady v Maryland ( 373 U.S. 83), the fact that the People's eyewitness was only nine years old should have been disclosed prior to trial as exculpatory material (People v Cwikla, 46 N.Y.2d 434). The theory advanced by defendant necessarily intimates that the court should entertain the presumption that any testimony given by a child of nine is inherently unreliable. This is a suggestion we flatly reject.
Defendant further asserts that the name and address of the People's eyewitness should have been disclosed prior to trial. Discovery of the names and addresses of witnesses is a matter which is entrusted to the sound discretion of the Trial Judge (People v Andre W., 44 N.Y.2d 179, 185). Given the tender years of the People's eyewitness and the potential for intimidation, it cannot be said that the Judge abused his discretion in denying discovery of the witness's name and address (CPL 240.50; People v Rivera, 119 A.D.2d 517, 519-520 [dictum]).
We note that, at the trial, the Judge conducted a proper voir dire to ascertain, to his satisfaction, the capacity of the child to comprehend the nature of an oath (CPL 60.20). Defendant's assertion to the contrary notwithstanding, there is no statutory or constitutional requirement that his counsel participate in the voir dire (CPL 60.20; People v Byrnes, 33 N.Y.2d 343, 350-351).
Defendant's other contentions have been examined and found to be without merit.
Concur — Murphy, P.J., Kassal, Rosenberger, Ellerin and Rubin, JJ.