Opinion
Decided October 26, 1995
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, James R. Harvey, J.
Bernetta A. Bourcy, Canandaigua, for appellant.
R. Michael Tantillo, District Attorney of Ontario County, Canandaigua (Brian David Dennis of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. The Appellate Division's finding that defendant's confession was voluntary, a mixed question of law and fact, is supported by evidence in the record and therefore beyond this Court's further review (see, People v Harrison, 57 N.Y.2d 470, 477; People v Johnson, 40 N.Y.2d 882, 883). The trial court did not abuse its discretion in permitting the four-year-old victim to give unsworn testimony after having conducted an inquiry outside the presence of the jury and determining that the child understood the difference between a truth and a lie and was competent to testify (see, CPL 60.20; People v Parks, 41 N.Y.2d 36; People v Nisoff, 36 N.Y.2d 560, 566).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.