People v. Hughes , 521 N.Y.S.2d 945 ( 1987 )

— Judgment affirmed. Memorandum: We agree with defendant that the trial court erred in conducting the hearing directed by the Court of Appeals by failing to inquire and make a determination "whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to [the victim’s] prehypnotic recollection” (People v Hughes, 59 NY2d 523, 546), and by denying defendant’s application for permission to employ the services of a hypnosis expert to testify at the hearing. Nevertheless, we deem the error harmless. At trial the victim did not identify her assailant and was unable to recall most of what happened to her on the night of the attack. The overwhelming evidence of defendant’s guilt was provided by the testimony of witnesses who described the victim’s physical condition and the injuries she sustained on the night of the attack, the evidence that semen had been found in her vulva, vagina, cervix and anus, the testimony of witnesses who heard the victim screaming, and her child crying, the testimony of witnesses who observed defendant in the immediate vicinity of the attack, and the testimony of the victim’s child who saw defendant dragging his mother from the apartment. In view of the limited nature of the victim’s testimony and the overwhelming evidence of guilt, there was no significant probability that the jury would have acquitted defendant, absent the victim’s testimony (see, People v Crimmins, 36 NY2d 230).

We find no error in the court’s determination to permit the infant, Bart, to testify under oath. A court’s determination on the issue of the competency of a witness to testify is subject to limited review and will not be disturbed absent an abuse of discretion (People v Parks, 41 NY2d 36, 46; People v Bockeno, 107 AD2d 1051, 1052). The court conducted a thorough examination of the infant and the infant amply demonstrated that he possessed sufficient intelligence to understand the nature of an oath and the consequences of giving false testimony.

We find no merit to the other issues raised by defendant.

All concur, except Callahan and Doerr, JJ., who dissent and vote to reverse and grant a new trial, in accordance with the following memorandum.