People v. Cintron ( 1995 )

Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered November 9, 1990, convicting defendant, after a jury trial, of sodomy in the first degree and four counts of sexual abuse in the first degree, and sentencing him to one term of 5 to 15 years to run concurrently with four concurrent terms of 2 to 6 years, respectively, unanimously affirmed.

The court’s replacement of a sworn juror over defense objection was a proper exercise of discretion (People v Page, 72 NY2d 69, 73). The court personally communicated by telephone with the juror, who could not satisfactorily explain his two-day absence nor give any assurance that he would return on the next, or third day, or at any other time. These facts, along with the early stage of the trial and inconvenience to child witnesses, justified replacement of the juror (People v Thomas, 200 AD2d 419, lv denied 83 NY2d 877).

The court properly determined that a seven-year-old child had the capacity to be sworn (People v Nisoff 36 NY2d 560, 566). Without resort to leading questions, the court was able to ascertain the child’s comprehension of the duty to tell the truth in court and the consequences of breaking a pledge to do so, rendering immaterial the child’s inability to define terms such as "oath” (People v Mercado, 157 AD2d 457, lv denied 75 NY2d 922). Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.