People v. DelPrince

Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered May 2, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [9]) and endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant’s contention, Supreme Court properly allowed the five-year-old victim to give unsworn testimony (see People v Paul, 48 AD3d 833 [2008], lv denied 10 NY3d 868 [2008]; People v Miller, 295 AD2d 746, 747-748 [2002]). Although the victim did not understand the nature of an oath and thus could not give sworn testimony, he possessed “sufficient intelligence and capacity” to give unsworn evidence (CPL 60.20 [2]; see People v Raymond, 60 AD3d 1388 [2009], lv denied 12 NY3d 919 [2009]). Defendant failed to preserve for our review his further contention that the victim’s unsworn testimony was not sufficiently corroborated (see Raymond, 60 AD3d 1388 [2009]; People v McLoud, 291 AD2d 867 [2002], lv denied 98 NY2d 678 [2002]) and, in any event, that contention is without merit (see Raymond, 60 AD3d 1388 [2009]; Paul, 48 AD3d 833 [2008]; see generally CPL 60.20 [3]; People v Groff, 71 NY2d 101, 103-104, 109-110 [1987]). Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that the victim sustained a physical injury (see People v Hawkes, 39 AD3d 1209, 1210 [2007], lv denied 9 NY3d 844, 845 [2007]; People v Sommerville, 30 AD3d 1093, 1095 [2006]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.