PEOPLE v. MERRILL (2009)

On appeal from a judgment convicting him following a jury trial of two counts of sexual abuse in the first degree (Penal Law § 130.65 [1], [3] ) and one count of endangering the welfare of a child (§ 260.10[1] ), defendant contends that County Court erred in allowing the 10-year-old victim to testify under oath.   We reject that contention.   Pursuant to CPL 60.20 (2), any witness over the age of nine may testify under oath “unless the court is satisfied that such witness cannot ․ understand the nature of an oath.”   Thus, a 10-year-old child “is presumed competent to testify” (People v. Mann, 41 A.D.3d 977, 980, 839 N.Y.S.2d 247, lv. denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898), and the court need not ascertain whether he or she understands the nature of an oath in the absence of any evidence to the contrary.

Defendant failed to preserve for our review his contention that the court erred in failing to give a missing witness charge (see People v. Russell, 209 A.D.2d 650, 619 N.Y.S.2d 122), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant made only a general motion for a trial order of dismissal and thus also failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: