PEOPLE v. RAYMOND (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[3] ) and endangering the welfare of a child (§ 260.10[1] ).   Defendant failed to preserve for our review his contention that County Court erred in permitting the six-year-old victim to give unsworn testimony (see People v. Bitting, 224 A.D.2d 1012, 637 N.Y.S.2d 820, lv. denied 88 N.Y.2d 845, 644 N.Y.S.2d 691, 667 N.E.2d 341).   In any event, the record establishes that the victim “possesse[d] sufficient intelligence and capacity to justify” her unsworn testimony (CPL 60.20[2];  see People v. Wacht, 261 A.D.2d 932, 689 N.Y.S.2d 795;  Bitting, 224 A.D.2d 1012, 637 N.Y.S.2d 820).   Defendant also failed to preserve for our review his challenge to the court's charge on corroboration and his contention that the victim's unsworn testimony was not corroborated (see CPL 470.05[2] ).   In any event, we conclude that the court's charge was proper and that the victim's unsworn testimony was sufficiently corroborated by “evidence tending to establish the crime and connecting defendant with its commission” (People v. Groff, 71 N.Y.2d 101, 104, 524 N.Y.S.2d 13, 518 N.E.2d 908;  see People v. Petrie, 3 A.D.3d 665, 667, 771 N.Y.S.2d 242), including defendant's statement to the police (Petrie, 3 A.D.3d at 667-668, 771 N.Y.S.2d 242;  People v. Thomas, 267 A.D.2d 949, 950, 700 N.Y.S.2d 620, lv. denied 95 N.Y.2d 805, 711 N.Y.S.2d 173, 733 N.E.2d 245;  People v. Pullman, 234 A.D.2d 955, 652 N.Y.S.2d 433, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994).

 Defendant failed to renew his motion for a trial order of dismissal after presenting evidence and thus failed to preserve for our review his contention that the evidence is legally insufficient (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Diefenbacher, 21 A.D.3d 1293, 1294, 801 N.Y.S.2d 466, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797).   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 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).   Contrary to defendant's contention, the unsworn testimony of the victim was not incredible as a matter of law (see People v. Johnson, 56 A.D.3d 1172, 1173, 868 N.Y.S.2d 433, lv. denied 11 N.Y.3d 926, 902 N.E.2d 445, 902 N.E.2d 445;  People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661), and it cannot be said that the jury failed to give her testimony the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We reject the further contention of defendant that he was denied effective assistance of counsel.   Rather, we conclude that the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is not unduly harsh or severe.   Defendant failed to preserve his remaining contentions for our review (see CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: