PEOPLE v. NAYYAR (2004)

Judgment, Supreme Court, Bronx County (Michael Gross, J.), rendered March 9, 2001, convicting defendant, after a nonjury trial, of endangering the welfare of a child, and sentencing her to a term of 1 year, and order, same court and Justice, entered on or about March 20, 2003, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of credibility were properly considered by the court, and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   There was sufficient evidence to corroborate the child victim's unsworn testimony (see People v. Groff, 71 N.Y.2d 101, 109-110, 524 N.Y.S.2d 13, 518 N.E.2d 908;  People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139).

The court properly exercised its discretion in permitting the prosecutor and the five-year-old victim's foster mother to have a private conversation with the victim in the middle of her testimony (see People v. Branch, 83 N.Y.2d 663, 612 N.Y.S.2d 365, 634 N.E.2d 966).   This conference was for the sole purpose of comforting the child and it could not have caused any prejudice to defendant.

The court properly denied defendant's motion to vacate the judgment pursuant to CPL 440.10.   The newly discovered evidence would not have affected the verdict (see People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377), the prosecutor did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and the record establishes that trial counsel provided effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

We have considered and rejected defendant's remaining claims.