PEOPLE v. MARTINA (2008)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, three counts of rape in the first degree (Penal Law § 130.35[4] ), defendant contends that the evidence is legally insufficient to support the conviction because the 11-year-old victim was allowed to testify despite her failure to understand the nature of the oath, and the prosecutor asked the victim leading questions on direct examination.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   An 11-year-old witness is presumed competent to testify (see CPL 60.20[2];  People v. Peppard, 27 A.D.3d 1143, 811 N.Y.S.2d 253, lv. denied 7 N.Y.3d 793, 821 N.Y.S.2d 823, 854 N.E.2d 1287) and, when Supreme Court nevertheless conducted voir dire, the victim “ demonstrated that [she] had the requisite intelligence and mental capacity and knew, understood and appreciated the nature of the oath” (People v. Howard, 195 A.D.2d 1082, 1082, 600 N.Y.S.2d 544, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183).   In addition, the decision “ whether to permit the use of leading questions on direct examination is a matter within the sound discretion of the trial court and will not be disturbed absent a clear demonstration of an abuse of discretion” (People v. Cuttler, 270 A.D.2d 654, 655, 705 N.Y.S.2d 416, lv. denied 95 N.Y.2d 795, 711 N.Y.S.2d 163, 733 N.E.2d 235;  see Prince, Richardson on Evidence § 6-232 [Farrell 11th ed.] ).   In view of “the ‘intimate and embarrassing nature of the crimes,’ ” we conclude that the court did not abuse its discretion in allowing the prosecutor to ask the child victim leading questions in this sexual abuse case (Cuttler, 270 A.D.2d at 655, 705 N.Y.S.2d 416;  see People v. Ronchi, 11 A.D.3d 982, 782 N.Y.S.2d 233, lv. denied 4 N.Y.3d 747, 790 N.Y.S.2d 660, 824 N.E.2d 61).   We further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Contrary to the further contention of defendant, he was not deprived of his right to effective assistance of counsel.   Insofar as defendant's contention is based upon defense counsel's allegedly insufficient investigation, it involves matters dehors the record and is therefore not reviewable on direct appeal (see People v. Shegog, 32 A.D.3d 1289, 1290, 822 N.Y.S.2d 222, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 697, 860 N.E.2d 999).   The remainder of defendant's contention involves “simple disagreement[s] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial” (People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19), and we thus conclude on the record before us that defense counsel provided the requisite meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 We note our disapproval of the prosecutor's comments during summation that vouched for the credibility of the victim and denigrated the defense (see People v. Benedetto, 294 A.D.2d 958, 959, 744 N.Y.S.2d 92).   We conclude, however, that those comments and others challenged by defendant were “not so egregious as to deprive defendant of his right to a fair trial,” when viewed in the totality of the circumstances of this case (People v. Ortiz-Castro, 12 A.D.3d 1071, 784 N.Y.S.2d 466, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142).   Defendant failed to preserve for our review his contention that the court erred in determining, following an in camera review of the victim's psychological records, that he was not entitled to access to those records (see CPL 470.05[2] ), 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] ).   The contention of defendant that the court erred in refusing to suppress his post-Miranda statement to the police because it was involuntary is without merit.   The record contains no evidence that, in making the statement, “defendant's will [was] overborne so that the statement was not the product of essentially free and unconstrained choice” (People v. Richardson, 202 A.D.2d 958, 958, 609 N.Y.S.2d 981, lv. denied 83 N.Y.2d 914, 614 N.Y.S.2d 396, 637 N.E.2d 287).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: