PEOPLE v. STEBBINS (2001)

 Defendant was convicted following a jury trial of rape in the first degree (Penal Law § 130.35[3] ) and endangering the welfare of a child (Penal Law § 260.10[1] ) for engaging in sexual intercourse with a nine-year-old girl.   Defendant contends that County Court erred in admitting in evidence a photograph of the infant victim's vagina because the photograph lacked any probative value and was unduly prejudicial.   We disagree.   The photograph was probative on the issue of penetration, corroborated the infant victim's unsworn testimony, and illustrated the medical testimony (see, People v. Dogan, 170 A.D.2d 955, 566 N.Y.S.2d 126, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417;  see also, People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110;  People v. Brakefield, 156 A.D.2d 1004, 549 N.Y.S.2d 288, lv. denied 75 N.Y.2d 917, 555 N.Y.S.2d 35, 554 N.E.2d 72).  “The exhibit was not offered solely to arouse the jurors' emotions;  it served a legitimate function to illustrate relevant evidence and to corroborate other evidence offered by the People” (People v. Pitsley, 185 A.D.2d 645, 646, 586 N.Y.S.2d 170, lv. denied 81 N.Y.2d 788, 792, 594 N.Y.S.2d 735, 739, 610 N.E.2d 408, 412).

 Defendant further contends that the court erred in denying his motions to dismiss the charges because the People failed to establish a prima facie case that sexual intercourse actually occurred and failed to corroborate the unsworn testimony of the infant victim.   The unsworn testimony of the infant victim, which was adequately corroborated by the medical testimony (see, CPL 60.20[3] ), was sufficient to establish that “penetration, however slight”, occurred (Penal Law § 130.00[1];  see, People v. Hayes, 261 A.D.2d 872, 690 N.Y.S.2d 358, lv. denied 93 N.Y.2d 1019, 697 N.Y.S.2d 578, 719 N.E.2d 939).   The People presented expert medical evidence that the infant victim had an abnormally enlarged vaginal opening, that there had been penetration by some object to enlarge the opening, and that there was scarring near her hymenal ring.   The People also presented the testimony of the infant victim's mother that defendant had exclusive access to the infant during the time frame in which the sexual abuse occurred.   That evidence “tend[ed] to establish the crime and connect[ed] 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. White, 237 A.D.2d 931, 656 N.Y.S.2d 1008, lv. denied 90 N.Y.2d 866, 661 N.Y.S.2d 193, 683 N.E.2d 1067).

Judgment unanimously affirmed.

MEMORANDUM: