PEOPLE v. HOMAN (1997)

 Defendant appeals from a judgment convicting him following a jury trial of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and endangering the welfare of a child.   Defendant's contention that the prosecutor improperly led the nine-year-old complainant during her Grand Jury testimony “is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30[6] ).   Contrary to defendant's further contention, County Court did not abuse its discretion in partially excluding the public from the courtroom during the trial testimony of complainant, who the prosecutor said was nervous and embarrassed to testify about sexual acts committed upon her by defendant, her grandfather.   The People advanced an overriding interest that was likely to be prejudiced;  the closure was no broader than necessary to protect that interest;  the court considered reasonable alternatives to closure;  and the court made findings adequate to support its decision partially to close the courtroom to the public (see, Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216–17, 81 L.Ed.2d 31;  People v. Kin Kan, 78 N.Y.2d 54, 57–58, 571 N.Y.S.2d 436, 574 N.E.2d 1042, rearg. denied 78 N.Y.2d 1008, 575 N.Y.S.2d 458, 580 N.E.2d 1061).

 We further conclude that the court did not abuse its discretion in allowing complainant to testify under oath.   Complainant demonstrated that she had “ ‘sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what [s]he has seen and heard vis-a-vis the subject about which [s]he is interrogated’ ” (People v. Parks, 41 N.Y.2d 36, 45–46, 390 N.Y.S.2d 848, 359 N.E.2d 358;  see, CPL 60.20[2] ).   Even assuming, arguendo, that the court erred in permitting complainant to testify under oath, her testimony was sufficiently corroborated by other evidence at trial (see, People v. Groff, 71 N.Y.2d 101, 109–111, 524 N.Y.S.2d 13, 518 N.E.2d 908;  People v. Green, 181 A.D.2d 1060, 582 N.Y.S.2d 659, lv denied 80 N.Y.2d 831, 587 N.Y.S.2d 916, 600 N.E.2d 643).

The evidence at trial, viewed in the light most favorable to the People (see, People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367), is legally sufficient to support defendant's conviction (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon weighing the relative probative force of the conflicting testimony, we conclude that the verdict is not against the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, upon our review of the record, we conclude that the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: