PEOPLE v. DELPRINCE (2010)

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[9] ) and endangering the welfare of a child (§ 260.10[1] ). Contrary to defendant's contention, Supreme Court properly allowed the five-year-old victim to give unsworn testimony (see People v. Paul, 48 AD3d 833, lv denied 10 NY3d 868; People v. Miller, 295 A.D.2d 746, 747-748). Although the victim did not understand the nature of an oath and thus could not give sworn testimony, he possessed “sufficient intelligence and capacity” to give unsworn evidence (CPL 60.20[2]; see People v. Raymond, 60 AD3d 1388, lv denied 12 NY3d 919). Defendant failed to preserve for our review his further contention that the victim's unsworn testimony was not sufficiently corroborated (see Raymond, 60 AD3d 1388; People v. McLoud, 291 A.D.2d 867, lv denied 98 N.Y.2d 678) and, in any event, that contention is without merit (see Raymond, 60 AD3d 1388; Paul, 48 AD3d 833; see generally CPL 60.20[3]; People v. Groff, 71 N.Y.2d 101, 103-104, 109-110). Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that the victim sustained a physical injury (see People v. Hawkes, 39 AD3d 1209, 1210, lv denied 9 NY3d 844, 845; People v. Sommerville, 30 AD3d 1093, 1095). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: