PEOPLE v. MENDOZA (2008)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Pastoressa, J), rendered February 2, 2005, convicting him of criminal sexual act in the first degree, sexual abuse in the first degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 There is no merit to the defendant's contention that he was arrested on less than probable cause and that, as a result, his statements to law enforcement officials should have been suppressed.   Where, as here, an identified citizen accuses another individual of a specific crime, the police possess probable cause to arrest (see CPL 70.10[2];  People v. Griffin, 15 A.D.3d 502, 790 N.Y.S.2d 494;  People v. Jansson, 305 A.D.2d 942, 943, 760 N.Y.S.2d 259;  People v. Green, 154 A.D.2d 548, 546 N.Y.S.2d 388;  People v. Singh, 142 A.D.2d 743, 744, 531 N.Y.S.2d 310).

 Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in determining that the five-year-old complainant was competent to give sworn testimony.   The examination of the child revealed that she knew the difference between telling the truth and telling a lie, promised to tell the truth, and indicated that she would be punished by her family and by God if she lied (see CPL 60.20[2];  People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638;  Matter of James N., 19 A.D.3d 1047, 1048, 796 N.Y.S.2d 468;  People v. McIver, 15 A.D.3d 677, 678, 791 N.Y.S.2d 587;  People v. Gillard, 7 A.D.3d 540, 541, 776 N.Y.S.2d 95;  People v. Brill, 245 A.D.2d 384, 666 N.Y.S.2d 195;  People v. Roger S., 168 A.D.2d 581, 562 N.Y.S.2d 797).   In any event, on this record, the complainant could properly have been permitted to testify as an unsworn witness (see CPL 60.20[2] ) because her testimony was sufficiently corroborated by other evidence (see People v. Groff, 71 N.Y.2d 101, 109-110, 524 N.Y.S.2d 13, 518 N.E.2d 908;  People v. Maldonado, 199 A.D.2d 563, 606 N.Y.S.2d 258), including the defendant's own statements to the police.   Thus, even if permitting the complainant to testify under oath had constituted error, it would not require reversal (see People v. McIver, 15 A.D.3d 677, 678, 791 N.Y.S.2d 587;  People v. Morey, 224 A.D.2d 730, 731-732, 637 N.Y.S.2d 500).

The defendant's contention that the evidence presented was legally insufficient to establish the elements of “oral sexual conduct” (see Penal Law §§ 130.00[2][a], 130.50[3] ) and “sexual gratification” (see Penal Law §§ 130.00[3], 130.65[3], 260.10[1] ), is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Hughes, 6 A.D.3d 725, 726, 775 N.Y.S.2d 189;  Matter of Rahmel S., 4 A.D.3d 365, 366, 770 N.Y.S.2d 881).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Ortiz, 16 A.D.3d 831, 833, 791 N.Y.S.2d 709;  People v. Watson, 281 A.D.2d 691, 698, 721 N.Y.S.2d 700;  Matter of Joel H., 279 A.D.2d 266, 267, 718 N.Y.S.2d 347;  People v. Beecher, 225 A.D.2d 943, 944-945, 639 N.Y.S.2d 863).   The defendant's contention that the evidence of identification was legally insufficient, while preserved for appellate review, is equally without merit.

 We also reject the defendant's contention that the Supreme Court improvidently exercised its discretion in allowing a nurse practitioner to testify that the lack of physical findings of abuse was consistent with the complainant's allegations (see People v. Heer, 12 A.D.3d 1154, 1155, 784 N.Y.S.2d 412;  People v. Dosti, 11 A.D.3d 253, 782 N.Y.S.2d 906;  People v. Shelton, 307 A.D.2d 370, 371, 763 N.Y.S.2d 79, affd. 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268;  People v. Barber, 299 A.D.2d 893, 894, 750 N.Y.S.2d 206;  People v. Scott, 294 A.D.2d 661, 664, 742 N.Y.S.2d 681;  People v. Houston, 250 A.D.2d 535, 536, 673 N.Y.S.2d 425).

 There is no merit to the defendant's contention that the prosecutor improperly questioned the complainant.   While some of the complained of questions may have been leading (see Prince, Richardson on Evidence § 6-223 [Farrell 11th ed.] ), in light of the complainant's age, and the intimate and embarrassing nature of the crimes, allowing the prosecutor considerable latitude in questioning her was a provident exercise of discretion (see People v. Celdo, 291 A.D.2d 357, 739 N.Y.S.2d 25;  People v. Wasley, 249 A.D.2d 625, 626, 671 N.Y.S.2d 767;  Matter of William T., 182 A.D.2d 766, 767, 582 N.Y.S.2d 759;  People v. Greenhagen, 78 A.D.2d 964, 966, 433 N.Y.S.2d 683).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

 The defendant's contention that the Supreme Court erred in allowing the complainant to testify that she told various persons about being sexually abused is unpreserved for appellate review, and in any event, any error was harmless.   The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.