PEOPLE v. GUPTON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Priscilla GUPTON, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., PINE, HAYES, SCUDDER and LAWTON, JJ. Timothy P. Donaher, Rochester, for defendant-appellant. Amy Molloy, for plaintiff-respondent.

Defendant was convicted following a bench trial of two counts of endangering the welfare of a child (Penal Law § 260.10[1] ).   Her sole contention on appeal is that Supreme Court erred in admitting prior consistent statements of the infant victim (see generally, People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265;  People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140). Although defendant preserved that contention for our review by a timely objection, this was a bench trial, and the Trial Judge is presumed to have considered only competent evidence in reaching the verdict (see, People v. Clinkscales, 277 A.D.2d 930, 716 N.Y.S.2d 260;  People v. Limpert, 186 A.D.2d 1005, 588 N.Y.S.2d 461, lv. denied 81 N.Y.2d 764, 594 N.Y.S.2d 726, 610 N.E.2d 399;  People v. Livingston, 184 A.D.2d 529, 530, 584 N.Y.S.2d 175;  People v. Mann, 172 A.D.2d 1010, 1010-1011, 569 N.Y.S.2d 270, lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421).   There is no basis in this record to conclude that the court did otherwise (see, People v. Clinkscales, supra;  People v. Concepcion, 266 A.D.2d 227, 697 N.Y.S.2d 697, lv. denied 94 N.Y.2d 917, 708 N.Y.S.2d 357, 729 N.E.2d 1156).

Judgment unanimously affirmed.

MEMORANDUM: