PEOPLE v. MASCORRO

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

The PEOPLE, etc., Respondent, v. Victor MASCORRO, Appellant.

Decided: May 21, 2001

LAWRENCE J. BRACKEN, P.J., CORNELIUS J. O'BRIEN, NANCY E. SMITH and BARRY A. COZIER, JJ. Frank Mandell, New York, N.Y. (Ronald Cohen of counsel), for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (Dana M. Loiacono and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered June 23, 1998, convicting him of sexual abuse in the first degree, rape in the first degree, and incest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the court properly excluded him from the hearing pursuant to CPL 60.20 to determine the testimonial capacity of his nine-year-old daughter, whom he was accused of raping and sexually abusing (see, People v. Morales, 80 N.Y.2d 450, 591 N.Y.S.2d 825, 606 N.E.2d 953).   A hearing to determine testimonial capacity does not address factual matters about which the defendant has a unique knowledge that would advance his defense, counter the prosecution, or involve evidence (see, People v. Morales, supra).   Accordingly, it is not a material stage of the trial at which the defendant has a right to be present (see, People v. Roman, 88 N.Y.2d 18, 25, 643 N.Y.S.2d 10, 665 N.E.2d 1050;  People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836;  People v. DePallo, 275 A.D.2d 60, 64, 714 N.Y.S.2d 755).

The totality of the circumstances indicate that the defense counsel provided effective assistance (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Cummings, 269 A.D.2d 541, 703 N.Y.S.2d 503).

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