PEOPLE v. McIVER

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

The PEOPLE, etc., respondent, v. Jessica McIVER, appellant.

Decided: February 28, 2005

HOWARD MILLER, J.P., BARRY A. COZIER, SONDRA MILLER, and STEVEN W. FISHER, JJ. Stephen J. Pittari, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (John J. Sergi and Diane E. Selker of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Adler, J.), dated October 2, 2003, convicting her of sexual abuse in the first degree 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 her statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 “An effective waiver of Miranda rights [see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings” (People v. Williams, 62 N.Y.2d 285, 287, 476 N.Y.S.2d 788, 465 N.E.2d 327;  see People v. Fergus, 270 A.D.2d 357, 358, 704 N.Y.S.2d 864;  People v. Williams, 186 A.D.2d 770, 771, 589 N.Y.S.2d 70;  People v. Zuluaga, 148 A.D.2d 480, 481, 538 N.Y.S.2d 628).   On this record, we find no reason to disturb the hearing court's findings that the defendant knowingly and intelligently waived her Miranda rights and voluntarily made statements to law enforcement officials.

 Moreover, we find no error in the trial court's decision to allow the five-year-old complainant to testify under oath, as she adequately demonstrated, upon voir dire, that she appreciated the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness may be punished for telling a lie in court (see CPL 60.20[2];  People v. Nisoff, 36 N.Y.2d 560, 565-566, 369 N.Y.S.2d 686, 330 N.E.2d 638;  People v. McCall, 277 A.D.2d 467, 468, 715 N.Y.S.2d 760;  People v. Dorsey, 265 A.D.2d 567, 568, 697 N.Y.S.2d 305;  People v. Ford, 155 A.D.2d 863, 547 N.Y.S.2d 474, affd. 76 N.Y.2d 868, 560 N.Y.S.2d 981, 561 N.E.2d 881;  People v. Rivers, 145 A.D.2d 319, 534 N.Y.S.2d 986).   In any event, on this record, the complainant could properly have been permitted to testify as an unsworn witness (see CPL 60.20[2] ), and, because her testimony was sufficiently corroborated by other evidence (see People v. Groff, 71 N.Y.2d 101, 524 N.Y.S.2d 13, 518 N.E.2d 908), including the defendant's own statements to the police, any error in permitting the complainant to testify under oath would have been harmless (see People v. Pullman, 234 A.D.2d 955, 652 N.Y.S.2d 433;  People v. Lynch, 216 A.D.2d 929, 629 N.Y.S.2d 136;  People v. Green, 181 A.D.2d 1060, 582 N.Y.S.2d 659).

Moreover, the court's determination to deny youthful offender treatment to the defendant was a provident exercise of discretion (see CPL 720.20;  People v. Ferguson, 285 A.D.2d 901, 729 N.Y.S.2d 799;  People v. Wallace, 246 A.D.2d 676, 666 N.Y.S.2d 961;  People v. LaGrange, 115 A.D.2d 149, 495 N.Y.S.2d 511).

The defendant's remaining contentions are without merit.

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