| People v Paul |
| 2008 NY Slip Op 01786 [48 AD3d 833] |
| February 26, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KimPaul, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered January 10, 2005, convicting him of assault in the second degree (two counts),criminal possession of a weapon in the fourth degree, and endangering the welfare of a child,after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
There is no basis to disturb the determination of the Supreme Court, made after an inquiryinto the five-year-old complainant's testimonial capacity, that the child possessed sufficientintelligence and capacity to justify the receipt of her unsworn testimony (see CPL 60.20[2]; People v Scott, 86 NY2d 864, 865 [1995]; People v Groff, 71 NY2d 101,105 [1987]; Matter of David S., 6 AD3d 539, 540 [2004]).
The child's testimony as to the identity of her assailant was sufficiently corroborated by thetestimony of the child's mother and the medical evidence (see CPL 60.20 [3]; Peoplev Groff, 71 NY2d at 109). Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).[*2]
The defendant's contention that the voir dire conductedby the prosecutor before allowing the child to give unsworn testimony to the grand jury wasinadequate to determine her testimonial capacity is not reviewable on this appeal from thedefendant's conviction upon legally sufficient trial evidence (see CPL 210.30 [6];People v Carpenter, 35 AD3d 1092, 1093 [2006]; People v Haberer, 24 AD3d1283, 1284 [2005]).
The defendant's remaining contentions are without merit. Lifson, J.P., Ritter, Florio andCarni, JJ., concur.