| People v Mendoza |
| 2008 NY Slip Op 01973 [49 AD3d 559] |
| March 4, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseS. Mendoza, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), forrespondent.
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, sexualabuse 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 branchof the defendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that he was arrested on less than probablecause and that, as a result, his statements to law enforcement officials should have beensuppressed. 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 AD3d 502[2005]; People v Jansson, 305 AD2d 942, 943 [2003]; People v Green, 154AD2d 548 [1989]; People v Singh, 142 AD2d 743, 744 [1988]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in determining that the five-year-old complainant was competent to give sworntestimony. The examination of the child revealed that she knew the difference between telling thetruth and telling a lie, promised to tell the truth, and indicated that she would be punished by herfamily and by God if she lied (see CPL 60.20 [2]; People v Nisoff, 36 NY2d 560,566 [1975]; Matter of James N., 19AD3d 1047, 1048 [2005]; People vMcIver, 15 AD3d 677, 678 [2005]; People v Gillard, 7 AD3d 540, 541 [2004]; People [*2]v Brill, 245 AD2d 384 [1997]; People v Roger S., 168AD2d 581 [1990]). In any event, on this record, the complainant could properly have beenpermitted to testify as an unsworn witness (see CPL 60.20 [2]) because her testimony wassufficiently corroborated by other evidence (see People v Groff, 71 NY2d 101, 109-110[1987]; People v Maldonado, 199 AD2d 563 [1993]), including the defendant's ownstatements to the police. Thus, even if permitting the complainant to testify under oath hadconstituted error, it would not require reversal (see People v McIver, 15 AD3d 677, 678 [2005]; People vMorey, 224 AD2d 730, 731-732 [1996]).
The defendant's contention that the evidence presented was legally insufficient to establishthe elements of "oral sexual conduct" (see Penal Law § 130.00 [2]; § 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]; Peoplev Gray, 86 NY2d 10 [1995]; Peoplev Hughes, 6 AD3d 725, 726 [2004]; Matter of Rahmel S., 4 AD3d 365, 366 [2004]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt (see People vOrtiz, 16 AD3d 831, 833 [2005]; People v Watson, 281 AD2d 691, 698 [2001];Matter of Joel H., 279 AD2d 266, 267 [2001]; People v Beecher, 225 AD2d 943,944-945 [1996]). The defendant's contention that the evidence of identification was legallyinsufficient, while preserved for appellate review, is equally without merit.
We also reject the defendant's contention that the Supreme Court improvidently exercised itsdiscretion in allowing a nurse practitioner to testify that the lack of physical findings of abusewas consistent with the complainant's allegations (see People v Heer, 12 AD3d 1154, 1155 [2004]; People v Dosti, 11 AD3d 253[2004]; People v Shelton, 307 AD2d 370, 371 [2003], affd 1 NY3d 614 [2004];People v Barber, 299 AD2d 893, 894 [2002]; People v Scott, 294 AD2d 661, 664[2002]; People v Houston, 250 AD2d 535, 536 [1998]).
There is no merit to the defendant's contention that the prosecutor improperly questioned thecomplainant. While some of the complained of questions may have been leading (seePrince, Richardson on Evidence § 6-223 [Farrell 11th ed]), in light of the complainant'sage, and the intimate and embarrassing nature of the crimes, allowing the prosecutor considerablelatitude in questioning her was a provident exercise of discretion (see People v Celdo,291 AD2d 357 [2002]; People v Wasley, 249 AD2d 625, 626 [1998]; Matter ofWilliam T., 182 AD2d 766, 767 [1992]; People v Greenhagen, 78 AD2d 964, 966[1980]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention that the Supreme Court erred in allowing the complainant totestify that she told various persons about being sexually abused is unpreserved for appellatereview, and in any event, any error was harmless. The defendant's remaining contentions areunpreserved for appellate review and, in any event, are without merit. Mastro, J.P., Skelos, Florioand Dickerson, JJ., concur.