| People v Merrill |
| 2009 NY Slip Op 02126 [60 AD3d 1376] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert J.Merrill, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedAugust 28, 2007. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree (two counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of twocounts of sexual abuse in the first degree (Penal Law § 130.65 [1], [3]) and one count ofendangering the welfare of a child (§ 260.10 [1]), defendant contends that County Courterred in allowing the 10-year-old victim to testify under oath. We reject that contention. Pursuantto CPL 60.20 (2), any witness over the age of nine may testify under oath "unless the court issatisfied that such witness cannot . . . understand the nature of an oath." Thus, a10-year-old child "is presumed competent to testify" (People v Mann, 41 AD3d 977, 980[2007], lv denied 9 NY3d 924 [2007]), and the court need not ascertain whether he orshe understands the nature of an oath in the absence of any evidence to the contrary.
Defendant failed to preserve for our review his contention that the court erred in failing togive a missing witness charge (see People v Russell, 209 AD2d 650 [1994]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Defendant made only a general motion for a trial orderof dismissal and thus also failed to preserve for our review his contention that the conviction isnot supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19[1995]). Viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdictis not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P.,Martoche, Fahey, Carni and Gorski, JJ.