| People v Batista |
| 2012 NY Slip Op 01263 [92 AD3d 793] |
| February 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wilmer Batista, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Cacace, J.), rendered January 25, 2011, convicting him of criminal sexual act in the first degree,sexual abuse in the first degree (two counts), and endangering the welfare of a child, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improperly permitted the seven-year-oldcomplainant to give sworn testimony is unpreserved for appellate review (see CPL470.05 [2]; People v Gillard, 7AD3d 540, 541 [2004]). In any event, the Supreme Court providently exercised its discretionin determining that the child was competent to give sworn testimony (see CPL 60.20;People v Morales, 80 NY2d 450, 453 [1992]; People v Nisoff, 36 NY2d 560, 566[1975]). The examination of the child revealed that she possessed sufficient intelligence andcapacity to testify (see CPL 60.20 [1]), and that she appreciated "the difference betweentruth and falsehood, the necessity for telling the truth, and the fact that a witness who testifiesfalsely may be punished" (CPL 60.20 [2]; see People v Stalter, 77 AD3d 776 [2010]; People v Mendoza, 49 AD3d 559,560 [2008]; People v McIver, 15AD3d 677, 678 [2005]; People v Gillard, 7 AD3d at 541).
The Supreme Court providently exercised its discretion in determining that an adverseinference charge was the appropriate sanction for the People's inadvertent loss of certainevidence (see People v Kelly, 62 NY2d 516, 520-521 [1984]; People v Gorham, 72 AD3d 1108,1110 [2010]; People v Conley, 70AD3d 961 [2010]).
The defendant's contention that the testimony from the complainant's father and uncle did notfall within the scope of the prompt-outcry exception to the hearsay rule is unpreserved forappellate review, since the defendant failed to object or failed to make specific objections to thetestimony of which he now complains (see CPL 470.05 [2]; People v Stalter, 77AD3d at 776-777; People v Brown, 302 AD2d 403 [2003]). In any event, thecomplained-of testimony fell within the scope of the prompt-outcry exception to the hearsay ruleand did not exceed the allowable level of detail (see People v McDaniel, 81 NY2d 10,16-18 [1993]; People v Stalter, 77 AD3d at 777; People v Bernardez, [*2]63 AD3d 1174, 1175 [2009]; People v Salazar, 234 AD2d322, 323 [1996]).
The defendant's contention that he was deprived of a fair trial due to prosecutorialmisconduct in presenting the testimony of a certain police officer is unpreserved for appellatereview and, in any event, without merit. Balkin, J.P., Leventhal, Belen and Roman, JJ., concur.