People v. Allen
| Decision Date | 01 April 1991 |
| Citation | 568 N.Y.S.2d 132,172 A.D.2d 542 |
| Parties | The PEOPLE, etc., Respondent, v. Fred ALLEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert J. Raubach, Baldwin, for appellant.
James M. Catterson, Jr., Dist. Atty., Riverhead (Michael Blakey, of counsel, Cathy Abrams, on the brief), for respondent.
Before BRACKEN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered March 1, 1989, convicting him of sexual abuse in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed. The defendant in this case was arrested on April 9, 1988, for sexual abuse in the first degree and endangering the welfare of a child. The testimony adduced at trial revealed that the incident had occurred sometime late on the evening of April 8, 1988, while the defendant was babysitting for the infant victim and her sisters. The victim did not tell her mother about the incident until the morning of April 9, and then only after repeated questioning by her mother. The mother's questioning had been prompted by statements made to her by the victim's two sisters to the effect that the defendant had been "playing in" the victim's pants. The trial court allowed the victim's mother to repeat the answers given by the victim to her questioning, as well as the statements made to her by the other two sisters.
We agree with the defendant's contention that the mother's testimony with respect to what the victim told her did not fall within the scope of the excited utterance exception to the hearsay rule. While the testimony revealed that the child victim had been unusually quiet and still that morning, we cannot conclude that the surrounding circumstances reasonably justified the conclusion that statements had been made while she was still under the influence of the excitement precipitated by the event (see, People v. Edwards, 47 N.Y.2d 493, 498, 419 N.Y.S.2d 45, 392 N.E.2d 1229; see also, People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515; People v. Knapp, 139 A.D.2d 931, 527 N.Y.S.2d 914).
We also agree with the defendant's further contention that the trial court erred in permitting the child victim's mother to testify as to what her two other daughters had told her that morning regarding the incident, on the ground that these statements constituted inadmissible hearsay (see, People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847; see also, People v. Ranieri, 144 A.D.2d 1006, 534 N.Y.S.2d 287; People v. Gonzalez, 131 A.D.2d 873, 517 N.Y.S.2d 530).
However, owing to the overwhelming evidence of the defendant's guilt, the admission of the mother's testimony as to what her daughters had told her the following morning was harmless error (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). The victim testified that the defendant had placed his finger inside her vagina, and one of the victim's sisters testified that she had seen the defendant place his hand inside the victim's pants. In addition, an expert in child abuse testified that the scratch on the child victim's vagina was consistent with digital fondling.
Further, the trial court did not improvidently exercise its discretion in allowing the victim's eight-year-old sister to give sworn testimony. The decision as to whether a child is competent to testify under oath rests primarily with the trial court, which has the opportunity to view the child's demeanor (see, CPL 60.20[2]; see also, People v. Nisoff, 36 N.Y.2d 560, 369 N.Y.S.2d 686, 330 N.E.2d 638). The voir dire examination of this child revealed that she understood the nature of an oath, the difference between telling a lie and telling the truth, the meaning of a promise to tell the truth, that she would be punished by God and her mother if she told a lie and that she would have to tell the truth in court. Furthermore, the child possessed sufficient intelligence to recall the events in question and to relate them in a...
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