People v. Lashway

• Citation: 978 N.Y.S.2d 388,2013 N.Y. Slip Op. 08549,112 A.D.3d 1222
• Parties: The PEOPLE of the State of New York, Respondent, v. Lee LASHWAY, Appellant.
• Decision Date: 26 December 2013
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1222
978 N.Y.S.2d 388
2013 N.Y. Slip Op. 08549

The PEOPLE of the State of New York, Respondent,
v.
Lee LASHWAY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 26, 2013.

[978 N.Y.S.2d 389]

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN Jr., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered December 2, 2010, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child and endangering the welfare of a child (two counts).

Between June 23, 2009 and October 12, 2009, the victim (born in 2002) and his younger brother (born in 2005) spent a significant amount of time at defendant's residence in the City of Troy, Rensselaer County. These visits with defendant, whom the children's mother described as the boys' “great-great uncle,” included overnight

[978 N.Y.S.2d 390]

visits “every other weekend” and, “depending on what was going on,” additional periods of time during the week. Beginning with the second such visit, defendant inserted a purple vibrator that belonged to his girlfriend into the victim's anus—a practice he repeated on more than five occasions during the time frame in question. As a result, defendant was indicted and charged with—insofar as is relevant here-predatory sexual assault against a child and endangering the welfare of a child (two counts). Following a jury trial, defendant was convicted of these counts and was sentenced to a prison term of 25 years to life on the predatory sexual assault conviction and concurrent one—year terms on the endangering the welfare of a child convictions. This appeal by defendant ensued.

We affirm. “A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath.... A witness understands the nature of an oath if he or she appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished” (CPL 60.20[2]; see People v. Alexander, 109 A.D.3d 1083, 1084, 972 N.Y.S.2d 124 [2013]; People v. Batista, 92 A.D.3d 793, 793, 938 N.Y.S.2d 479 [2012], lv. denied19 N.Y.3d 957, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ). “The determination as to whether a child is competent to testify rests primarily with the trial court, which had the opportunity to observe the child's demeanor and undertake any inquiries necessary to disclose the witness's capacity and intelligence” (People v. Spillett, 294 A.D.2d 605, 606, 743 N.Y.S.2d 277 [2002], lv. denied98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] [citation omitted]; see People v. Brown, 89 A.D.3d 1473, 1474, 932 N.Y.S.2d 653 [2011], lv. denied18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012] ). Here, the voir dire of the victim demonstrated that he knew the difference between telling the truth and telling a lie, understood that he was in a courtroom for a “[t]rial”—wherein he would be required to “[t]ell the truth” about “[w]hat happened” when defendant “[m]olested” him—and that he would “get in trouble” if he told a lie. Even assuming, as defendant contends, that the victim “gave perfunctory answers to the court's sometimes leading questions,” County Court's inquiry as a whole demonstrated that the victim “understood [he] had a moral duty to tell the truth” (People v. Brown, 89 A.D.3d at 1474, 932 N.Y.S.2d 653 [internal quotation marks and citation omitted]; see People v. Lapi, 105 A.D.3d 1084, 1087, 962 N.Y.S.2d 768 [2013], lv. denied21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013] ). Accordingly, County Court did not abuse its discretion in permitting the victim to give sworn testimony ( see People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364 [2008], lv. denied10 N.Y.3d 937, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008]; People v. Munroe, 307 A.D.2d 588, 591, 763 N.Y.S.2d 691 [2003], lv. denied100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431 [2003]; People v. Donk, 259 A.D.2d 1018, 1019, 688 N.Y.S.2d 333 [1999], lv. denied93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999]; People v. Christie, 241 A.D.2d 699, 700, 659 N.Y.S.2d 958 [1997], lv. denied90 N.Y.2d 938, 664 N.Y.S.2d 757, 687 N.E.2d 654 [1997] ).

Nor are we persuaded that County Court erred in admitting the testimony of the sexual assault nurse examiner (hereinafter SANE) who examined the victim and his brother in December 2009. “A trial court has the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education,

[978 N.Y.S.2d 391]

knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (People v. Burt, 270 A.D.2d 516, 518, 705 N.Y.S.2d 90...