NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT
February 11, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JONAS DELPRINCE, APPELLANT.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered May 2, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and endangering the welfare of a child.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 31, 2010
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 ) and endangering the welfare of a child (§ 260.10 ). Contrary to defendant's contention, Supreme Court properly allowed the five-year-old victim to give unsworn testimony (see People v Paul, 48 AD3d 833 , lv denied 10 NY3d 868 ; People v Miller, 295 AD2d 746, 747-748 ). Although the victim did not understand the nature of an oath and thus could not give sworn testimony, he possessed "sufficient intelligence and capacity" to give unsworn evidence (CPL 60.20 ; see People v Raymond, 60 AD3d 1388 , lv denied 12 NY3d 919 ). Defendant failed to preserve for our review his further contention that the victim's unsworn testimony was not sufficiently corroborated (see Raymond, 60 AD3d 1388 ; People v McLoud, 291 AD2d 867 , lv denied 98 NY2d 678 ) and, in any event, that contention is without merit (see Raymond, 60 AD3d 1388 ; Paul, 48 AD3d 833 ; see generally CPL 60.20 ; People v Groff, 71 NY2d 101, 103-104, 109-110 ). Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that the victim sustained a physical injury (see People v Hawkes, 39 AD3d 1209, 1210 , lv denied 9 NY3d 844, 845 ; People v Sommerville, 30 AD3d 1093, 1095 ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 ), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 ). Finally, the sentence is not unduly harsh or severe.
Present: Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.
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