In re Dandre H.

Appellate Division of the Supreme Court of New York

In re Dandre H.

89 A.D.3d 553, 932 N.Y.2d 696

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 17, 2011

StatusPublished

Cited by5 cases

This text of 89 A.D.3d 553 (In re Dandre H.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Dandre H., 89 A.D.3d 553, 932 N.Y.2d 696 (N.Y. Ct. App. 2011).

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Opinion

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations.

The court properly permitted the five-year-old victim to give sworn testimony. The victim’s voir dire responses established that he sufficiently understood the difference between truth and falsity, that lying was wrong, and that lying could bring adverse consequences (see People v Nisoff, 36 NY2d 560, 565-[554]*554566 [1975]; People v Cordero, 257 AD2d 372 [1999], lv denied 93 NY2d 968 [1999]). Furthermore, there was significant corroborating testimony provided by an adult family member. This witness entered the bedroom occupied by appellant and the victim, and saw indications that a sex act had just occurred.

To the extent certain testimony exceeded the bounds of the prompt outcry exception to the hearsay rule (see People v McDaniel, 81 NY2d 10, 16-17 [1993]), the error was harmless. In this nonjury trial, the court is presumed to have considered only proper evidence in reaching its verdict (see People v Moreno, 70 NY2d 403, 406 [1987]). Concur — Gonzalez, P.J., Tom, Catterson, Richter and Román, JJ.

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The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations.

The court properly permitted the five-year-old victim to give sworn testimony. The victim’s voir dire responses established that he sufficiently understood the difference between truth and falsity, that lying was wrong, and that lying could bring adverse consequences (see People v Nisoff, 36 NY2d 560, 565-[554]*554566 [1975]; People v Cordero, 257 AD2d 372 [1999], lv denied 93 NY2d 968 [1999]). Furthermore, there was significant corroborating testimony provided by an adult family member. This witness entered the bedroom occupied by appellant and the victim, and saw indications that a sex act had just occurred.

To the extent certain testimony exceeded the bounds of the prompt outcry exception to the hearsay rule (see People v McDaniel, 81 NY2d 10, 16-17 [1993]), the error was harmless. In this nonjury trial, the court is presumed to have considered only proper evidence in reaching its verdict (see People v Moreno, 70 NY2d 403, 406 [1987]). Concur — Gonzalez, P.J., Tom, Catterson, Richter and Román, JJ.

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Bluebook (online)

89 A.D.3d 553, 932 N.Y.2d 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dandre-h-nyappdiv-2011.

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