People v. Davis

304 A.D.2d 421, 760 N.Y.S.2d 12, 2003 N.Y. App. Div. LEXIS 4144

Opinion

Judgments, Supreme Court, Bronx County (Robert Straus, J.), rendered May 18, 2000, convicting defendant, after a jury trial, of sexual abuse in the first degree (two counts) and endangering the welfare of a child, and sentencing him, as a second felony offender, to concurrent terms of seven years, seven years and one year, respectively, and also convicting defendant of violation of probation and resentencing him to a consecutive term of 1 to 3 years, unanimously affirmed.

The court properly determined that a child called as a witness for defendant could only offer unsworn testimony. The inquiries from the court demonstrated that although she knew the difference between the truth and a lie, the child lacked an understanding of the nature and consequences of an oath (People v Nisoff, 36 NY2d 560 [1975]; see also People v Maldonado, 199 AD2d 563 [1993]). In making such an inquiry, the trial court has the unique opportunity to view the child’s demeanor, and its findings are entitled to deference (People v Parks, 41 NY2d 36, 46 [1976]).

The court’s reasonable doubt instruction conveyed the appropriate legal principles and nothing in that instruction, or in any other part of the court’s charge, imposed an affirmative obligation on the jurors to articulate a reason for having a doubt (see People v Antommarchi, 80 NY2d 247, 251-252 [1992]). Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.