People v. Diaz

172 A.D.2d 389, 568 N.Y.S.2d 768, 1991 N.Y. App. Div. LEXIS 4959

Opinion

Judgment, Supreme Court, Bronx County (Phylis Bamberger, J.), rendered January 12, 1989, convicting defendant, after a jury trial, of two counts of sexual abuse in the first degree, and sentencing him, as a predicate felon, to concurrent indeterminate prison terms of from three and one-half to seven years, unanimously affirmed.

Defendant’s contention that the trial court abused its discretion in determining that the nine-year-old complainant was competent to give sworn testimony is unpreserved for appellate review (CPL 470.05 [2]). In any case, we decline to disturb the trial court’s determination where the record of the court’s voir dire clearly established that the complainant understood the nature of an oath to tell the truth despite her inability to define the word "oath” (People v Mercado, 157 AD2d 457, lv denied 75 NY2d 922). Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Kassal, JJ.