People v. Guerrero

250 A.D.2d 703, 672 N.Y.S.2d 763, 1998 N.Y. App. Div. LEXIS 5487

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered April 24, 1996, convicting him of sodomy in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court did not improvidently exercise its discretion in allowing the seven-year-old complainant to testify as a sworn witness, since he had “ ‘some conception’ of the obligations of an oath and the consequences of giving false testimony” (People v Parks, 41 NY2d 36, 46, quoting People v Washor, 196 NY 104, 109). Moreover, the child indicated that he knew the difference between the truth and a lie and knew that he would be punished if he did not tell the truth (see, People v Schultz, 168 AD2d 468). We also note that the child’s testimony was corroborated by other physical and testimonial evidence indicating that the defendant had sodomized the child (see, CPL 60.20 [3]).

The defendant’s challenge to the prosecutor’s opening statement and summation is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245) and, in any event, did not exceed the bounds of permissible rhetoric afforded counsel during argument (see, People v Ashwal, 39 NY2d 105; People v Wilson, 173 AD2d 751).

The defendant’s remaining contentions are unpreserved for appellate review, without merit, or do not warrant reversal. Bracken, J. P., O’Brien, Santucci and Joy, JJ., concur.