People v. Hendy

159 A.D.2d 250, 552 N.Y.S.2d 243, 1990 N.Y. App. Div. LEXIS 2369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1990
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered December 8, 1987, convicting defendant, after a bench trial, of two counts of sodomy in the first degree (Penal Law § 130.50 [1], [3]) and sentencing him to two concurrent terms of imprisonment of IV2 to 15 years, is unanimously affirmed.

In this trial of the sodomy of a seven-year-old boy, defendant argues that the child lacked the testimonial capacity to be sworn. It is within the discretion of the Judge to make this determination based on the witness demonstrating that he has the intelligence and capacity to justify his testimony as well as an understanding of the nature of an oath. (People v Nisoff, 36 NY2d 560.) The child indicated that he understood the difference between real and pretend and that he would get a "whipping” if he did not tell the truth. The court did not abuse its discretion by finding the child competent to give sworn testimony.

Furthermore, defendant was not deprived of his right to prepare a defense because he could not obtain safe access to the library as the result of beatings by other inmates. Defendant, who insisted that he represent himself pro se, was assigned advisory counsel who assisted him through the Wade hearing and trial. (See, Tate v Carlson, 609 F Supp 7.) Defendant does not contend that counsel was inadequate nor has he set forth any specific facts to show how he was prejudiced by lack of access to the law library. Concur — Ross, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.