People v. Joval , 622 N.Y.S.2d 528 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered May 15, 1992, convicting him of rape in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court conducted a hearing on the competency of the nine-year-old complainant before she testified at the trial. After observing the child and listening to her testimony, the court found that she had the intelligence and capacity to understand the nature of an oath and thus permitted her to give sworn testimony. The resolution of the issue of witness competency is primarily the responsibility of the trial court because of its opportunity to view the witness, to observe the witness’s manner, demeanor, and presence of mind, and to undertake such inquiries which are effective to disclose the witness’s capacity and intelligence. The decision of the trial court as to a witness’s competency will not be disturbed on review unless, unlike here, it is clearly erroneous (see, Wheeler v United States, 159 US 523, 524-525; People v Parks, 41 NY2d 36, 46; People v Nisoff, 36 NY2d 560, 566).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., Lawrence, Ritter and Joy, JJ., concur.