People v. Boyd , 122 A.D.2d 273 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered April 14, 1983, convicting him of sexual abuse in the first degree, unlawful imprisonment in the second degree, and endangering the welfare of a child, after a nonjury trial, and imposing sentence.

Judgment affirmed.

Although charged with the crimes of rape in the first degree (two counts) and sodomy in the first degree (two counts), the defendant was found guilty of the lesser included offense of sexual abuse in the first degree. The verdict did not specify from which of the greater offenses the lesser count derived. Reviewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620; People v Montanez. 41 NY2d 53, 57), however, it is clear that the defendant was guilty of sexual abuse in the first degree in view of the facts that sufficient proof of forcible compulsion exists (Penal Law § 130.65 [1]) and his victim was under 11 years of age (Penal Law § 130.65 [3]). From the evidence adduced, a trier of fact could reasonably find that the complainant, who was only nine years old at the time of the incident, was forcibly shoved into the basement of her residence by the defendant and there subjected to sexual contact against her will. Although the infant attempted to extricate herself from the defendant’s control, she was unable to do so.

Assuming, arguendo, that the defendant was convicted of sexual abuse in the first degree as a lesser included offense of that count of the underlying indictment which charged him with sodomy in the first degree based upon the lack of consent by reason of the victim’s age, we realize that said conviction could not be sustained solely on the uncorroborated testimony of the alleged victim inasmuch as the underlying crime occurred prior to November 1, 1984 (Penal Law former § 130.16, amended by L 1984, ch 89, § 1). The required corroboration consisted of evidence tending to establish that an attempt was made to engage the alleged victim in sexual contact and to connect this particular defendant with the commission of that crime. On the record before us, we find sufficient evidence of corroboration to sustain the defendant’s conviction. In addition to the infant’s testimony, Pepito Lebrón, her great uncle, provided further evidence of the defendant’s guilt. When he went into the basement in search of the victim, he encountered the defendant, whose pants zipper was open and whose clothing was in a general state of disarray. Lebrón asked the defendant if he had seen the victim and received the following reply: "No, I haven’t. We’re down here getting off”. The witness saw no other person in the basement at that time. Shortly thereafter, he observed the defendant come up from the basement alone. He had no bottles in his possession and was not intoxicated. Lebrón later returned to the basement with a flashlight and found the victim hiding behind a partition. She was sobbing, her shirt was open and she appeared to be very frightened. No other person was observed exiting the basement during that interval. The fact that a physician who examined the victim later that evening was unable to conclude with any reasonable degree of medical certainty whether there had been actual penetration of the infant complainant’s vagina is not fatal to the People’s case.

Through the testimony of both the infant and her great uncle, the People established that the former was taken to the basement of her residence by the defendant and there subjected to sexual contact against her will. Such a finding supports not only a conviction for sexual abuse in the first degree but also for endangering the welfare of a child by knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a female child less than 17 years old (Penal Law § 260.10 [1]). Similarly, the defendant’s conviction for unlawful imprisonment in the second degree is supported by the complainant’s testimony that she unsuccessfully tried to get away from the defendant during the ordeal (Penal Law § 135.00 [1]; § 135.05). Inasmuch as it was the province of the trial court, as the trier of facts, to determine the credibility of the witness and the weight to be afforded the evidence (see, People v Barnes, 50 NY2d 375, 381; People v Cook, 99 AD2d 552, 553), the judgment appealed from should not be disturbed.

The defendant’s contention that the trial court erred in excluding evidence with respect to a prior unrelated rape of the complainant is without merit. The proffered evidence had no probative value (see, People v Mandel, 48 NY2d 952, cert denied and appeal dismissed 446 US 949, reh denied 448 US 908), and its exclusion was consistent with the legislative purposes of barring harassment of victims of sexual crimes concerning irrelevant issues and of safeguarding the jury from confusing and prejudicial matters which have no proper hearing on the issue of the guilt or innocence of the accused (CPL 60.42; People v Westfall, 95 AD2d 581).

Moreover, the trial court properly deemed the complainant qualified to be sworn as a witness. Absent an abuse of discretion (see, People v Parks, 41 NY2d 36, 46), the court’s determination with respect to a witness’s competency will not be disturbed. The court found, after a preliminary examination (cf. People v Rowell, 88 AD2d 647, revd on other grounds 59 NY2d 727), that the complainant understood and appreciated the difference between truth and falsity, and knew the consequences of telling a lie. It was, therefore, reasonable to conclude that she understood the gravity of an oath (CPL 60.20 [2]; People v Nisoff, 36 NY2d 560). Lazer, J. P., Thompson and Weinstein, JJ., concur.