People v. Rouff

Appeal by the defendant from a judgment of the County Court, Nassau County (Belli, J.), rendered June 23, 1987, convicting him of sodomy in the first degree (three counts) and sexual abuse in the first degree (two counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed, and the matter is [339] remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5). The defendant stands convicted of sodomizing and sexually abusing his six-year-old nephew while staying at the two-family home of the boy’s father (the defendant’s brother) on the morning of October 12, 1985. The events took place at 7:00 a.m. according to the uncontroverted, sworn testimony of the complainant. The defendant correctly asserts that the trial court erred in prospectively precluding him from calling witnesses to testify that they did not see the defendant in the home on the day in question. The witnesses were the defendant’s brother and sister-in-law, who lived in the downstairs portion of the two-family home. It is clear that the right to present evidence by witnesses of one’s own choosing is a fundamental ingredient of due process (see, Jenkins v McKeithen, 395 US 411, 429, reh denied 396 US 869). The testimony of a defendant’s witness should never be prospectively excluded as irrelevant unless his or her offer of proof reveals that the evidence is offered in palpable bad faith (see, People v Gilliam, 37 NY2d 722, revg 45 AD2d 744; People v Cuevas, 67 AD2d 219). We note, however, that the proffered testimony was of weak probative value since there was no assertion in the offer of proof that the witnesses were in the upstairs portion of the house on the day in question or that they were even awake at the time the alleged acts took place. In light of the victim’s specific testimony that he was sodomized and sexually abused in the living room of the upstairs portion of the two-family residence in the early morning hours, there was no reasonable possibility that the refusal to admit the proffered testimony, which was of questionable evidentiary value, might have contributed to-the conviction. As such, the error was harmless (see, People v Crimmins, 36 NY2d 230). The defendant’s contention that the trial court did not conduct a proper inquiry into whether the victim was competent to be sworn is not preserved for our review (CPL 470.05 [2]), and, in any event, is without merit. The complainant was eight years old when he testified. It is well settled that the decision of whether an infant witness is competent to testify under oath rests primarily with the trial court which had the opportunity to view the child’s manner and demeanor (see, People v Estela, 136 AD2d 728). The complainant demonstrated the ability to understand the difference between telling a lie and telling the truth, and said that he would be punished by the court, his parents and God if he told a lie (see, [340] People v Estela, supra). Furthermore, he possessed sufficient intelligence to recall the events in question and to relate them in a clear manner. Furthermore, the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80, 86). The defendant’s remaining contentions, many of which are unpreserved for appellate review, do not warrant reversal (see, People v Johnson, 57 NY2d 969; cf., People v Burke, 72 NY2d 833; People v Jacquin, 71 NY2d 825; People v Crimmins, 36 NY2d 230, supra). Lawrence, J. P., Kunzeman and Fiber, JJ., concur.