Summary
In People v DiFabio (79 N.Y.2d 836, supra), the Court of Appeals held that it was not reversible error for the trial court to participate in the competency hearing of a child witness and rule on that issue, prior to the Grand Jury presentation.
Summary of this case from People v. ThomasOpinion
Decided January 9, 1992
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Donald J. Mark, J.
John W. Condon for appellant.
William G. Gandy, Special District Attorney, for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The trial court's child witness competency determination during the Grand Jury proceedings was proper, inasmuch as that participation was not precluded by the Criminal Procedure Law (see, CPL 190.30; 190.25 [6]). Moreover, our interpretation of CPL 190.30 (6) in People v Groff ( 71 N.Y.2d 101, 104 ["(a)t the Grand Jury stage of a criminal proceeding, determinations of witness competency must be made by the District Attorney"]) does not require a different result, because that interpretation defined the scope of the prosecutor's responsibilities. It did not curtail the trial court's power to participate in Grand Jury proceedings.
Finally, any error that may have resulted when the courts below permitted the victim's mother to recount statements made by the victim while asleep was clearly harmless, given the other overwhelming evidence of defendant's guilt.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.