Opinion
June 22, 1990
Appeal from the Ontario County Court, Houston, J.
Present — Dillon, P.J., Boomer, Pine, Davis and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: None of the issues raised by defendant is meritorious. His sentence of 4 to 12 years' imprisonment was not excessive considering the nature of the crime and the age of the victim. The court properly denied defendant's motion to set aside the verdict because defendant failed to show that counsel did not advise him of the plea offer made prior to trial. The court properly received the sworn testimony of the infant witnesses, who were 9 and 11 years old at the time of trial. The decision whether to accept the sworn testimony of a child less than 12 years of age rests primarily with the Trial Judge and his decision will not be disturbed upon review unless clearly erroneous. In our view, the court did not err in determining that the infant witnesses understood the nature of an oath (see, CPL 60.20). Finally, we see no reason to disturb the suppression court's finding that defendant was not in custody when he gave his statement to the police.