Opinion
12371
Decided and Entered: July 24, 2003.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered June 19, 2000, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (11 counts), sodomy in the first degree (10 counts), rape in the first degree and endangering the welfare of a child.
Livingston L. Hatch, Keeseville, for appellant.
Richard E. Cantwell, District Attorney, Plattsburgh, for respondent.
Before: Cardona, P.J., Mercure, Crew III, Rose and, Lahtinen, JJ.
MEMORANDUM AND ORDER
A grand jury indicted defendant, charging him with numerous counts of sexual abuse in the first degree, sodomy in the first degree, rape in the first degree and endangering the welfare of a child. The charges arose from defendant's abuse of his stepdaughter over a 1½-year period. At a Huntley hearing, defendant asserted that a statement that he gave to the police in October 1999 should be suppressed because his waiver of hisMiranda rights was not knowing and voluntary. In the statement, defendant admitted that in November 1997, he was arrested and placed on probation for hitting the then-seven-year-old victim with a belt, leaving marks on her. Defendant stated that thereafter he was afraid to leave marks on the victim again, so he punished her by pushing his finger or penis into her rectum, putting his penis into her mouth or placing his finger in her vagina. He further admitted that these incidents took place at the family's home when no one else was present except defendant's three-year-old daughter.
A State Police investigator, Tracy Eggleston, testified that he typed defendant's statement on his laptop computer after defendant was advised of his Miranda rights. Eggleston used the backspace key to make corrections as necessary and did not make any notes while defendant gave his statement. At the conclusion of the hearing, County Court determined that defendant's statement was voluntarily, knowingly and intelligently made and permitted use of the statement at trial.
During trial and outside the presence of the jury, County Court conducted a hearing pursuant to CPL 60.20 to determine if the victim, who was 10 years old at the time of trial, was qualified to give sworn testimony. After County Court ruled that the victim could give sworn testimony, she testified that defendant forced her to engage in anal and oral sex on numerous occasions, vaginal sex once and that he sometimes placed his finger in her rectum.
Thereafter, defendant objected again to admission of the October 1999 statement he gave to Eggleston, asserting that it should not be admitted into evidence because Eggleston failed to save nonfinal drafts of the statement. Rejecting this argument, County Court permitted Eggleston to testify. The court allowed defense counsel to fully question Eggleston about his conversation with defendant during the taking of the statement. Defendant subsequently read the statement and testified that its contents were not true.
The jury was not charged on four counts alleging the crime of sodomy in the first degree; it found defendant guilty of all the remaining charges. Defendant was sentenced to an aggregate prison term of 16 years. Defendant now appeals and we affirm.
Initially, we reject defendant's argument that reversal is warranted because the People violated People v. Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866) by failing to preserve drafts of nonfinal versions of the statement that defendant gave Eggleston. We observe that police notes and written recordings of a defendant's confession constituteRosario material (see e.g. People v. Nieves, 205 A.D.2d 173, 184-185, affd sub nom. People v. Stokes, 88 N.Y.2d 618; People v. Barnes, 201 A.D.2d 375, 375, lv denied 83 N.Y.2d 869). Here, although the People provided defendant with the final, saved version of his statement, Eggleston did not save earlier drafts to which he admitted corrections had been made. Nor did Eggleston make any notes regarding these changes. The parties agree that the prior drafts should be considered lost or destroyedRosario material and defendant asserts that County Court erred in admitting the final version of the statement into evidence. Assuming without deciding that the prior unsaved drafts of the statement constitute lost or destroyed Rosario material (see generally Bandler, The New York Rosario Rule Applied to Computerized Documents: The Rigid and Impractical Duplicative Equivalent Doctrine Requires Modification, 22 Pace L Rev 407, 443-445 [2002]), we perceive no error here.
"Where the People fail to exercise due care in preserving Rosario material, and the defendant is prejudiced thereby, the [trial] courtmust impose an appropriate sanction" (People v. Joseph, 86 N.Y.2d 565, 570 [internal quotation marks and citations omitted]). The sanction to be imposed is "depend[ent] upon the degree of prosecutorial fault and the resulting prejudice to the defendant" (People v. Banch, 80 N.Y.2d 610, 616; see People v. Martinez, 71 N.Y.2d 937, 940) and our "review is limited to determining whether the trial court acted within the bounds of its discretion in selecting a sanction" (People v. Banch, supra at 616).
Nothing in the record before us suggests that Eggleston acted in bad faith in failing to save drafts of defendant's statement or that he realized that editing defendant's statement constituted destruction of evidence (see People v. Quiles, 198 A.D.2d 448, 448, lv denied 83 N.Y.2d 857). Furthermore, defendant fails to explain how he was prejudiced by Eggleston's failure to save drafts of the unfinished statement and does not claim that any meaningful changes were made to the statement. Rather, he offers only mere speculation that the prior nonfinal drafts might have contained material that could have been helpful on cross-examination. Moreover, defendant testified at trial that he did not make or even read the statement; he claimed that he initialed and signed the statement only because the police told him to do so. Thus, Eggleston's edits of the statement would not have had any relevance, given defendant's claim that the police essentially fabricated the statement. Inasmuch as defendant has failed to show prejudice and defense counsel was permitted to cross-examine Eggleston regarding his failure to save the prior drafts, we conclude that County Court did not abuse its discretion in refusing to apply the extreme sanction of preclusion requested by defendant (see People v. Haupt, 71 N.Y.2d 929, 930-931; People v. Bass, 277 A.D.2d 488, 494, lv denied 96 N.Y.2d 780; People v. Quiles, supra at 449; cf. People v. Joseph, supra at 571-572).
Defendant's argument that County Court abused its discretion in allowing the 10-year-old victim to give sworn testimony is also unpersuasive. CPL former 60.20(2), which was in effect at the time of trial, provided that "[a] child less than [12] years old may not testify under oath unless the court is satisfied that [the child] understands the nature of an oath." This rebuttable presumption is overcome if, after inquiry, the trial court is satisfied that "the child know[s] the difference between a lie and the truth; * * * the child know[s] the meaning of an oath; * * * the child understand[s] what can happen if [he or] she tells a lie; and * * * the child ha[s] the ability to recall and relate prior events" (People v. Morales, 80 N.Y.2d 450, 453 [internal quotation marks and citation omitted]; see People v. Johnston, 273 A.D.2d 514, 517, lv denied 95 N.Y.2d 935). Here, the examination of the victim by County Court, the People and defense counsel revealed that the victim received high honors in school, understood the difference between lying and telling the truth, and believed in God and that there would be consequences if she did not tell the truth. Accordingly, County Court did not abuse its discretion in permitting the victim to give sworn testimony (see People v. Johnston,supra at 517; People v. Christie, 241 A.D.2d 699, 700, lv denied 90 N.Y.2d 938). That the victim was unable to articulate what she understood an oath to be does not compel a different result (see People v. Young, 225 A.D.2d 339, 339-340, lv denied 88 N.Y.2d 971).
CPL 60.20(2) was amended effective February 1, 2001 to change the age of presumed competence from 12 years old to nine years old.
In addition, we conclude that County Court did not abuse its discretion in finding that Judith Sessenwein, a nurse practitioner, was qualified to render a medical opinion. "As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court" (People v. Lee, 96 N.Y.2d 157, 162). Thus, the trial court has the responsibility of determining whether an expert possesses adequate skill, training, education, knowledge or experience (see People v. Burt, 270 A.D.2d 516, 518). We have previously noted that "an expert's competency can be derived from either formal training or long observation and actual experience" (id. at 518 [internal quotation marks and citation omitted] [emphasis in original]) and that "it is settled that expert medical testimony need not come from a licensed doctor" (People v. Kehn, 109 A.D.2d 912, 914; see People v. Zavaro, 138 A.D.2d 430, 431 [1988], lv denied 71 N.Y.2d 1035; Badke v. Barnett, 35 A.D.2d 347, 349, lv denied 28 N.Y.2d 482).
Here, the record demonstrates that Sessenwein has considerable experience as a nurse practitioner in the field of pediatric and adolescent gynecology and possesses a nurse practitioner's license from the state, which gives her the authority to make medical diagnoses (see Education Law § 6902 [a]). Accordingly, we cannot say that County Court abused its discretion in finding Sessenwein qualified to testify as a medical expert on matters involving child sexual abuse (see generally People v. Carroll, 95 N.Y.2d 375, 384; Matter of Melissa L. [Benjamin O.], 276 A.D.2d 856, 857, lv denied 96 N.Y.2d 702.
We have considered defendant's remaining arguments and find them to be meritless.
Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.