People v. Stickles

Here, after a lengthy voir dire prior to swearing her in as a witness, the victim, then 10 years of age, testified that the first incident occurred in December 1996 while she was staying at defendant’s home. She described how defendant started rubbing her stomach and then moved his hands into her underwear and “down to [her] private”^[1] while they were watching television together. The child recounted a similar incident in April 1997 and continuing instances of abuse which she alleged occurred three or four times between December 1996 and April 1997. She further relayed that after the initial incident and on one other occasion, defendant warned her that she “might get in big trouble” if she told anyone about these events. The victim’s mother testified that her daughter disclosed information to her regarding defendant’s actions in April 1997. Thereafter, during a meeting between the victim’s mother, defendant and defendant’s wife, defendant apologized but asserted that the child “put his hand between her legs”. This evidence, when viewed in a light most favorable to the prosecution (see, People v Harper, 75 NY2d 313 , 316; People v Contes, 60 NY2d 620 , 621), was sufficient to establish that there was sexual contact between defendant and the victim, an individual less than 11 years old, thereby satisfying the elements of sexual abuse in the first degree (see, People v Soulia, 263 AD2d 869 ; People v Roe, 235 AD2d 950 , lv denied 88 NY2d 1099 ) and endangering the welfare of a child (see, People v Bailey, 252 AD2d 815 , lv denied 92 NY2d 922 ).

We also reject defendant’s assertion that the testimony of the child’s mother contained inadmissible hearsay. In the absence of an objection to the mother’s testimony regarding the conversation she had with defendant wherein he described his version of the physical contact with the child, defendant’s hearsay contention was not preserved for appeal (see, CPL 470.05 [2]; People v McGuinness, 245 AD2d 701 , 702). However, were we to consider this issue, we would find that the testimony

Defendant next argues that he was denied due process when the prosecutor failed to promptly convey to the defense a copy of an entry from the victim’s diary of a writing and a picture depicting defendant as a stick figure. The diary entry supported the victim’s testimony that the revelation of defendant’s conduct to the victim’s mother occurred on April 8, 1997. To the extent that the diary page could be considered exculpatory material, the prosecution’s failure to deliver the material to defendant in a timely manner^[2] did not constitute reversible error because defendant was ultimately provided the evidence, had sufficient opportunity to cross-examine the witness concerning the diary entry, and a review of the record reveals no reasonable probability that nondisclosure of the evidence at an earlier point in the proceedings contributed to the final disposition (see, People v Smyers, supra, at 774-775 ).

Defendant’s assertion that County Court should have dismissed the indictment because the victim’s competency was not established prior to testifying before the Grand Jury is meritless. As defendant was convicted on legally sufficient evidence, he is precluded, as a matter of law, from challenging the sufficiency of the evidence presented to the Grand Jury (see, People v Schulze, 224 AD2d 729 , lv denied 88 NY2d 853 ; see also, People v Wilson, 255 AD2d 612 , lv denied 93 NY2d 981 ).

We also find unavailing defendant’s claim that he was denied a fair trial because of a hearing impairment. Prior to jury selection, this issue was addressed by County Court and defendant agreed that if he experienced any difficulty in hearing the proceedings, he would advise the court. Defendant’s counsel made no request for other accommodation and defendant responded to all of the court’s inquiries during pretrial proceedings without apparent difficulty. Defendant requested a read back of testimony at only one juncture during the trial. In re-