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People v. DiFabio

79 N.Y.2d 836 Court N.Y. Decision date 1992-01-09 English

Contents

Majority

p. 836
The People of the State of New York, Respondent, v Anthony DiFabio, Appellant.
Decided January 9, 1992
p. 837
APPEARANCES OF COUNSEL
John W Condon for appellant.
William G. Gandy, Special District Attorney, for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

p. 838
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 [6]; 190.25 [6]). Moreover, our interpretation of CPL 190.30 (6) in People v Groff ( 71 NY2d 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 NYCRR 500.4), order affirmed in a memorandum.

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