THE PEOPLE &C., RESPONDENT, v. EDWIN MORALES, APPELLANT.
80 N.Y.2d 450, 606 N.E.2d 953, 591 N.Y.S.2d 825 (1992).
December 17, 1992
2 No. 284
Decided December 17, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Arthur H. Hopkirk, for Appellant.
Jodi L. Mandel, for Respondent.
KAYE, J.:
Did defendant have a right to be present when the trial court
preliminarily examined a child-witness to determine whether she
understood the nature of an oath? We conclude that defendant did not
have that right, and accordingly sustain his conviction.
I.
In March 1988, defendant was indicted for rape, sodomy and other
crimes against R.H. and E.T., children with whom he lived for several
years in the role of stepfather. Both children testified at trial;
E.T. was at that time thirteen years old and R.H. nine. As R.H. was
less than twelve, the trial court was required to find that she
understood "the nature of an oath" before she could give sworn
testimony (CPL 60.20(2)).
The court conducted a competency inquiry after trial had commenced,
but outside the jury's presence. Informing defense counsel that the
proceeding was "not something your client has a right to be present
at," the Judge excluded defendant from the hearing so the child would
not be "distracted by anyone at all." The court permitted defense
counsel and the prosecutor to attend but not directly examine the
witness, asking instead for submission of any additional questions the
attorneys might wish to have posed.
After several general questions about school, the Judge asked R.H. if
she knew why she was in court, to which she answered: "Because Edwin,
the father of my brothers, he did fresh things to me." The court then
ascertained whether the child knew the difference between telling the
truth and a lie, and her understanding of the consequences of lying.
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. EDWIN MORALES, APPELLANT.
We conclude that defendant did not have that right, and accordingly sustain his conviction.
As R.H. was less than twelve, the trial court was required to find that she understood "the
The court conducted a competency inquiry after trial had commenced, but outside the jury's
Informing defense counsel that the proceeding was "not something your client has a right to
The court permitted defense counsel and the prosecutor to attend but not directly examine the
The court then ascertained whether the child knew the difference between telling the truth
arguing that his constitutional and statutory rights to be present at trial were violated
Analysis begins with the nature of the proceeding from which defendant was excluded.
CPL 60.20establishes a rebuttable presumption that a child less than twelve is incapable of
Even if the court finds that the child cannot appreciate an oath, it may permit unsworn
As the only purpose of a CPL 60.20 hearing is to determine a witness' testimonial capacity,
In Snyder v Massachusetts the Supreme Court held that a defendant's presence was required as
the Kentucky Supreme Court overturned defendant's sodomy convictions because defendant was
More pertinent to the present case, the Supreme Court also rejected defendant's
We conclude, therefore, that defendant's presence at the competency hearing would have been
Rather, based on our own body of state law, we look to the effect that defendant's absence
In these circumstances, moreover, we perceive no greater right to be present under our State
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