People v. DiFabio

79 N.Y.2d 836 (1992)

The People of the State of New York, Respondent, v. Anthony DiFabio, Appellant.

Court of Appeals of the State of New York.

Decided January 9, 1992.

John W. Condon for appellant.

William G. Gandy, Special District Attorney, for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

*837MEMORANDUM.

The order of the Appellate Division should be affirmed.

*838The 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 N.Y.2d 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.

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.