OPINION OF THE COURT
In this рrosecution involving several counts of sexual offenses committed by defendant against four children, we exercise our interest of justice jurisdiction to reach various claims implicating constitutional rights, while declining to extend this discretionary review tо those counts which are not directly affected by the errors and which are supported by overwhelming evidence.
By indictment No. 2531/86, dated May 28, 1986, defendant was charged with the rape and sodomy of his nine-year-old niece, child A,
Prior to trial, the People moved to consolidate the two indictments on grounds, inter alia, that the offenses were "dеfined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]), and that the public interest in avoiding duplicative, lengthy and expensive trials outweighed any unfair disadvantage to defendant. (See, People v Lane,
As relevant to this appеal, the People’s case consisted of the following evidence: child A, 11 years old at the time of trial, testified that in March 1986, she lived at 2084 Homer Avenue in the Bronx, with various relatives, including defendant, who was known to the family as "Gene”. While asleep one night in March 1986, child A awoke to find that defendant had tied her hands and feet to the bed and was undressing her. He forced his penis into her mouth until she vomited, and then placed his penis into her vagina. Frightened of defendant, child A told no one about the sexual attack. Child A further testified that on nights when her 2 ^-year-old cousin, child D, stayed over, she could hear the small child crying from defendant’s room in the middle of the night.
Child C, 15 years old at the time of the trial, testified that during the period between March 30 and June 30, 1985, he saw defendant get on top of child D, put his penis into her vagina, and "wiggle” around. When questioned by the Trial Judge, child C stated that he had witnessed his uncle do this to child D a "few times” on different days. During the period in question defendant forced child C on one occasion to place his finger intо child D’s vagina and on another to put his penis into her vagina. Child C further testified that he, too, was sexually abused by defendant, stating that his uncle had touched his penis on several occasions and had once "put his private part in”. At these times, defendant wоuld strike child C in the face until he overcame the youngster’s resistance.
The People’s case also included the testimony of child D’s mother, Shirley T., who stated that between March and June 1985, child D regularly visited her father, Myron J., at the Homer Avenue address, from Sundаy morning to Monday night, and at times on weekdays. During this period, Shirley T. began to observe disturbing changes in her daughter’s behavior. The child, who was toilet trained, had begun to wet her pants and the bed at night. She also engaged in other forms of regressive behavior, such as whining аnd speaking especially babyishly, had begun to play with her dog’s genitals, and was having nightmares during which she would call
Harrison testified that she had examined child D at the Montefiore Medical Center and found evidence оf hymenal scarring indicative of penetration by finger, penis or other object. Also testifying on behalf of the People was Dr. Ann Meltzer, whose expert opinion was that the behavioral symptoms exhibited by child D were consistent with the child’s having been sexually abused. Medical records for child D, as well as for child A and child C, were introduced as part of the People’s case.
Testifying on behalf of defendant was Pamela J., his sister-in-law and child D’s stepmother. Pamela J., who lived at the Homer Avenue house with child D’s father, was not there for five days after the birth of her baby on March 11, 1986. She testified, in pertinent part, that it was impossible for sounds of crying to be carried through the vents from defendant’s basement apartment to child A’s top floor bedroom, and that child D sleрt in the room that she and Myron J. occupied.
Defendant, who had never been arrested before, took the stand and denied having committed any of the crimes charged, stating that the children were lying. He acknowledged that he was unemployed during the spring of 1985 and after March 17 in 1986 and, although living at the Homer Avenue house with his girlfriend at the time of trial, defendant testified that he lived at his girlfriend’s house for periods beginning in November 1985 and including March 1986.
The defense also offered, through the testimony of Herman White, an administratоr at the Soundview Health Center, a report dated May 5, 1986, of a Doctor O’Donnell, who discerned "no vaginal trauma or objective evidence of physical or sexual abuse” in an examination of child D. Because of her regressive behaviоr, age-inappropriate discussion of sexual matters and genitalia, and complaints of pain in the vagina after a visit to her father’s house, Dr. O’Donnell nevertheless concluded that there was a strong suggestion that child D had been sexually abused.
On appeal, defendant acknowledges that "the fact that Child D had been sexually abused was uncontrovertible”, but urges that the People failed to prove the crimes involving her
It is well settled that matters of credibility are reserved for the triers of fact, who have had an opportunity to observe the demeanor of the witnеsses and are therefore in the best position to weigh their testimony. (People v Malizia,
For these reasons, we hold that the evidence presented, viewed in. the light most favorable to the People (see, People v Contes,
However, it is this court’s further conclusion that child C’s trial testimony regarding defendant’s rape of child D effectively rendered count 1 of indictment No. 4969/86 duplicitous.
We also consider, in the interest of justice, defendant’s unpreserved claim that testimony consisting of child D crying, "Uncle Gene, stop” during nightmаres should have been excluded as inadmissible hearsay. (See, Richardson, Evidence § 200 et seq. [Prince 10th ed]; People v Caviness,
Finally, we conclude that defendant’s conviction on count 2 of indictment No. 4969/86, which charges the sexual abuse of child D, was based on insufficient evidence. This claim, which implicates the People’s burden of proof, cannot be waived. (People v Velasquez,
Defendant’s remaining contentions of error have not been preserved for appellate review as a mattеr of law (see, CPL 470.05 [2]) and we decline to reach them in the interest of justice.
Accordingly, the judgment, Supreme Court, Bronx County (Ivan Warner, J.), rendered January 7, 1988, convicting defendant, after a jury trial, of rape in the first degree (Penal Law § 130.35 [3] [three counts]), sodomy in the first degree (Penal Law § 130.50 [1]), sexual abuse in the first degree (Penal Law § 130.65 [3]) and coercion in the first degree (Penal Law § 135.65 [2]), and sentencing him to concurrent indeterminate terms of imprisonment of from 7 to 21 years on the rape and sodomy counts, and 2Vz to 7 years on the remaining counts, should be modified, on the law, the facts, and as a matter of discretion in the interest of justice, to reverse the convictions and vacate the sentences on counts 1 and 2 of indictment No. 4969/86, and dismiss the indictment as to said counts, with leave to the People to resubmit count 1 to another Grand Jury, and otherwise affirmed.
Judgment, Supreme Court, Bronx County, rendered January 7, 1988, modified, on the law, the facts, and as a matter of discretion in the interest of justice, to reverse the convictions and vacatе the sentences on counts 1 and 2 of indictment No. 4969/86, and dismiss the indictment as to said counts, with leave to the People to resubmit count 1 to another Grand Jury, and otherwise affirmed.
Notes
. The names of the four child victims have been substituted by the letters A-D through this writing.
. The testimony of сhild B was stricken from the record, and the rape charges pertaining to her dismissed when, upon taking the stand, she turned her head to the wall and cried, and was unable to testify beyond answering "Yes” to questions of whether her uncle did "something” and "touched” her in March 1986.
. Count 1 charged defendant with the rape of child D as a minor under the age of 11. Count 3 of indictment No. 4969/86, which charged the forcible rape of child D, was not submitted to the jury.