40 A.D.2d 789 | N.Y. App. Div. | 1972
Judgment, Supreme Court, Bronx County, rendered May 20, 1971, convicting defendant, after a jury trial, of four counts each of the crimes of sodomy in the first degree, sexual abuse in the first degree and endangering the welfare of a child, affirmed. We are in accord with the dissent insofar as it states that the trial court erred in allowing defendant’s daughter-in-law to testify to what her children told her. At best, her testimony would be admissible only for the purpose of showing that complaint was made by the victim at the first available opportunity. Her testimony was not so limited. However, we consider the error harmless in view of the over-all proof of guilt. (Code Grim, Pro., § 542.) Concur — Stevens, P. J., Markewich, Kupferman and Capozzoli, JJ. Murphy, J., dissents in the following memorandum: Defendant was convicted after a jury trial of sodomy and other related acts committed on his four young grandchildren. The three oldest ones, each less than ten years of age, were sworn and permitted to testify to certain deviate sexual acts committed on themselves and on their brothers and sister. Defendant denied molesting the children and produced two alibi witnesses who testified that he could not have committed the acts complained of because he was not