Submitted by John W. Condon, for Appellant.
Submitted by William G. Gandy, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
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.
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On review of submissions pursuant to section 500.4 of the Rules, order affirmed in a memorandum. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur.