Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James D. Gibbons, J.), rendered November 13, 2007, after a nonjury trial, convicting him of sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James D. Gibbons, J.), rendered November 13, 2007, affirmed.

The court properly admitted testimony concerning the infant complainant's statements to her friend and her foster mother on the basis that those statements constituted "prompt outcry." The infant complainant's communications to her friend regarding the unwanted sexual contact were made immediately after the incident occurred, and her statement to her foster mother was made later that same day when, for the first time since the incident, the infant complainant and her foster mother were alone. The statements, therefore, which did not contain unnecessary or impermissible details, qualified as "prompt outcry" under the circumstances (see People v McDaniel, 81 NY2d 10, 16-18 [1993]).

Defendant's present argument that the trial judge erred in reviewing the infant complainant's file from the Administration for Children's Services is unpreserved for appellate review. Indeed, defendant requested that the trial judge review the file in camera to determine whether any of its contents should be disclosed to defendant. As an alternative holding, we reject this argument on the merits, since the trial judge, sitting as the "fact finder[,] is deemed uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision" (People v Torres, 249 AD2d 229, 330 [1998] [internal quotations marks omitted]). We note that the trial judge did not make reference to any material in the file when delivering and explaining the verdict.

Defendant's present argument that the foster mother's testimony regarding communications she had with defendant, her husband, should have been precluded under the spousal privilege (see CPLR 4502[b]; CPL 60.10), is unpreserved for appellate review. As an alternative holding, we reject it on the merits. Similarly, defendant's present contention that the prosecutor acted as an unsworn witness is unpreserved for appellate review, and, as an alternative [*2]holding, we reject it on the merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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Decision Date: January 14, 2010