In re Dante W.

Appellate Division of the Supreme Court of New York

In re Dante W.

287 A.D.2d 347, 731 N.Y.S.2d 687, 2001 N.Y. App. Div. LEXIS 9684

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 18, 2001

StatusPublished

This text of 287 A.D.2d 347 (In re Dante W.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Dante W., 287 A.D.2d 347, 731 N.Y.S.2d 687, 2001 N.Y. App. Div. LEXIS 9684 (N.Y. Ct. App. 2001).

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Opinion

—Order, Family Court, Bronx County (Harold Lynch, J.), entered on or about August 14, 2000, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crime of sexual abuse in the first degree (four counts), and placed him on probation for a term of two years, unanimously affirmed, without costs.

The court properly permitted the seven-year-old victim to give sworn testimony and the five-year-old victim to give unsworn testimony, in light of the voir dire responses of the two children demonstrating their ability to distinguish between truth and falsehood and to appreciate the consequences of lying in court, the older child’s additional responses indicating that he understood the nature of an oath, and the court’s observation of the victims’ maturity in comparison with other children their ages (see, Family Ct Act § 343.1 [2]; People v Cordero, 257 AD2d 372, 374, lv denied 93 NY2d 968; Matter of Ralph D., 163 AD2d 752, 753-754).

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court’s determinations concerning credibility. The credible evidence clearly established the element of sexual gratification (see, Penal Law § 130.00 [3]; § 130.65; Matter of Troy B., 270 AD2d 107). Concur — Wallach, J. P., Rubin, Buckley, Friedman and Marlow, JJ.

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—Order, Family Court, Bronx County (Harold Lynch, J.), entered on or about August 14, 2000, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crime of sexual abuse in the first degree (four counts), and placed him on probation for a term of two years, unanimously affirmed, without costs.

The court properly permitted the seven-year-old victim to give sworn testimony and the five-year-old victim to give unsworn testimony, in light of the voir dire responses of the two children demonstrating their ability to distinguish between truth and falsehood and to appreciate the consequences of lying in court, the older child’s additional responses indicating that he understood the nature of an oath, and the court’s observation of the victims’ maturity in comparison with other children their ages (see, Family Ct Act § 343.1 [2]; People v Cordero, 257 AD2d 372, 374, lv denied 93 NY2d 968; Matter of Ralph D., 163 AD2d 752, 753-754).

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court’s determinations concerning credibility. The credible evidence clearly established the element of sexual gratification (see, Penal Law § 130.00 [3]; § 130.65; Matter of Troy B., 270 AD2d 107). Concur — Wallach, J. P., Rubin, Buckley, Friedman and Marlow, JJ.

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Bluebook (online)

287 A.D.2d 347, 731 N.Y.S.2d 687, 2001 N.Y. App. Div. LEXIS 9684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dante-w-nyappdiv-2001.

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