IN RE: Dandre H. (2011)

Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for presentment agency.

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Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about December 16, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of criminal sexual act in the first degree, sexual abuse in the first degree, and sexual misconduct, and placed him on probation for a period of 18 months, unanimously affirmed, without costs.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).   There is no basis for disturbing the court's credibility determinations.

The court properly permitted the five-year-old victim to give sworn testimony.   The victim's voir dire responses established that he sufficiently understood the difference between truth and falsity, that lying was wrong, and that lying could bring adverse consequences (see People v. Nisoff, 36 N.Y.2d 560, 565–566 [1975];  People v. Cordero, 257 A.D.2d 372 [1999], lv denied 93 N.Y.2d 968 [1999] ).   Furthermore, there was significant corroborating testimony provided by an adult family member.   This witness entered the bedroom occupied by appellant and the victim, and saw indications that a sex act had just occurred.

To the extent certain testimony exceeded the bounds of the prompt outcry exception to the hearsay rule (see People v. McDaniel, 81 N.Y.2d 10, 16–17 [1993] ), the error was harmless.   In this nonjury trial, the court is presumed to have considered only proper evidence in reaching its verdict (see People v. Moreno, 70 N.Y.2d 403, 406 [1987] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK