Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
IN RE: CHRISTOPHER W., Respondent–Respondent. Erie County Attorney, Petitioner–Appellant.
In this juvenile delinquency proceeding pursuant to Family Court Act article 3, petitioner appeals from an order granting respondent's motion to dismiss the petition. We agree with petitioner that Family Court erred in granting respondent's motion to dismiss the petition as facially insufficient based on the court's finding that the alleged victim, an infant, was unable to give sworn testimony (see § 343.1[2] ). A delinquency petition is facially sufficient provided that the nonhearsay allegations “of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof” (§ 311.2[3]; see Matter of Nelson R., 90 N.Y.2d 359, 362, 660 N.Y.S.2d 707, 683 N.E.2d 329).
Here, the nonhearsay allegations in the victim's supporting deposition, if true, establish that respondent subjected her to sexual contact by touching her vagina when she was three years old. The petition is therefore facially sufficient to allege that respondent committed acts that, if committed by an adult, constitute the crime of sexual abuse in the first degree (see Penal Law § 130.65[3] ). The fact that the alleged victim is unable to give sworn testimony is a latent defect that does not affect the facial sufficiency of the petition (see Nelson R., 90 N.Y.2d at 361, 660 N.Y.S.2d 707, 683 N.E.2d 329; Matter of Edward B., 80 N.Y.2d 458, 464, 591 N.Y.S.2d 962, 606 N.E.2d 1353; Matter of Jermaine G., 38 A.D.3d 105, 109–110, 828 N.Y.S.2d 160). Contrary to the further contention of respondent, the court's determination that the alleged victim “cannot understand the nature of the oath and therefore cannot provide the Court with sworn testimony” does not amount to an implicit determination that she does not have “sufficient intelligence and capacity” to provide unsworn testimony (Family Ct. Act § 343.1[2] ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the petition is reinstated.
MEMORANDUM:
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: June 15, 2012
Court: Supreme Court, Appellate Division, Fourth Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)