IN RE: TYRESE D. (2018)

Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about September 16, 2016, 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 sexual abuse in the first and second degrees and endangering the welfare of a child, and placed him on probation for a period of 18 months, unanimously modified, on the law, to the extent of vacating the finding as to sexual abuse in the second degree and dismissing that count, and otherwise affirmed, without costs.

We need not determine whether appellant's statement should have been suppressed, because any error in admitting it was harmless beyond a reasonable doubt.  The evidence that appellant committed the charged offenses was overwhelming, and there is no reasonable possibility that the result would have been any different if his “essentially exculpatory” statement, in which he denied coercing the complainant to touch his penis, had been suppressed (Matter of Jahmeka W., 130 A.D.3d 437, 437, 13 N.Y.S.3d 372 [1st Dept. 2015], lv denied 26 N.Y.3d 909, 20 N.Y.S.3d 544, 42 N.E.3d 214 [2015] ).  His statement was a relatively minor component of the presentment agency's case, which included the testimony of the victim and a corroborating eyewitness, and the victim's report of the incident to medical personnel.

The court's fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  Moreover, as noted, we find that the evidence of appellant's guilt was overwhelming.  There is no basis for disturbing the court's determinations concerning credibility.

The court properly permitted the eight-year-old victim to give sworn testimony.  Her voir dire responses established that she “sufficiently understood the difference between truth and falsity, the nature of a promise to tell the truth, and the wrongfulness and consequences of lying” (Matter of Paulette C., 34 A.D.3d 395, 828 N.Y.S.2d 3 [1st Dept. 2006];  see also People v. Nisoff, 36 N.Y.2d 560, 565–66, 369 N.Y.S.2d 686, 330 N.E.2d 638 [1975] ).  There is nothing to indicate that the presentment agency's trial preparation of the victim would warrant a different conclusion regarding her swearability.

The finding as to second-degree sexual abuse is dismissed as a lesser included offense.