IN RE: DANTE W.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: DANTE W., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: October 18, 2001

WALLACH, J.P., RUBIN, BUCKLEY, FRIEDMAN, and MARLOW, JJ. Raymond E. Rogers, for Dante W. Ronald E. Sternberg, Presentment Agency.

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 2 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 Court Act § 343.1 [2];  People v. Cordero, 257 A.D.2d 372, 374, 684 N.Y.S.2d 192, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099;  Matter of Ralph D., 163 A.D.2d 752, 753-754, 557 N.Y.S.2d 1003).

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 A.D.2d 107, 704 N.Y.S.2d 476).