In re Wade H. , 41 A.D.2d 817 ( 1973 )

Order, Family Court of the State of New York, New York County, entered on December 9, 1971, placing appellant at the New York State Training School, and the fact-finding determination entered on October 27, 1971, that appellant committed an act which, if committed by an adult, would constitute the crime of robbery in the second degree, unanimously reversed, on the law and the facts, and the petition against appellant dismissed, without costs and without disbursements. A juvenile delinquency petition was filed against appellant by the mother of Stewart Baker, an eight and one-half year-old child, accusing appellant of having forcibly taken Stewart’s shoes, pants and jacket, acts which, if done by an adult, would constitute the crimes of robbery in the second degree and assault in the third degree. Stewart Baker was offered to be sworn and testify in support of the petition. Over timely objection, the court, after a voir dire examination, ruled that the young witness could be sworn. In so doing the trial court erred. Under CPL 60.20 (subd. 2) a child less than 12 years old may not testify under oath unless the court is satisfied that he understands the nature of an oath. In our opinion, the record herein falls short of demonstrating an adequate basis for a conclusion that the infant witness understood the nature of an oath. Hence, the record must be reviewed as if the infant witness was permitted to give unsworn testimony. But, a defendant in a criminal proceeding may not be convicted of an offense solely upon the unsworn evidence of a child less than 12 years old. (CPL 60.20, subd. 3.) This requirement of corroboration in criminal cases has been held to apply to juvenile delinquency proceedings. (Matter of Steven 5., 30 A D 2d 442.) We find no such corroboration in the record. The order appealed from must therefore be reversed and the delinquency petition dismissed. Concur — Nunez, J. P., Kupferman, Murphy, Lane and Steuer, JJ.