Opinion
1884
October 15, 2002.
Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about August 21, 2001, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed acts which, if committed by an adult, would constitute 10 counts of sodomy in the first degree, and placed him with the Office of Children and Family Services for a period of 24 months, unanimously modified, on the law, to the extent of vacating the delinquency adjudication as to counts 1,3,5,7 and 9 of the petition, dismissing those counts and reducing appellant's period of placement to 18 months, and otherwise affirmed, without costs.
RAYMOND E. ROGERS, for appellant.
A. ORLI SPANIER, for Presentment Agency.
Before: Andrias, J.P., Rosenberger, Marlow, Gonzalez, JJ.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. The court properly permitted the eight-year-old victim to give sworn testimony since his responses established that he sufficiently understood the difference between truth and falsity, the moral duty to tell the truth and the consequences of lying (see People v. Nisoff, 36 N.Y.2d 560, 565-566;People v. Cordero, 257 A.D.2d 372, lv denied 93 N.Y.2d 968). There is no basis upon which to disturb the court's determinations concerning credibility. The victim provided a detailed, convincing account of appellant's acts of sodomy.
As the presentment agency concedes, the Family Court lacked jurisdiction over appellant for the five counts brought under Penal Law § 130.50(1) because those counts require an initial filing with, and removal from, the Criminal Court (Family Court Act § 301.2[b]). As the presentment agency further concedes, since the Family Court determined that appellant did not require a restrictive placement, the maximum period of placement is 18 months (Family Court Act § 353.3; § 353.5).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.