Opinion
December 23, 1976
Order, Family Court, Bronx County, entered September 30, 1976, adjudicating appellant a juvenile delinquent and placing him in the State training school for 18 months, unanimously affirmed, without costs and disbursements. The order of disposition appealed from herein was based upon a fact-finding determination that appellant had committed an act which, if done by an adult, would constitute the crime of second degree murder. Study of the record discloses that the testimony elicited at the fact-finding hearing, when considered in its totality, points conclusively to appellant's guilt and excludes, to a moral certainty, any other reasonable hypothesis. Further, the court at the fact-finding hearing properly permitted a 10-year-old girl to testify under oath after carefully inquiring as to her understanding with respect to the nature of an oath (CPL 60.20, subd 2; see People v Nisoff, 36 N.Y.2d 560). As to appellant's contention that the testimony of this witness should have been stricken because the transcript of her testimony before the Grand Jury was not certified, it suffices to point out that the Law Guardian for appellant knew of the lack of certification well in advance of the hearing and took no steps at any time to secure certification; the Law Guardian did conduct at the hearing an extensive cross-examination of the witness; there is no showing that the transcript was not accurate or that there was a contradiction between the witness' testimony at the hearing and before the Grand Jury. For these reasons it is clear that appellant's contention in this regard is not well taken. Finally, the determination rendered by the court at the dispositional hearing was amply supported by a preponderance of the evidence, indeed, beyond a reasonable doubt.
Concur — Markewich, J.P., Kupferman, Lupiano, Silverman and Nunez, JJ.