This statute provides that if a child under 12 does not testify under oath, a defendant may not be convicted of an offense solely on the testimony of such child. The corroboration necessary hereunder is due to the nature of the witness, as distinguished from the corroboration due to the nature of the crime under section 130.16 Penal of the Penal Law. The requirements of CPL 60.20 apply to the testimony of the child witness, as well as to the testimony of the child victim, and the unsworn testimony of the one is insufficient to corroborate the unsworn testimony of the other (People v. Nolan, 2 A.D.2d 144; People v. Masiano, 253 App. Div. 454, construing Code Crim Pro, ยง 392, the forerunner of CPL 60.20). The purpose of the statute is to establish the trustworthiness of the unsworn children in each incident, rather than to prove the charge itself.
" Thus, it will be noted that to establish a defendant's guilt beyond a reasonable doubt so as to sustain his conviction either on the basis of a child's unsworn testimony or on the basis of his (defendant's) confession, independent corroborative evidence must be adduced. No case has been found in the Court of Appeals which authorizes a defendant's conviction upon a morals charge based solely on the corroboration of his confession by the child's unsworn testimony or based solely on the corroboration of such testimony by the defendant's confession โ a state of facts which we have here. The Legislature has recognized the inherent weakness and vulnerability of both types of evidence by explicitly requiring their corroboration to sustain a conviction (Code Crim. Pro., ยงยง 392, 395). And, in a case where the defendant was charged with the carnal abuse of two children, it was held that the "unsworn testimony of one infant may not be used to support the unsworn testimony of the other" ( People v. Nolan, 2 A.D.2d 144, 145). Even if it be assumed, however, that theoretically a conviction may be had on the corroboration of a confession by unsworn testimony, and vice versa, nevertheless, as already noted, in a morals case the proof taken as a whole must still be "clear and convincing" in order to establish defendant's guilt beyond a reasonable doubt.
Thus, in light of the nature of corroborating evidence in criminal cases, the courts have clearly held that one child's unsworn testimony cannot be corroborated by another child's unsworn testimony. ( People v. Norris, 28 Misc.2d 705; People v. Nolan, 2 A.D.2d 144; People v. Masiano, 253 App. Div. 454.) Corroboration is also needed to substantiate the testimony of an accomplice.
There is ample case law in New York for the proposition that the unsworn testimony of one infant victim cannot be used to support the unsworn testimony of the other infant victim ( People v. Nolan, 2 A.D.2d 144; People v. Masiano, 253 App. Div. 454; People v. Norris, 28 Misc.2d 705). Such is not the case here where there is one victim and four witnesses, all of whom might possibly present unsworn testimony.
In People v. Norris ( 28 Misc.2d 705, 706) the court again held that the unsworn testimony of two infants was insufficient to corroborate each other and after examining the "`other evidence'" presented further found the corroboration evidence was also insufficient. (See, also, People v. Nolan, 2 A.D.2d 144. ) These cases make it clear that where unsworn evidence is received, the court must look to the sufficiency of the other sworn evidence presented and the indictment or conviction will stand or fall upon such other sworn evidence.