               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

709
CAF 12-00202
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF CHRISTOPHER W.,
RESPONDENT-RESPONDENT.                                    MEMORANDUM AND ORDER
-------------------------------------------
ERIE COUNTY ATTORNEY, PETITIONER-APPELLANT.


MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (MICHAEL J. LISZEWSKI OF
COUNSEL), FOR PETITIONER-APPELLANT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR
RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered April 5, 2011 in a proceeding pursuant to
Family Court Act article 3. The order dismissed the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the petition is reinstated.

     Memorandum: In this juvenile delinquency proceeding pursuant to
Family Court Act article 3, petitioner appeals from an order granting
respondent’s motion to dismiss the petition. We agree with petitioner
that Family Court erred in granting respondent’s motion to dismiss the
petition as facially insufficient based on the court’s finding that
the alleged victim, an infant, was unable to give sworn testimony (see
§ 343.1 [2]). A delinquency petition is facially sufficient provided
that the nonhearsay allegations “of the factual part of the petition
or of any supporting depositions establish, if true, every element of
each crime charged and the respondent’s commission thereof” (§ 311.2
[3]; see Matter of Nelson R., 90 NY2d 359, 362).

     Here, the nonhearsay allegations in the victim’s supporting
deposition, if true, establish that respondent subjected her to sexual
contact by touching her vagina when she was three years old. The
petition is therefore facially sufficient to allege that respondent
committed acts that, if committed by an adult, constitute the crime of
sexual abuse in the first degree (see Penal Law § 130.65 [3]). The
fact that the alleged victim is unable to give sworn testimony is a
latent defect that does not affect the facial sufficiency of the
petition (see Nelson R., 90 NY2d at 361; Matter of Edward B., 80 NY2d
458, 464; Matter of Jermaine G., 38 AD3d 105, 109-110). Contrary to
the further contention of respondent, the court’s determination that
the alleged victim “cannot understand the nature of the oath and
therefore cannot provide the Court with sworn testimony” does not
                                 -2-                           709
                                                         CAF 12-00202

amount to an implicit determination that she does not have “sufficient
intelligence and capacity” to provide unsworn testimony (Family Ct Act
§ 343.1 [2]).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
