Opinion
January 29, 1985
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of sexual abuse of his three children, all of whom were less than 12 years old at the time of trial, rests solely on their testimony. Defendant contends that the court erred in permitting the three infant witnesses to give sworn testimony and that the corroborating testimony of the children was insufficient to establish his guilt. We disagree.
A child "less than twelve years old may not testify under oath unless the court is satisfied that he understands the nature of an oath" (CPL 60.20, subd 2). Although a child who does not understand the nature of an oath "may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof" (CPL 60.20, subd 2), "[a] defendant may not be convicted of an offense solely upon unsworn evidence" (CPL 60.20, subd 3). In addition, due to the nature of the crimes charged, defendant could not be convicted solely on the testimony of one of the victims without corroborating evidence (Penal Law, § 130.16). Victims abused in each other's presence can corroborate each other's testimony ( People v. Fielding, 39 N.Y.2d 607), but unsworn witnesses cannot corroborate each other ( People v. St. John, 74 A.D.2d 85, app dsmd 53 N.Y.2d 704). Therefore, it was essential to the prosecution in this case that at least one of the children qualify to take the oath and give sworn testimony (see People v. Coleman, 42 N.Y.2d 500, 506).
The voir dire examination conducted by the trial court was sufficient to show that the children appreciated the nature of an oath and their duty to tell the truth. In permitting them to give sworn testimony the trial court did not abuse its broad discretion which is subject only to "limited appellate review" ( People v. Parks, 41 N.Y.2d 36, 46; see, also, People v. Nisoff, 36 N.Y.2d 560, 566; People v. Rowell, 88 A.D.2d 647, 648, revd on other grounds 59 N.Y.2d 727). We have examined the other contentions raised by defendant and find them to be without merit.