People v. Cordero

• Decision Date: 07 January 1999
• Citation: 257 A.D.2d 372,684 N.Y.S.2d 192
• Parties: 1999 N.Y. Slip Op. 1 The PEOPLE of the State of New York, Appellant, v. Juan CORDERO, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 192

684 N.Y.S.2d 192

1999 N.Y. Slip Op. 1

The PEOPLE of the State of New York, Appellant, v. Juan CORDERO, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 7, 1999.

Hilary Hassler, for appellant.

Jay L. Weiner, for defendant-respondent.

Before ROSENBERGER, J.P., and NARDELLI, MAZZARELLI, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Patricia Williams, J.), entered on or about October 7, 1996, which granted defendant's motion for a trial order of dismissal, unanimously reversed, on the law, the motion denied, the jury verdict finding defendant guilty of sodomy in the first degree, sexual abuse in the first degree and endangering the welfare of a child, reinstated, and the matter remanded for sentencing.

A jury found defendant guilty of anally sodomizing the complainant, his six-year old nephew. The trial evidence established that the complainant stayed at the apartment of his uncle on the night of November 11, 1995, with no one else present. The complainant woke up in the middle of the night because of a nightmare and asked defendant if he could sleep in his bed. Defendant agreed. Later, defendant removed the complainant's clothes and sodomized him. Defendant stopped in the middle of the assault to lubricate his penis with cooking oil he obtained from a kitchen cabinet.

The next day defendant brought the complainant with him to Brooklyn, and then brought him home. That evening, the complainant reported the incident to his two brothers and mother. The next day, the complainant's mother confronted defendant who denied the accusation. Ultimately, child welfare officials and the police were alerted, and defendant was arrested. Defendant's statement to the police confirmed the complainant's account of what occurred on November 11-12, except for the sexual assault.

At the close of the prosecution's case, and again after the entire case, defense counsel moved pursuant to CPL 290.10(1) for a trial order of dismissal. Counsel alleged that the trial evidence was legally insufficient because the complainant's unsworn testimony was not adequately corroborated. The prosecution opposed, arguing that the necessary corroboration was supplied by defendant's statement to the police, evidence of the complainant's changed demeanor after the incident, the complainant's prompt outcries to his brothers and mother, and the recovery by the police of the container of oil used during the attack. The court reserved decision until after the guilty verdict was rendered, but then granted the motion. The court subsequently filed a written opinion rejecting the People's arguments concerning the adequacy of the corroboration of complainant's unsworn testimony.

The People argue on this appeal that the trial court erred in refusing to allow the complainant to give sworn testimony. They further contend that even if the court's competence determination was correct, the court committed independent error in granting the motion to dismiss since the complainant's unsworn testimony was sufficiently corroborated by other evidence adduced by the People. As we agree with both of these arguments, we reverse and reinstate the jury's verdict.

"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[2] ). To overcome the rebuttable presumption of incompetence, the infant must demonstrate sufficient intelligence and capacity to justify reception of his testimony (People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638), and have "some conception" of the obligations of an oath and the consequences of giving false testimony (People v. Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 359 N.E.2d 358). In light of the trial court's unique opportunity to participate in the inquiry of the witness, and to observe the witness's maturity and demeanor, the determination of whether the witness is competent to be sworn lies primarily with the trial court, and should not be disturbed unless clearly erroneous (People v. Parks, at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358; People v. Nisoff, supra, at 566, 369 N.Y.S.2d 686, 330 N.E.2d 638; see also, Wheeler v. United States, 159 U.S. 523, 524-525, 16 S.Ct. 93, 40 L.Ed. 244). In making this determination, the court should consider "the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as his duty to tell the former" (Wheeler v. United States, supra, at 524, 16 S.Ct. 93).

Prior to opening statements, the court examined the complainant outside the presence of the jury to determine if he could give sworn testimony. In response to the court's preliminary questions, the complainant told the court his name (spelling his last name), stated that he was seven years old and said that his birthday was April 13th. He further stated that he was in the second grade and gave his teacher's name. He identified the room he was in as a "courtroom" and the Trial Justice as a "Judge". The court asked the complainant why he was in court, and complainant responded "to talk about something". When the court asked "[w]hat is important when you talk to me about those things?" complainant responded "To tell the truth". The court then instructed him to tell a lie, and complainant responded "Like if I said your coat is green and it is not." Then, pointing to a court officer, the court asked whether it was the truth or a lie that the man was an "astronaut", and the complainant responded "a lie." The court asked whether he was "sure", explaining that although the man definitely didn't look like an astronaut, "sometimes it is tricky about truth and lies ... sometimes you don't know, right?" The complainant responded affirmatively.

The court's examination continued. The following questions and answers were cited by the court as a basis for its ruling:

COURT: What happens if ... somebody asked you a question, right, like I did about the [astronaut], and you don't know the answer, what do you have to do?

WITNESS: I don't know, say the truth.

COURT: You have to tell me that you don't know. Can you do that?

WITNESS: Um-hum.

COURT: Are you sure? What happens if you tell a lie?

WITNESS: Then that means that you lie ...

COURT: What happens? What is going to happen if you tell something that is not true?

WITNESS: I don't know.

COURT: Is it a good thing to tell a lie or a good thing to tell the truth?

WITNESS: It is a good thing to tell the truth.

The court then asked the attorneys for each side whether they had any further questions, and both declined. The court announced its ruling that it would not permit the complainant to be sworn, but would, pursuant to CPL 60.20(2), allow him to give unsworn testimony. The court ruled that the complainant did not sufficiently understand the nature of an oath or the consequences of giving false testimony, as evidenced in part by the fact that "the family is not a churchgoing family so there is not a moral underpinning from some religious basis." The court also stated its concern about the complainant's ability to say that he did not know something, if, in fact, he did not.

Based on our careful review of the voir dire examination of the complainant, we conclude that the court's competence determination constituted an improvident exercise of discretion. The record clearly shows that the complainant possessed sufficient intelligence and capacity to be sworn as a witness (People v. Nisoff, supra ). He demonstrated his familiarity with his own personal circumstances and the purpose of his visit to the courtroom. Further, he expressed a keen understanding of the distinction between telling the truth and lying, and that telling the truth was a "good thing" (see, People v. Young, 225 A.D.2d 339, 638 N.Y.S.2d 630, lv. denied 88 N.Y.2d 971, 647 N.Y.S.2d 725, 670 N.E.2d 1357; People v. Shavers, 205 A.D.2d 395, 613 N.Y.S.2d 393, lv. denied 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236; see also, People v. Torres, --- A.D.2d ----, 676 N.Y.S.2d 508). Indeed, complainant's statement that it was "important" to tell the truth when he was "talking" in court reflected an appreciation and recognition of the moral obligation to testify truthfully.

The court's ruling that the witness did not appreciate the nature of an oath or the consequences of testifying falsely is not supported by the voir dire record. The witness was never asked about an oath, or even whether he could keep a "promise" to tell the truth. Rather, some of the court's questions were confusing. Other questions were open-ended, such as "What happens if you tell a lie?" This might elicit a variety of responses from a group of adults, let alone a seven-year old child. While it appears that the court was trying to determine whether the child understood the concept of punishment, "the law does not require that children define abstract concepts with the sophistication of an adult" (People v. Mercado, 157 A.D.2d 457, 549 N.Y.S.2d 383, lv. denied 75 N.Y.2d 922, 555 N.Y.S.2d 40, 554 N.E.2d 77; see also, People v. Cintron 214 A.D.2d 349, 625 N.Y.S.2d 148, lv. denied 86 N.Y.2d 733, 631 N.Y.S.2d 614, 655 N.E.2d 711). Given the child's demonstrated level of understanding, we have no doubt that more specific and concrete inquiries would have yielded an express recognition of the obligation to tell the truth, and the consequences of not doing so. However, the court declined the prosecutor's request to reopen the inquiry.

Were we to agree that the complainant was not competent to be sworn, we would nevertheless reverse on the ground that the People produced sufficient independent evidence corroborating the complainant's unsworn testimony. ¹ Under CPL 60.20(3), a defendant may not be convicted of an offense solely upon the unsworn testimony of a complaining witness. Rather, the unsworn witness's testimony must be corroborated by "evidence...