People v. Ranum

• Decision Date: 25 August 1986
• Citation: 506 N.Y.S.2d 105,122 A.D.2d 959
• Parties: The PEOPLE, etc., Respondent, v. Gary RANUM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 105

506 N.Y.S.2d 105

122 A.D.2d 959

The PEOPLE, etc., Respondent, v. Gary RANUM, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 25, 1986.

Marvin Ray Raskin, Bronx (Walter L. Rich, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Gerald J. Murphy and Richard E. Weill, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, WEINSTEIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Owen, J.), rendered May 10, 1985, convicting him of sexual abuse in the first degree (three counts), and endangering the welfare of a child (three counts), after a nonjury trial, and imposing sentence.

Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.

The conviction rests solely upon the testimony of an 11-year-old boy (10 years old at the times of the alleged crimes) who claims to have been sexually abused by the defendant on six separate occasions on three separate days. These incidents allegedly occurred at the school where the defendant was employed as a teacher of learning-disabled students. The defendant, who had earned a doctorate and had 10 years of teaching experience, testified at trial and denied the accusations. A number of the defendant's colleagues testified that the complaining witness was dishonest, disruptive and had a poor reputation for veracity.

The court, in its decision from the bench after trial, stated that it discredited the testimony of the defendant to the extent that it conflicted with that of the complaining witness. The court thereupon found the defendant guilty of three counts of sexual abuse in the first degree as well as three counts of endangering the welfare of a child. For reasons not clear from its decision, however, the court also acquitted the defendant of three other counts of sexual abuse in the first degree. This appeal followed.

We find that the court erred in allowing the complaining witness, as well as another prosecution witness under the age of 12, to give testimony under oath, in that there was an inadequate foundation for permitting such sworn testimony. Witnesses under the age of 12 are presumptively incompetent to testify in criminal cases. CPL 60.20(2), (3) provides as follows:

"2. Every witness more than twelve years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. 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. If the court is not so satisfied, such child or such witness over twelve years old who cannot, as a result of mental disease or defect, 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.

"3. A defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two " (emphasis supplied).

It is improper to allow such a witness to give sworn testimony unless the witness not only has the intelligence to justify the reception of his or her testimony, but also "knows, understands and appreciates the nature of an oath" (People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638). "The witness must, at a minimum, 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 848, quoting from People v. Washor, 196 N.Y. 104, 109, 89 N.E. 441; see also, People v. Smith, 104 A.D.2d 160, 481 N.Y.S.2d 879). The voir dire conducted by the court in this case failed to demonstrate that the two child witnesses understood, or had any conception of, the obligations of an oath.

With regard to the swearing of the complaining witness, whose testimony was crucial to the defendant's conviction, the court never mentioned the word "oath" and did not define the meaning of the word "oath". Indeed, having asked a number of appropriate background questions, the only relevant questions to the infant complainant as to the "truth" were leading questions responded to by perfunctory answers, or by paraphrasing the court's own words.

It is clear that, in the course...