The issue in this case is whether the now seven year old complainant (hereinafter, "the Child") is competent to verify the Criminal Court Complaint and thereby convert the Complaint to an Information. Both Defendants were charged with Endangering the Welfare of a Child (PL § 260.10(1)), a class A misdemeanor and Attempted Endangering the Welfare of a Child (PL § 110/ 260.10(1)), a class B misdemeanor. The People served a deposition signed by the Child on July 1, 2009, to convert the Complaint into an Information. Defendants now argue that the Child is not swearable as a matter of fact. It is the People's position that, based on the swearability hearing conducted November 10, 2009, this court should find the seven year old witness is capable of testifying under oath and of swearing to the accuracy of the complaint.

CPL § 60.20(2) provides "a witness less than nine years old may not testify under oath

As we discussed in our prior decision, People v. L.G., 18 Misc 3d 243, 844 NYS2d 846 (Crim. Ct. Kings Co. 2007), courts have differed on the means by which swearability is determined under this statute. Some courts have required the trial judge to conduct a hearing to determine whether the witness could verify a complaint. People v. Pierre, 140 Misc 2d 623, 533 NYS2d 170 (Crim. Ct., NY. Co. 1988). Other courts have allowed the prosecutor to conduct a private hearing, and ruled on the witness' swearability based on a recording of this hearing, filed and served with the court. People v. King, 137 Misc 2d 1087, 523 NYS2d 748 (Crim. Ct. NY Co. 1988). A court's discretion to designate its own preferred method of verification is limited only by the statute and by the need to safeguard the Defendant's procedural rights. People v. Philippe, 142 Misc 2d 574, 585, 538 NYS2d 400, 408 (Crim. Ct. Kings Co. 1989) (finding that "the competence presumption (CPL sec. 60.20) is a standard for the exercise of judicial discretion, not a bright-line distinction automatically determining admissibility").

In our two and a half years of presiding over Crimes against Children cases, we have been able to rely on the "swearability recordings"^[FN1] made by the District Attorney, and have never previously ordered a swearability hearing before the Court. However, after reviewing the recording of the hearing in this case conducted by the prosecutor, we felt the need to do so, by order dated September 11, 2009, because of the obvious difficulty that the Child had answering questions.^[FN2] Accordingly, on November 10, 2009, we conducted our own swearability hearing to determine whether the Child complainant herein is capable of swearing to the accuracy of the complaint and testifying under oath, as required by CPL 60.20.^[FN3]

To overcome the rebuttable presumption of incompetence, the infant must have "some [*3]conception" of the obligations of an oath and the consequences of giving false testimony. People v. Cordero, 257 AD2d 372, 684 NYS2d 192 (1st Dept. 1999) quoting People v. Parks, 41 NY2d 36, 46, 359 NE2d 358, 390 NYS2d 848 (1976). The tests as to the infant's ability to understand the nature of an oath are "necessarily individualistic" and are to be determined by

"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." People v. Nisoff, supra citing Wheeler v. United States, 159 U.S. 523, 524-525, 40 L.Ed. 244, 16 S.Ct. 93 (1895). In making this determination, the court should address the following: 1) does the child know the difference between a lie and a truth; 2) does the child know the meaning of an oath; 3) does the child understand what can happen if he or she tells a lie; 4) does the child have the ability to recall and relate prior events. Wheeler, supra , People v. Morales, 80 NY2d 450, 686, 330 NE2d 638, 591 NYS2d (1975) citing Kennedy v. Stincer, 482 U.S.730, 741 fn. 11, 96 L.Ed.2d 631, 107 S.Ct. 2658, 2665 (1987).

"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. Cordero, 257 AD2d 372, 684 NYS2d 192 (1st Dept. 1999) citing People v. Parks, supra , People v. Nisoff, supra and People v. Wheeler, supra ; People v. Dorsey, 265 AD2d 567, 697 NYS2d 305 (2nd Dept. 1999).

Many cases rely at least in part on a belief in God to establish a witness' ability to understand the moral duty to tell the truth. See e.g. People v. Mendoza, 49 AD3d 559, 853 N.Y.S.364 (2nd Dept. 2008), leave to appeal denied, 10 NY3d 937, 892 NE2d 409, 862 NYS2d 343 (2008); People v. Mercado, 157 A.D. 457, 549 NYS2d 383 (1st Dept.), appeal denied, 75 NY2d 922, 554 NE2d 77, 555 NYS2d 40 (1990). We note that such a demonstration is not necessary. See e.g. People v. Brill, 245 AD2d 384, 666 NYS2d 195 (2nd Dept. 1997), People v. Citron, 214 AD2d 349, 625 NYS2d 148 (1st Dept. 1995), In re Paulette C., 34 AD3d 395, 828 NYS2d 3 (1st Dept. 2006), In re Saquan K., 1 AD3d 223, 767 NYS2d 98 (1st Dept. 2003). Cf. People v. Cordero, supra (First Department reversed trial court's ruling that complainant was incompetent, 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.").

Perfunctory, one-word, or non verbal responses to mostly leading questions do not demonstrate that a child witness understands that there is a special moral duty to tell the truth while under oath, even if the child witness can differentiate between the truth and a lie. People v. Maldonado, 199 AD2d 563, 563, 606 NYS2d 258, 259 (2nd Dept. 1993); see also People v. Davis, 304 AD2d 421, 760 NYS2d 12 (1st Dept. 2003); see generally People v. Brill, supra .

In this case, the seven year old witness was asked several background questions during the swearability hearing, as well as several questions directed at what it meant to tell the truth. Some of the questions regarding the witness' background were asked by the prosecutor on direct examination, and others, particularly those relating to the witness' ability to tell the difference between truth and falsehood, were also reviewed in depth by defense counsel on cross examination. At the close of the Child's testimony, we gave both parties the opportunity to [*4]present papers addressing the competency of the Child.^[FN4]

When a child's competency has been called into question, courts have included pertinent parts of the examination of the child witness in decisions. People v. Smith, 104 AD2d 160, 481 NYS2d 879 (2nd Dept. 1984). In this case, we include excerpts from the transcript which we deem particularly relevant to our discussion of the issues. In these excerpts, the witness did not give an unequivocal answer that he understood the difference between truth and lies, or the nature of an oath.

When simple questions were presented to the witness, such as asking the date of his birthday, the Child initially said "July," then changed his answer to "September," and when asked what day in September, he initially said he didn't remember and, when asked again, said "Friday." (Tr. 11:25-12:9).

The witness initially stated that he did not know what the truth was, then stated it was "not to tell a lie." (Tr. 14:3-5). When asked if knew what that meant, to lie, he said no. (Tr. 14:6-7). The prosecutor then followed up by asking the witness whether if she said she had green hair, that would be a truth or lie, and he said that was a lie, and she would go to jail if she said that. (Tr. 14:8-11). The examination continued as follows:

Q.What happens if you tell a lie?

A.You go... You get in big trouble, like she punish me.

Q.What do you mean by she punish you?

A.Put me in my room, and I don't watch tv.

THE COURT: I'm repeating it verbatim.

Q.Do you know what it means to make a promise?

A.No.

THE COURT: You are shaking your head.

A.No. [*5]

Q.Do you know what it means to make a pinky swear?

A.Like a secret.

Q.So if I pinky swear I'm going to give you a whole bunch of ice cream, but I don't give you a whole bunch of ice cream, do I keep the pinky swear or break my pinky swear?

A.Break the pinky swear.

Q.Is it a good thing or a bad thing to break a pinky swear?

A.Bad thing.

Q.What happens if you break a pinky swear?

A.I don't know. I go to my room and do nothing.

Q.Why would you go to your room and do nothing?

A.Because I'm being bad.

Tr. 14:16-15:14.

When asked if he knew what a judge was, the witness said, "Yes. It's a man." (Tr. 15:16). When asked what the judge does, the witness replied, "I don't know." (Tr. 15:19). When asked for the second time what the judge's job is, the witness replied, "He wears a coat, like a black coat." (Tr. 15:24). When asked for the third time what a judge does, the witness again said, "I don't know." (Tr. 16:1). After being asked about a specific judge the witness stated he had seen on television, the prosecutor asked what that judge's job is, and the witness replied, "To work." (Tr. 16: 13). When asked what he sees her doing, the witness replied, "Saying stuff." (Tr. 16:15). Finally, the prosecutor asked, if you promise to tell the judge the truth, what do you have to do, to which the witness replied, "Tell the truth." (Tr. 16:18).

Q.What happens if you tell a lie to a judge?

A.You get in trouble.

Q.What?

A.Like you go to jail because you get into trouble.

Tr. 16:19-23.

As these excerpts illustrate, it was only by repeatedly prodding the witness' responses and [*6]asking follow up questions that the prosecutor sometimes obtained the answers she sought.^[FN5] "However, merely getting the correct answer does not establish that the child understood that he had a moral duty to tell the truth and/or that he understood the nature of an oath." People v. Carrington, 18 Misc 3d 1147(A), 859 NYS2d 897 (Westchester Co. Ct. 2008). See generally People v. Shellman, 9/4/90 N.Y.L.J. 24, (col. 5) (Crim. Ct. NY Co.)(where prosecutor attempted to rehabilitate child witness by eliciting that he thought he would get a spanking if he told a lie, the child's response did not reflect a true appreciation of the significance of an oathor the depth or responsibility of a witness while under oath).

On direct examination as a whole, the Child did not give an unequivocal answer that

convinced the court that the witness understood the difference between truth and lies, or the nature of an oath. We are particularly concerned with the Child's lack of understanding of the meaning of "promise" coupled with the Child's definition of "pinky swear" as being "like a secret." (Tr. 15:1-2). This is antithetical to the obligation of a witness, as encompassed by our traditional oath to tell the truth, the whole truth, and nothing but the truth. Simply put, a witness under oath is not permitted to keep secrets, but must be fully forthcoming in testimony.^[FN6]

Moreover, on cross examination, the witness' answers were inconsistent with his chronological age, giving rise to concerns regarding the Child's ability to recall and relate prior events. When asked how much two plus two is, the witness replied "Eight." (Tr. 17:14). Defense counsel's follow up questioning to the witness's earlier statement that he liked to make Barbie dolls occurred as follows:

Q.When was the last time you made a Barbie Doll in school?

A.I painted.

Q.You painted it? Did you do that last week or last year or some other period of time?

A.Tomorrow I did it. [*7]

Q.Tomorrow you did it?

A.Yes.

Q.And does it take you a long time?

A.To do it?

Q.Yes

A.Yes

Q.How long does it take you to do?

A.Like five minutes.

Q.Five minutes? Is that a long time five minutes?

A.Yes.

THE COURT: Get a verbal answer

Q.[Y]ou have to say yes or no. Is five minutes a long time or a short time?

A.Short time.

Q.Okay now, did you speak to [the prosecutor] here more than the amount of time that it takes to make a Barbie doll or less?

A.Less.

Q.You sure about that?

A.Yes.

Tr. 17:20-18:20.^[FN7] [*8]

Defense counsel's follow up questioning to the earlier discussion of "pinky swearing"

went as follows:

Q.[I]f you made a pinky swear with another boy to [get] ice cream, and in order to get the ice cream he says that you have to say that the moon is made out of cheese, would you say that?

A.No.

Q.No? If you wanted to get the ice cream from the other boy and he wanted you to say that you'll swear pinky, would you say I'll swear pinky?

A.No.

Q.What if you really wanted the ice cream, and [the prosecutor] told you to get the ice cream you have to say I'll swear pinky, would you listen to the adult.

A.Yes.

Tr. 20:9-22.

Reviewing the transcript of the hearing, the Court concludes that although the Child witness may have said on the record that he would get in trouble if he lied, he never stated that he would not lie. The Child demonstrated confusion as to his birthday (July or September), as well as with other temporal matters (that he last painted a doll "tomorrow"). And, critically, during defense counsel's cross examination, using the prosecutor's example of "pinky swearing," the witness, after stating that a pinky swear was "like a secret," indicated that he might swear pinky to something that was not true if told to do so by an adult.^[FN8]

Moreover, the Court was able to observe the Child's demeanor while testifying, which included him constantly putting his hand in his mouth despite being asked not to, and repeatedly needing to be reminded to give verbal answers.^[FN9] Taking the witness' inconsistent if not confusing testimony together with his lack of maturity and demeanor inappropriate to his chronological age, we hold that the witness has not clearly demonstrated that he is aware of the difference between truth and falsehood, lacks the ability to relate prior events and does not understand the nature of an oath. People v. McGrady, 45 AD3d 1395, 844 NYS2d 796 (4th Dept. 2007) (court properly refused to allow defendant's five year old sister to testify where there were ambiguities in her statements concerning her understanding of the difference between a truth and a lie). In doing so, [*9]we are following a mandate imposed by the legislature, and interpreted by well settled law discussed in depth, supra . Accordingly, as CPL § 60.20(2) requires, we are constrained to hold this witness incapable of swearing to the allegations in the complaint. People v. Davis, 304 AD2d 421, 660 NYS2d 12 (1st Dept. 2003) (while child knew the difference between truth and a lie, court found that child lacked an understanding of the nature and consequences of an oath). Accord People v. Maldonado, supra , People v. Mudd, 184 AD2d 388, 585 NYS2d 364 (1st Dept. 1992), People v. Smith, 104 AD2d 160, 481 NYS2d 879, 881 (2nd Dept. 1984), People v. Pullman, 234 AD2d 955, 652 NYS2d 433 (4th Dept. 1996), People v. Carrington, supra . Cf. People v. Brill, supra ("[child witness] knew the difference between the truth and a lie, knew that she would be punished if she did not tell the truth, and stated that she would tell the truth in court.").

While we are constrained to hold the witness incompetent to swear to the allegations in the instant complaint, in view of the allegations in the complaint, the People may be able to

supersede in accordance with the requirements set forth in CPL § 100.40. See e.g. People v. Groff, 71 NY2d 101, 109-110, 518 NE2d 908, 912-13, 524 NYS2d 13, 18 (1987) (when witness is unsworn, prosecution must present legally sufficient corroborative evidence which tends to establish the crime and that the defendant committed it).^[FN10]

Accordingly, the People are given leave to serve a Superseding Complaint, should they be so advised, within the time constraints of CPL § 30.30.

This constitutes the decision and order of the Court.

Dated:December 17, 2009

Brooklyn, New York

______________________________

MICHAEL GERSTEIN

J.C.C.