Defendant is charged with Assault in the Third Degree (PL Sec. 120.00), Endangering the Welfare of a Child (PL Sec. 260.10), both Class A misdemeanors; Attempted Assault in the Third Degree (PL Sec. 110/120.00), a Class B misdemeanor; and Harassment in the Second Degree (PL Sec. 240.36), a violation.

By motion dated June 16, 2012, Defendant seeks a hearing on the issue of whether the People have properly followed the procedure for determining whether or not the complaining witness is competent to testify under oath pursuant to CPL Sec. 60.20(2).

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated August 1, 2012, as well as the Memorandum of Law attached thereto.

Defendant's motion is denied. In this case, Defendant has failed to present any objective or credible evidence to support her contention that the complainant is incapable of verifying the Criminal Court complaint. The question of whether or not the complainant is competent to testify at trial is referred to the trial court.

STATEMENT OF THE FACTS [*2]

On March 11, 2012, at 694 Crescent Street, Brooklyn, New York, Defendant is alleged to have "punch(ed) the informant about the back and head with a closed fist." which "caused informant to suffer substantial pain to informant's back and head, and a lump to informant's head." See, superceding information dated March 15, 2012.

The superceding information also indicates the complainant has a date of birth that would place the date of incident as having occurred shortly before the child's 10th birthday.

Defendant asserts that under CPL Sec. 60.20(2), the People's child complainant is incapable of being sworn based upon "mental disease or defect," and that the Court must conduct an in camera examination of the child witness to determine the child's ability to verify the Criminal Court Complaint. See, Defendant's motion dated June 16, 2012, p. 3, para 4-6.

Defendant states that the child "suffers from Attention Deficit Disorder for which he takes...a prescription medication, and sees a psychiatrist every week. He is incapable of understanding the nature and language of the complaint and supporting deposition...the nature of an oath, or the penalty he faced for falsely swearing to the accuracy of the complaint and supporting deposition." See, Affidavit of Defendant, sworn to on May 30, 2012, appended to Defendant's motion dated June 16, 2012.

Apparently, no recording of the voir dire of the child complainant was made at the time the People conducted their examination of the complainant. Instead, they rely upon their witness being "ten years old when he signed the supporting deposition...under CPL Sec. 60.20, he is presumed competent." See, People's Memorandum of Law, appended to their Response dated August 2, 2012, p 6.

The People also assert that "Attention deficit-hyperactivity disorder (ADHD), standing alone, does not defeat the presumption that an individual over the age of nine is swearable and competent to testify." See, People's Memorandum of Law, appended to their Response dated August 2, 2012, p 7.

LEGAL ANALYSIS

Under CPL Sec. 60.20(2), "(a) witness less than 9 years old may not testify under oath unless the court is satisfied that he or she understands the nature of the oath" (emphasis added). That statute does provide that a witness older than 9 years cannot testify under oath if "such witness cannot, as a result of mental disease or defect, understand the nature of an oath" (emphasis added).

In either case, CPL Sec. 60.20(2) also states that the witness may only testify under oath if that witness "understands the nature of an oath...appreciates the difference between truth and [*3]falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished."

There are two stages in a criminal prosecution when the issue of the competency of a child witness is properly raised; prior to that witnesses' testimony at trial, and at the time the witness verifies the Criminal Court complaint.

In People v. Richard, 33 Misc 3d 855, 860, 929 NYS2d 723 (Crim Ct, Kings Cty, 2011) this Court accepted the "time-honored and practical procedure" outlined in People v. Soler, 144 Misc 2d 524, 525, 544 NYS2d 287 (Crim Ct, NY Cty, 1989) for the determination of whether or not a child witness, less than 9 years old, is competent to verify a Criminal Court complaint; that is, "the examination of the child may be done, in conjunction with any of the out of court methods enumerated in Section 100.30(1)(b) through (e) by an Assistant District Attorney, provided that the voir dire is recorded and made available to the court for review as to the propriety of the prosecutor's assessment of witness competence." 144 Misc 2d at 527. See, also, People v. King, 137 Misc 2d 1087, 523 NYS2d 748 (Crim Ct, NY Cty, 1988).

As we stated in Richard,

For many years, courts have accepted the procedure described in Soler since "(t)his method satisfies due process and sufficiently protects Defendant's rights because the Court, and not the prosecutor, determine whether the Witness is able to swear to the Complaint." See, People v. L.G., 18 Misc 3d 243, 246, 844 NYS2d 846 (Crim Ct, Kings Cty, 2007) (Citations omitted.). See, also, People v. Phillipe, 142 Misc 2d 574, 587, 538 NYS2d 400 (Crim Ct, Kings Cty, 1989) ("verification by a minor of any age may be effectuated by any of the methods permitted by CPL Sec. 100.30...the child need not swear before the court. Neither must the court conduct a voir dire to determine the child's understanding"); People v. Jane T., 13 Misc 3d 1243(A), 831 NYS2d 361 (City Ct, New Rochelle, 2006) ("that the prosecutor should make this initial determination (of whether a minor has the capacity to understand an oath) is not only consistent with applicable statutory and case law, but is both practical and comports with the traditional role of the Court and prosecutor respectively.")

33 Misc 3d at 860.

This Court continues to maintain its acceptance of this time-honored and practical procedure for a witness who is less than 9 years old. In the instant case, however, the child was older than 9 at the time he signed the supporting deposition. Under these circumstances, it is not required of the People that their conversation with complainant prior to his signing the corroborating affidavit be recorded. See, People v. Peppard, 27 AD3d 1143, 811 NYS2d 253 (4th Dept, 2006), lv app den, 7 NY3d 793, 821 NYS2d 823 (2006).

Defendant asserts that in this case, a voir dire was necessary, even though the complainant is older than 9 years, since the child "suffers from Attention Deficit Disorder for which he takes... a prescription medication, and sees a psychiatrist every week. He is incapable [*4]of understanding the nature and language of the complaint and supporting deposition...the nature of an oath, or the penalty he faced for falsely swearing to the accuracy of the complaint and supporting deposition." See, Affidavit of Defendant, sworn to on May 30, 2012, appended to Defendant's motion dated June 16, 2012.

Under CPL Sec. 60.20(1), "any person may be a witness in a criminal proceeding." The Practice Commentary for this section states that "Subdivision 1 sets forth the modern well established general presumption of competence for all witnesses. Thus, the opposing party has the burden of proving incompetence." See, Preiser, Peter, Practice Commentary, CPL Sec. 60.20, McKinney's Book 11A, 2003, p. 8. Defendant herein is the party opposing the presumption of competence.^[FN1]

The only evidence offered by Defendant in support of her assertion of the complainant's incompetence to understand the oath is the unsupported, self-serving statements of the Defendant herself. Defendant asserts that the witness has a condition for which that witness takes medication, and for which the witness is treated by a psychiatrist. Yet, Defendant does not include any assessment or diagnosis of the witness by any medical or mental health professional, or even a copy of the witnesses' prescription.^[FN2]

There is no evidence presented by Defendant to establish that ADHD affects the witnesses' ability to verify the complaint, or in general, understand the oath. Thus, in the absence of this vital evidence, Defendant's motion must be denied.

Any further motion regarding this issue is directed to the trial court, "who is required to conduct a preliminary examination of the prospective witness" for competency prior to that witness being administered the oath at trial. See, Preiser, Peter, Practice Commentary, CPL Sec. 60.20, McKinney's Book 11A, 2003, p. 9.

All other arguments advanced by Defendant has been reviewed and rejected by this court as being without merit. [*5]

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkJanuary 4, 2013

_______________________________Hon. John H. Wilson, JCC