| Matter of Hector V. |
| 2007 NY Slip Op 09517 [45 AD3d 503] |
| November 29, 2007 |
| Appellate Division, First Department |
| In the Matter of Hector V., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Alan Beckoff of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or aboutJanuary 5, 2007, which adjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that he had committed acts, which, if committed by an adult, would constitute thecrimes of sexual abuse in the first degree (two counts), and placed him on probation for a periodof up to 18 months, unanimously modified, on the law, to the extent of vacating the finding as tosexual abuse in the first degree by forcible compulsion and dismissing that count of the petition,and otherwise affirmed, without costs.
Viewing the evidence in the light most favorable to the presentment agency, we find theevidence was legally insufficient to establish that appellant used forcible compulsion to compelthe victim to accede to his acts of sexual abuse (see Penal Law § 130.00 [8]).There was no evidence that appellant overpowered the victim or used any express or impliedthreat of force (compare e.g. People v Yeaden, 156 AD2d 208 [1989], lvdenied 75 NY2d 872 [1990]). However, the evidence supports the court's finding of sexualabuse in the first degree involving a person under the age of 11, and that finding was not againstthe weight of the evidence. There is no basis for disturbing the court's determinations concerningcredibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).
The court properly permitted the six-year-old victim to give sworn testimony, based on hervoir dire responses (see People v Nisoff, 36 NY2d 560, 565-566 [1975]; People vCordero, 257 AD2d 372 [1999], lv denied 93 NY2d 968 [1999]).[*2]
Appellant's hearsay argument is unpreserved and wedecline to review it in the interest of justice. Were we to review this claim, we would reject it.Concur—Tom, J.P., Saxe, Friedman, Williams and Buckley, JJ.