Matter of Hector V.

Matter of Hector V. 2007 NY Slip Op 09517 [45 AD3d 503] November 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of Hector V., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1] Tamara A. Steckler, The Legal Aid Society, New York City (Susan Clement of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Alan Beckoff of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about January 5, 2007, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed acts, which, if committed by an adult, would constitute the crimes of sexual abuse in the first degree (two counts), and placed him on probation for a period of up to 18 months, unanimously modified, on the law, to the extent of vacating the finding as to sexual 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 the evidence was legally insufficient to establish that appellant used forcible compulsion to compel the 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 implied threat of force (compare e.g. People v Yeaden, 156 AD2d 208 [1989], lv denied 75 NY2d 872 [1990]). However, the evidence supports the court's finding of sexual abuse in the first degree involving a person under the age of 11, and that finding was not against the weight of the evidence. There is no basis for disturbing the court's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).

The court properly permitted the six-year-old victim to give sworn testimony, based on her voir dire responses (see People v Nisoff, 36 NY2d 560, 565-566 [1975]; People v Cordero, 257 AD2d 372 [1999], lv denied 93 NY2d 968 [1999]). [*2]

Appellant's hearsay argument is unpreserved and we decline 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.