In re Arnaldo R.

[327] Order of disposition, Family Court, Bronx County (Harold J. Lynch, J.), entered on or about June 21, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crime of sexual abuse in the first degree, and placed him on probation for a period of 15 months, reversed, on the facts, without costs, and the petition dismissed. Virtually the only evidence offered at the fact-finding hearing in support of the allegations of the petition came from the then seven-year-old witness, Jamie R, who testified that the acts alleged occurred in June 2003 as she was watching television in a bedroom of the two-bedroom apartment in which she was residing at the time. Jamie R, along with her parents, her sister Felicity and her brother Jacob, lived in the apartment with the siblings’ godfather, Jose R Jose R. babysat the children on occasions, such as the date of the incident giving rise to this appeal, when the children’s parents were working. Additionally, Jose R.’s mother and appellant (the nephew of Jose R. and the grandson of Jose R.’s mother) resided in the apartment. Jose R.’s mother had been granted custody of appellant when he was an infant. According to Jamie, she was watching a DVD with her sister in the smaller bedroom of Jose R; Jose R., appellant, and Jacob also were present in the apartment. When Felicity left the room, appellant came in, closed the door, sat down on the bed and pulled his zipper down. Thereafter, appellant “did fresh” to her. As Jamie described it, appellant penetrated her vaginally and anally with his penis after threatening to hit her. Although both acts caused her a “lot” of pain, Jamie did not cry out. She stayed and watched the movie after appellant got off her and left the room. Because appellant was in the apartment when her mother came home, she did not tell her mother what had occurred until the next day. Whether Jamie possessed sufficient capacity to understand and appreciate the nature of an oath (CPL 60.20 [2]) is a close question. In any event, her account of appellant’s conduct was at best confusing. Given her inability to account for how the acts of penetration could have occurred despite the articles of clothing she was wearing, it is difficult to understand Family Court’s conclusion that appellant committed an act or acts that would constitute the crime of sexual abuse in the first degree [328] under Penal Law § 130.65. Of course, Family Court undoubtedly took Jamie’s age into account in considering her failure to account for the articles of clothing she was wearing. To the extent the court understandably did so, however, that would heighten our concern about Jamie’s capacity to understand and appreciate the nature of an oath. Moreover, Jamie did not describe any conduct by appellant, other than the alleged acts of penetration, that would support the court’s finding that he committed an act or acts that would constitute first-degree sexual abuse (cf. People v Scarborough, 49 NY2d 364, 373-374 [1980]). Not surprisingly, given both Jamie’s testimony that she did not see any blood and the total absence of any corroboration in the medical records of her account, Family Court dismissed the counts of the petition alleging acts that would constitute the crimes of first-degree rape and sodomy. Regardless of whether the evidence was legally sufficient to support the sexual abuse finding, appellant correctly argues that the medical records undermined the presentment agency’s case (see Matter of Fatima M., 16 AD3d 263, 272 [2005] [absence of physical findings in medical records consistent with sexual abuse raises questions as to the veracity of child’s allegations of penetration and bleeding]). We need not reach the issue of whether the evidence was legally sufficient, since we find that the fact-finding determination is against the weight of the evidence (CPL 470.15 [5]). In addition to these infirmities in the presentment agency’s case, Jose R. testified that he was in the apartment continuously from the time he began playing the DVD for Jamie and Felicity to the time appellant left to play basketball. Although Jose R., as appellant’s uncle, had a motive to falsify, he gave a straightforward account that he knew the bedroom door was open at all times because he could hear the DVD clearly, that he asked appellant to check on Jamie and come right out to assist with Jacob, who was waking up, and that appellant did so and then went out to play basketball for two hours. Although Jose R. acknowledged that he could not see into the bedroom from the kitchen, his account was not contradicted or impeached and none of his exculpatory testimony is either implausible or tendentious. For all these reasons, the fact-finding order is reversed as against the weight of the evidence, the dispositional order is vacated and the petition is dismissed. Concur—Ellerin, Catterson and McGuire, JJ.