People v. Delbeu

KINGS COUNTY
Criminal Practice

New York Law Journal

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Judge John Wilson

Delbeu was charged with assault, endangering the welfare of a child and harassment. She sought a hearing on whether prosecutors properly followed the procedure to decide if the 10-year-old complaining witness was competent to testify under oath. Delbeu asserted the child was incapable of being sworn based on "mental disease or defect," claiming the court must conduct an in camera examination to decide his ability to verify the complaint. Delbeu stated the child suffered from attention deficit disorder and took prescription medication. Prosecutors noted no recording of the voir dire of the child was made upon their examination of him, but noted he was presumed competent. Prosecutors claimed that ADD, standing alone, did not defeat the presumption a child over 9 is swearable and competent to testify. The court agreed, finding Delbeu's self-serving statements of the child's ADD was insufficient to rebut the presumption or show it affected the child's ability to verify the complaint. Thus, it denied Delbeu's motion stating she failed to present any objective evidence to support her allegation that child was incapable of verifying the complaint.

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