Opinion
March 15, 1971
Appeal from an order of the Family Court, Queens County, dated December 18, 1969, which adjudged appellant a juvenile delinquent and placed him on probation for one year. Order reversed, on the law and the facts, and petition dismissed. Appellant was charged with committing acts which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree, in violation of subdivision 1 of section 130.65 Penal of the Penal Law. The testimony of the complainant, at the adjudicatory hearing, established the commission of such acts. Her testimony was uncorroborated. Despite that charge and proof, the trial court found that appellant had committed acts constituting only sexual abuse in the third degree (Penal Law, § 130.55) and that the complainant's testimony consequently did not require corroboration. In our opinion, this determination was erroneous. In the case of every sex offense, except sexual abuse in the third degree, corroboration of the victim's testimony is required (Penal Law, § 130.15). That requirement applies to juvenile delinquency proceedings in the Family Court ( Matter of Eric R., 34 A.D.2d 402). Where the crime charged and proved is a sex offense requiring corroboration, the need for such corroboration cannot be evaded by a finding, unsupported by the evidence, that only the lesser crime of sexual abuse in the third degree was committed (cf. People v. Doyle, 31 A.D.2d 490, affd. 26 N.Y.2d 752). Munder, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.