We find in the record evidence sufficient in law to support the judgment insofar as it convicts the defendant, under the first count of the indictment, of violation of section 1250 of the Penal Law. Insofar as the judgment convicts the defendant under the third count of the indictment, of violating section 483-a of the Penal Law, it should be reversed and the third count dismissed upon the ground that there is no evidence sufficient in law to support the unsworn testimony of the complainant, a child nine years of age, within the requirements of section 392 of the Code of Criminal Procedure.
The judgment should be modified in accordance with the opinion herein, and, as so modified, affirmed.
Loughban, Ch. J., Conway, Desmond, Fuld and Fboessel, JJ., concur; Lewis and Dye, JJ., dissent and vote to affirm.
Judgment accordingly.