Mikoll, J. (dissenting). We respectfully dissent.
County Court improperly denied defendant’s motion to suppress physical evidence. The issuing court failed to interview the nine-year-old child upon whose statements the application for a search warrant was based or anyone else so as to ascertain the child’s understanding of the nature of an oath. The record indicates that Police Officer James Kowulich, who applied for the search warrant, testified at the suppression hearing that the court issuing the warrant did not interview the child affiant or any other person.
" '[U]nder CPL 60.20 (subd 2), a rebuttable presumption exists that an infant less than 12 years old is not competent to be sworn’ and that 'it must * * * be clear that he knows, understands and appreciates the nature of an oath before the trial court may permit the reception of sworn testimony’ ” (.People v Smith, 104 AD2d 160, 163, quoting People v Nisoff, 36 NY2d 560, 565-566). Where an affidavit contributes to the finding of probable cause, it is subject to challenge for its veracity (see, e.g., People v Jacobson, 101 Misc 2d 1069, 1073-1074).
In the face of the rebuttable presumption, the People had the burden of showing that the issuing court exercised its discretion and conducted the required examination of the nine-year-old child concerning her understanding of the nature of an oath or that she possessed sufficient intelligence to justify receipt of her unsworn evidence. The failure to do so here resulted in the issuance of an invalid search warrant (see, People v Kennedy, 47 NY2d 196, 205-206; see also, People v Davis, 44 NY2d 269, 275-276).
Accordingly, the judgment should be reversed, the motion to suppress granted and defendant’s plea of guilty vacated.
Ordered that the judgment is affirmed.