In the course of the Grand Jury proceedings the Assistant District Attorney undertook to administer the oath to the underage victim witness. We hold that the Assistant is not among those authorized to swear a witness, and in the absence of an oath properly administered either by the foreman or any other grand juror, the indictment was properly dismissed (CPL 190.25).
However, unlike the motion court, we find that the voir dire of the almost five-year-old witness was, on its face, sufficient to rebut the presumption of incompetency that exists in criminal cases as to the testimony of a child under 12 years old (CPL 60.20; see, Wheeler v United States, 159 U.S. 523, 524-526; cf., People v Ranum, 122 A.D.2d 959; People v Smith, 104 A.D.2d 160). Since the witness clearly understood the import and solemnity of the testimonial oath, the People should be given an opportunity to re-present the case to another Grand Jury.
Concur — Milonas, J.P., Kassal, Ellerin and Wallach, JJ.