In re Deavan W.

• Decision Date: 15 December 2016
• Citation: 145 A.D.3d 569,2016 N.Y. Slip Op. 08469,43 N.Y.S.3d 329
• Parties: In re DEAVAN W., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 569

43 N.Y.S.3d 329

2016 N.Y. Slip Op. 08469

In re DEAVAN W., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Supreme Court, Appellate Division, First Department, New York.

Dec. 15, 2016.

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for respondent.

SWEENY, J.P., RENWICK, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.

Order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about August 10, 2015, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of attempted robbery in the second degree and assault in the second degree, and placed him on probation for a period of 18 months, unanimously reversed, on the law, without costs, appellant's motion to preclude identification testimony granted, and the petition dismissed.

In a voluntary disclosure form, the presentment agency informed appellant that the complainant identified him inside a restaurant. Consistent with this notice, the arresting detective testified at the suppression hearing that he saw appellant and two companions, whom he had been following, enter the restaurant, that the complainant arrived at the scene, and that despite the officer's instruction for the complainant to wait outside, the complainant entered the restaurant shortly after the detective did and there identified appellant. Based on this testimony, the court denied suppression, finding that the identification was a "spontaneous or un-arranged identification." However, when the complainant ultimately testified at the fact-finding hearing, he testified that he never entered the restaurant, but rather that he identified appellant after the detective brought the three boys out of the restaurant and lined them up against a wall.

Although an inconsequential defect in a notice may be excused (see e.g. People v. Perilla, 247 A.D.2d 326, 669 N.Y.S.2d 214 [1st Dept.1998], lv. denied 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968 [1998] [involving analogous CPL provision] ), here the discrepancy between the two accounts of the identification was not inconsequential, but rather reflected that the VDF provided inadequate notice of the evidence the presentment agency intended to present at the fact-finding hearing (see Matter of Courtney C.,...