In re Steven C.

• Decision Date: 07 February 2012
• Parties: In the Matter of STEVEN C. (ANONYMOUS), appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00956
93 A.D.3d 91
939 N.Y.S.2d 468

In the Matter of STEVEN C. (ANONYMOUS), appellant.

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

Feb. 7, 2012.

[939 N.Y.S.2d 469]

Appeal by Steven C., in a juvenile delinquency proceeding pursuant to Family Court Act article 3, from (1) a fact-finding order of the Family Court (Fran L. Lubow, J.), dated December 1, 2010, and entered in Queens County, which, after a hearing, found that he committed acts which, if committed by an adult, would have constituted the crime of criminal trespass in the third degree, and (2) an order of disposition of the same court dated February 16, 2011, which, upon the fact-finding order and after a dispositional hearing, adjudged him to be a juvenile delinquent and, inter alia, placed him on probation for a period of 12 months.Larry S. Bachner, Jamaica, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Steven J. McGrath and Susan B. Eisner of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., MARK C. DILLON, SANDRA L. SGROI, ROBERT J. MILLER, JJ.

MILLER, J.

[93 A.D.3d 92] On April 28, 2009, the appellant, Steven C. (hereinafter Steven), was a ninth-grade student attending high school in Queens. On that date, he was arrested by police officers at the conclusion of his lunch hour when he returned to school after getting lunch at a nearby bagel shop. He was handcuffed and placed in a police vehicle along with another student. A third student was also arrested about one half mile from the high school.

[939 N.Y.S.2d 470]

About one month later, the presentment agency filed a petition pursuant to Family Court Act article 3 to have Steven and the other two students who were arrested (hereinafter the two co-respondents) adjudged to be juvenile delinquents. The petition alleged that Steven and the two co-respondents committed acts which, if committed by an adult, would have constituted the crime of criminal trespass in the third degree.

Two supporting documents were annexed to the petition. One was a signed and notarized affidavit from a police officer (hereinafter the attesting officer), attesting that he observed Steven and the two co-respondents jump over a fence that enclosed the [93 A.D.3d 93] backyard of a private residence (hereinafter the private residence). The second document attached to the petition was from the owner of the private residence, which stated that she did not give anyone permission to be in her backyard at the time that Steven and the two co-respondents were allegedly observed by the attesting officer.

After a series of adjournments, testimony at a fact-finding hearing was first taken in October 2009. The fact-finding hearing was held over the course of the next year, finally ending sometime in December 2010. The presentment agency did not call the attesting officer to testify and he did not testify at any time during the fact-finding hearing. Two other police officers testified that they observed Steven and the two co-respondents standing in the backyard of the private residence. The officers testified that after they made eye contact with Steven and the two co-respondents, the youths fled over the fence into another backyard. The officers testified that they each separately pursued and arrested the two co-respondents. Neither of the officers testified to arresting Steven.

Additionally, the two testifying officers unequivocally stated that they were the only police officers present at the scene when Steven and the two co-respondents were in the backyard of the private residence. They both specifically testified that the attesting officer was not present at the scene when they observed the three youths in the backyard of the private residence. The attesting officer processed the three youths after they were arrested.

Steven and one of the other two co-respondents testified on their own behalf. Both stated that they went to a local bagel shop for lunch during their designated lunch hour in a group of about seven students. As they were returning from lunch, they encountered police officers. Fearing a citation for truancy, the students fled. Steven and the testifying co-respondent both insisted that they were never in the backyard of the private residence. Steven testified that he ran to the school and was apprehended by a police officer as he attempted to enter the school.

At the conclusion of the fact-finding hearing, the Family Court concluded that Steven committed acts which, if committed by an adult, would have constituted the crime of criminal trespass in the third degree. An order of disposition of the same court dated February 16, 2011, nearly 22 months after the incident, adjudged him to be a juvenile delinquent and, inter alia, placed him on probation for a period of 12 months. Steven appeals, and [93 A.D.3d 94] we reverse the order of disposition and dismiss the petition in the interest of justice.

“A proceeding to adjudicate a person a juvenile delinquent is originated by the filing of a petition” (Family Ct Act § 310.1[1] ). A petition is not facially sufficient unless, among other things, “non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of

[939 N.Y.S.2d 471]

each crime charged and the respondent's commission thereof” (Family Ct. Act § 311.2[3]; see Matter of Nelson R., 90 N.Y.2d 359, 362, 660 N.Y.S.2d 707, 683 N.E.2d 329; Matter of Detrece H., 78 N.Y.2d 107, 109, 571 N.Y.S.2d 899, 575 N.E.2d 385). “Although not required by the express language of statute, the Court of Appeals has held that the nonhearsay factual allegations must be sworn to satisfy the facial sufficiency requirement of the...