Mi-Kell V, Matter of, MI-KELL

• Decision Date: 04 April 1996
• Docket Number: MI-KELL
• Parties: In the Matter of"V", 1 Alleged to be a Juvenile Delinquent. Sullivan County Attorney's Office, Respondent; Mi-Kell "V", Appellant.
• Court: New York Supreme Court — Appellate Division

Page 626

640 N.Y.S.2d 626

226 A.D.2d 810

In the Matter of MI-KELL "V", ¹ Alleged to be

a Juvenile Delinquent.

Sullivan County Attorney's Office, Respondent;

Mi-Kell "V", Appellant.

Supreme Court, Appellate Division,

Third Department.

April 4, 1996.

John Ferrara, Law Guardian, Monticello, for appellant.

Stephen Oppenheim, County Attorney (Scott A. Nuchow, of counsel), Monticello, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, CASEY and PETERS, JJ.

PETERS, Justice.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered February 10, 1995, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 3, to adjudicate respondent a juvenile delinquent.

On October 27, 1994, ² petitioner charged respondent with committing acts which, if committed by an adult, would constitute the crimes of assault in the second degree and assault in the third degree (two counts). The charges stem from an October 14, 1994 incident in which respondent, then 15 years old, allegedly approached a 17-year-old acquaintance while he was playing basketball with friends and, thereafter, repeatedly kicked, punched and bit him. As a result thereof, the victim suffered from serious injuries to his face, eyes and knee which required him to receive hospital treatment, undergo extensive knee surgery and receive intensive physical therapy.

Fact-finding hearings were held on December 13, 1994 and December 16, 1994 where the victim, several eyewitnesses, the victim's orthopedic surgeon and respondent testified. At the conclusion thereof, Family Court adjudicated respondent a juvenile delinquent upon its finding that petitioner had established, beyond a reasonable doubt, that respondent committed the crimes of assault in the second degree and assault in the third degree. After a dispositional hearing held in January 1995, respondent was placed in the Division for Youth for a period of one year.

Upon appeal, respondent contends that Family Court improvidently exercised its discretion by restricting the scope of his cross-examination of two key eyewitnesses and the victim's orthopedic surgeon, and further erred in its refusal to redact those portions of his predispositional report which allegedly violated Family Court Act § 375.1.

Addressing first respondent's contention of trial error, we note that " '[i]t is well settled that the scope of cross-examination rests largely in the sound discretion of the court' " (Matter of Devanand S., 188 A.D.2d 533, 534, 591 N.Y.S.2d 440, quoting People v. Quevas, 178 A.D.2d 441, 442, 576 N.Y.S.2d 814; see, People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). Upon our review of the testimony elicited and the objections sustained, we find no merit to respondent's contention that Family Court improperly limited the scope of counsel's cross-examination of the two eyewitnesses. We further find the court to have properly sustained objections to the questions posed to the victim's orthopedic surgeon since they demanded a speculative response--whether a prior knee injury might have contributed to the knee injury sustained during the incident. While at times counsel failed " 'to specify or clarify the purpose for which the desired cross-examination was sought or the basis on which it was justified' " (Matter of Devanand S., supra, at 534, 591 N.Y.S.2d 440, quoting Matter of Robert S., 52 N.Y.2d 1046, 1048, 438 N.Y.S.2d 509, 420 N.E.2d 390), the record conclusively shows that respondent's counsel was consistently given ample opportunity to present relevant evidence and yet chose to rely solely upon respondent's testimony(People v. Williams, 216 A.D.2d 201, 628 N.Y.S.2d 660, lv. denied 86 N.Y.2d 848, 634 N.Y.S.2d 457, 658 N.E.2d 235).

As to the allegedly prejudicial material contained in the predispositional report, we note that Family Court Act § 351.1(1) requires such report to include "the history of the juvenile" (Family Ct. Act § 351.1[1]. ³ In connection therewith, "[i]t is impermissible for this history to contain references to prior arrests [and court proceedings] that have been terminated in the juvenile's favor--if that information was obtained from records that should have been sealed" (Besharov, 1988 Supp Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 351.1[1], 1996 Pocket Part, at 200; see, Besharov, 1989 Supp Practice Commentaries, McKinney's Cons.Laws of N.Y., Book...