Kevin B., Matter of
| Decision Date | 07 May 1987 |
| Citation | 514 N.Y.S.2d 971,128 A.D.2d 63 |
| Parties | In the Matter of KEVIN B., A Person Alleged to be A Juvenile Delinquent, Respondent-Respondent. In the Matter of TIMOTHY L., A Person Alleged to be A Juvenile Delinquent, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lucy A. Cardwell, of counsel (June A. Witterschein with her on the brief, Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for petitioner-appellant.
Dustin P. Ordway, of counsel (Lenore Gittis, New York City, attorney), for respondents-respondents.
Before MURPHY, P.J., and SULLIVAN, ASCH, MILONAS and WALLACH, JJ.
In each of these two juvenile delinquency proceedings the presentment agency, the Corporation Counsel of the City of New York, appeals from the dismissal of the petition after opening statements, but before any witness was sworn. In each opening statement the Assistant Corporation Counsel indicated that an eyewitness police officer, but not the complainant, would testify to prove the acts charged. In dismissing, Family Court (the same judge in each instance) held that the failure to call the complainant as a witness would be fatal to the presentment agency's case. We find this to be error, since in each case the elements of the alleged offenses, including that of larcenous intent and lack of consent, could be proved beyond a reasonable doubt through the testimony of the eyewitness police officer, without the testimony of the victim. Accordingly, we reverse, reinstate the petitions and remand for further proceedings.
Respondent Kevin B. was charged with having committed acts which, if committed by an adult, would constitute the crimes of criminal mischief in the third degree (Penal Law 145.05), attempted grand larceny in the third degree (Penal Law 110.00, 155.30[1] ) and unauthorized use of a vehicle in the third degree (Penal Law 165.05). After announcing his readiness to proceed with opening statements and a fact-finding hearing, the Assistant Corporation Counsel indicated that he would not present any evidence as to the value of the property involved. He therefore asked the court to consider the lesser included offenses of criminal possession of stolen property in the third degree and attempted petit larceny with respect to the charges of criminal mischief in the third degree and attempted grand larceny in the third degree, respectively. 1 He then described the testimony anticipated from his single witness. The officer, who had patrolled the particular neighborhood for several years and knew it for the frequency of car thefts committed therein, was on patrol around 12:50 on the morning in question, when he noticed two individuals, one of whom he recognized as Kevin B., looking into car windows. The two looked into a BMW, walked on, still looking into cars, and then returned to the BMW. While Kevin B. stood by, apparently as a lookout, the other, an adult, broke into the BMW and tried to remove a radio. Before he could do so, however, the officer arrested the two.
The Assistant Corporation Counsel informed the court that the car owner would not testify, but argued that direct evidence of ownership is not necessary to prove larcenous intent. The law guardian argued that on the basis of such proof the presentment agency's case would fail for two reasons: the car owner is a necessary witness to establish lack of permission to enter the car and to remove its contents; and that without overt action on respondent's part, the officer's testimony could not establish that he acted in concert with the other person. The court considered the law guardian's argument as a motion to dismiss and granted the same, apparently concluding that proof by direct evidence of the car's ownership through the testimony of the complainant would be necessary.
Respondent Timothy L. was charged with having committed acts which, if committed by an adult, would constitute the crimes of petit larceny (Penal Law 155.25) and criminal possession of stolen property in the fifth degree (Penal Law 165.40). In his opening, the Assistant Corporation Counsel stated that the complainant, who operates a store on Fordham Road in The Bronx, was sick and unable to come to court, but that an eyewitness police officer would testify that at the time in question he observed Timothy L. take an umbrella from a stand in the complainant's store.
As the Assistant Corporation Counsel tried to summarize the anticipated testimony, the court interrupted, saying, The Assistant Corporation Counsel argued that he would prove beyond a reasonable doubt each element of the two offenses charged since the officer's testimony describing the incident and the surrounding circumstances would make it clear that Timothy L. did not own the umbrella, did not have permission or authority to take or possess it, and intended to steal it and to benefit himself or a person other than the owner. Direct proof of ownership was unnecessary, he argued, because ownership may be reasonably inferred from the surrounding circumstances. Similarly, he argued, lack of permission could be reasonably inferred from the officer's testimony. The court, sua sponte, dismissed the petition due to the absence of a complaining witness, stating: "There is no complaining witness ... no confrontation here of an accuser."
Initially, both respondents claim that these appeals must be dismissed because the presentment agency is statutorily barred from appealing an order dismissing a delinquency petition after the commencement of a fact-finding hearing. In New York the right to appeal is based solely upon express statutory or constitutional authorization. (Friedman v. State of New York, 24 N.Y.2d 528, 535, 301 N.Y.S.2d 484, 249 N.E.2d 369.) Family Court Act § 365.1[2] limits appeals in delinquency proceedings by a presentment agency to those from:
(a) an order dismissing a petition prior to the commencement of a fact finding hearing; or
(b) an order of disposition, but only upon the ground that such order was invalid as a matter of law; or
(c) an order suppressing evidence entered before the commencement of the fact finding hearing....
Respondents, noting that Family Court Act § 342.1 provides that a fact-finding hearing commences with the opening statements, argue that these appeals are barred by section 365.1[2](a), upon which the Corporation Counsel relies for jurisdiction, since the orders of dismissal were entered in each instance after both parties had delivered opening statements. Thus, they claim, the dismissals came after the commencement of the fact-finding hearing. While statutory provisions defining the right to appeal must be strictly construed (People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784; see, Brownstein v. County of Westchester, 51 A.D.2d 792, 380 N.Y.S.2d 62), we find these orders of dismissal to be appealable as of right. 2
If section 365.1[2] is to be read literally, then the Family Court Act failed to provide for an appeal by the presentment agency from an order of dismissal entered after the commencement of a fact-finding hearing but before a witness is even sworn to testify. As the Practice Commentary to section 365.1 of the Family Court Act makes clear (Sobie, Practice Commentary, Family Court Act § 365.1, McKinney's, Vol. 29A, at 584), however, the presentment agency's right to appeal adverse decisions was limited, not arbitrarily, but rather to avoid conflict with double jeopardy principles, which, see, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, are applicable to juvenile proceedings. Thus, for example, the Legislature, by enacting Family Court § 365.1[2](c), foreclosed dispositional order appeals seeking to increase the severity of a sanction. Such a procedure would, of course, offend double jeopardy precepts. (See, Matter of John P., 74 A.D.2d 403, 427 N.Y.S.2d 447.) In delinquency proceedings an order of disposition, according to Family Court Act § 352.2, follows a dispositional hearing, i.e., it is an order, which, inter alia, conditionally discharges the respondent or places him in a facility upon a previous finding of delinquency.
In the case of an adult, however, jeopardy does not attach in a trial by the court without a jury until a witness is sworn. (CPL § 40.30[1][b].) We are unaware of any reason why a different standard should apply in juvenile proceedings. Thus, the problem of double jeopardy does not arise here, where the court dismissed the delinquency petition after the close of opening statements but before the presentment agency's first witness was sworn. (See, People v. Kurtz, 51 N.Y.2d 380, 385-86, 434 N.Y.S.2d 200, 414 N.E.2d 699 [].) Since the restrictions on a presentment agency's right of appeal contained in Family Court Act § 365.1[2] were intended to eliminate double jeopardy concerns, an appeal taken from an order of dismissal made at the close of opening statements is not prohibited. Thus, we conclude that neither section 365.1[2] nor the double jeopardy clauses of the federal or state constitutions bars this appeal, and thus this court has jurisdiction to review the substantive issue.
The presentment agency has the burden of proving beyond a reasonable doubt each element of the offenses charged. Its proof may consist of direct or circumstantial evidence. Here, as shown by the Assistant Corporation Counsel, the proof in each case was to consist of both direct and circumstantial evidence. In determining whether guilt has been proved beyond a reasonable doubt, New York courts have applied a rigorous standard if the prosecution's case...
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