M., In re

• Decision Date: 12 May 1970
• Parties: In the Matter of Arthur M., A Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 399

310 N.Y.S.2d 399

34 A.D.2d 761

In the Matter of Arthur M., A Person Alleged to be a

Juvenile Delinquent, Appellant.

Supreme Court, Appellate Division, First Department.

May 12, 1970.

R. K. Uviller, New York City, for appellant.

Before EAGER, J.P., and McGIVERN, NUNEZ, STEUER and TILZER, JJ.

PER CURIAM.

Order of the Family Court entered September 4, 1969 adjudging appellant to be a juvenile delinquent reversed, on the law, without costs and without disbursements, and the petition dismissed. The order of adjudication was based upon a finding that appellant had committed acts which if done by an adult would have constituted the crimes of burglary and arson.

Since the sole evidence connecting appellant with the acts of arson and burglary consisted of testimony by an accomplice to those acts, the delinquency adjudication, as the Corporation Counsel forth-rightly concedes, may not be sustained. To deny to appellant the safeguard of section 399 of the Code of Criminal Procedure that accomplice testimony be supported by independent proof linking the accused to the crime, would be to deprive the juvenile of fair treatment and equal protection of the law. The testimony of an accomplice does not become more reliable because the accused is a juvenile rather than an adult. In fact, the necessity for supporting evidence is even more essential in view of the nature of the juvenile proceedings. Tried informally without a jury, the finding that appellant committed arson will prejudice him for a lifetime. Upon a hearing on a charge of juvenile delinquency there must be a full compliance with due process requirements. (People v. Fitzgerald, 244 N.Y. 307, 155 N.E. 584; Matter of Steven B., 30 A.D.2d 442, 293 N.Y.S.2d 946; In re Lang, 60 Misc.2d 155, 301 N.Y.S.2d 136 (Family Court Ulster County, June 9, 1969.).)

The Corporation Counsel, while acknowledging that the absence of corroborative evidence would seem to require that the petition be dismissed, argues that otherwise the evidence established the acts charged 'by a preponderance of the evidence.' This assertion was made prior to counsel having seen the opinion of the United States Supreme Court In the Matter of Samuel Winship (397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, March 31, 1970, reversing 24 N.Y.2d 196, 299 N.Y.S.2d 414, 247 N.E.2d 253). The Supreme Court holds in Winship that section 744(b) of the Family Court Act of this State ^* is unconstitutional and that a finding of guilt in a delinquency proceeding must rest upon proof beyond a reasonable doubt. 'In sum,' Justice Brennan for the Court declared, 'the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault--notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, 'that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process * * * the case against him must be proved beyond a reasonable doubt."

All concur except STEUER, J., who concurs in the result in the following memorandum:

I am constrained to concur solely on the ground that the findings of the Family Court judge were made on the basis of...