Matter of Michael M.

• Decision Date: 23 November 2004
• Citation: 788 N.Y.S.2d 299,821 N.E.2d 537,3 N.Y.3d 441
• Parties: In the Matter of MICHAEL M., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Court of Appeals Court of Appeals

3 N.Y.3d 441

821 N.E.2d 537

788 N.Y.S.2d 299

In the Matter of MICHAEL M., a Person Alleged to be a Juvenile Delinquent, Appellant.

Court of Appeals of the State of New York.

Argued October 20, 2004.

Decided November 23, 2004.

Legal Aid Society, Juvenile Rights Division, New York City (Susan Clement and Monica Drinane of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg and Larry A. Sonnenshein of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK and ROSENBLATT concur with Judge READ; Judge R.S. SMITH dissents and votes to affirm in a separate opinion in which Judge GRAFFEO concurs.

OPINION OF THE COURT

READ, J.

This appeal calls upon us to decide whether the jurisdictional requirements for filing in Family Court are met when an order of removal and the accompanying pleadings and proceedings contain only hearsay allegations; and, if they are not met, whether this deficiency is waivable. For the reasons that follow, we conclude that such a removal is jurisdictionally defective. Further, the defect is nonwaivable and thus is reviewable for the first time upon appeal.

I.

This case originated with the filing of a felony complaint on April 3, 2002 in Criminal Court, Bronx County. The complaint charged appellant Michael M., who was 14 years old at the time, with participating in a group assault on a 13-year-old boy to steal his bicycle. In the resulting melee, the 13 year old suffered a broken leg. The felony complaint was signed by a police officer and was based on his interview of the victim. In other words, the complaint contained only hearsay.

After Michael M. was arraigned, he was interviewed by the New York City Criminal Justice Agency, which recommended juvenile offender treatment. Accordingly, at a calendar call on May 15, 2002, the prosecutor asked Criminal Court to remove the case to Family Court "pursuant to CPL 180.75 [and] 210.43,"¹ and handed up a form removal order for the judge to sign.² The prosecutor cited three factors to support her oral application: that Michael M. was not the "sole participant" in the attack; that removal would assure that the victim, who was of "tender age," would not be "subjected to needless trauma"; and that removal would not negatively affect the criminal justice system (see CPL 180.75 [6] [b]). The judge asked if there were "[a]ny objections," and Michael M.'s attorney replied "No." The judge did not place on the record the reasons causing him to exercise his discretion to order removal (cf. CPL 180.75 [6] [a], [c]; see also Matter of Raymond G., 93 NY2d 531, 538 [1999]

). He immediately signed the order, which directed Michael M. to appear in Family Court a week later, on May 22, 2002.

At his initial Family Court appearance, Michael M. was served with the felony complaint, the removal order and the transcript of the Criminal Court proceeding. On November 14, 2002, Family Court found that Michael M. had committed acts which, if committed by an adult, would constitute the felonies of attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree (two counts), attempted grand larceny in the fourth degree and attempted criminal possession of stolen property in the fifth degree. By order of disposition dated November 22, 2002, Family Court placed him on probation for 24 months.

Michael M. challenged Family Court's jurisdiction in this matter for the first time on appeal, arguing that the removal order and its accompanying papers were facially insufficient because they contained only hearsay allegations. Citing to Matter of Desmond J. (93 NY2d 949 [1999]), the Appellate Division rejected Michael M.'s claim, stating that "[o]n this record, jurisdiction was sufficiently established" (309 AD2d 631 [1st Dept 2003]). We now reverse.

II.

A juvenile delinquency proceeding "is originated [in Family Court] by the filing of a petition" (Family Ct Act § 310.1 [1]). Family Court Act § 311.1 specifies the delinquency petition's contents. As relevant on this appeal, Family Court Act § 311.1 (7) provides that a removal order from a criminal court to Family Court and all associated "pleadings and proceedings" (other than those not yet transcribed) "shall be deemed to be a petition filed pursuant to subdivision one of section 310.1 containing all of the allegations required by this section [i.e., Family Ct Act § 311.1] notwithstanding that such allegations may not be set forth in the manner therein prescribed" (emphasis added). Here, the presentment agency takes the position that by virtue of section 311.1 (7)'s express terms, the removal order and whatever other pleadings and proceedings may accompany it in an individual case are deemed to constitute a facially sufficient petition. We disagree.

The need for nonhearsay allegations stems not from Family Court Act § 311.1 ("this section"), but instead from subdivision (3) of a different section — Family Court Act § 311.2. The latter provision mandates that the factual allegations of a petition and/or any supporting depositions must contain "non-hearsay allegations [to] establish, if true, every element of each crime charged and the respondent's commission thereof" (Family Ct Act § 311.2 [3]; see also Family Ct Act § 315.1 [1] [a]; [2]). Section 311.1 (7) exempts a removal order from compliance with the requirements of section 311.1; it does not excuse compliance with section 311.2 and its nonhearsay requirements. Accordingly, we conclude that removals must be supported by nonhearsay factual allegations to establish every element of the crimes charged and the juvenile's commission of these crimes.

Other provisions in the Family Court Act support our reading of Family Court Act § 311.1 (7). In 1978, the Legislature amended former Family Court Act § 731 to add the removal provision as subdivision (3) (see L 1978, ch 481, § 48), which provided in relevant part as follows:

"When an order of removal . . . is filed with [Family Court] such order and the pleadings and proceedings transferred with it shall be and shall be deemed to be a petition filed pursuant to subdivision one of this section containing all of the allegations therein required notwithstanding that such allegations may not be set forth in the manner therein prescribed" (former Family Ct Act § 731 [3] [emphasis added]).

Subdivision (1) of former Family Court Act § 731, in turn, required the filing of a petition to originate a juvenile delinquency proceeding (comparable to Family Ct Act § 310.1 [1]). In addition, subdivision (1) required the petition to allege that the juvenile had committed an act that, if done by an adult, would constitute a crime and to specify the act as well as the time and place of its commission (former Family Ct Act § 731 [1] [a], restated in Family Ct Act § 311.1 [2], [3] [d], [e], [f], [g]); that the juvenile was under 16 years old at the time of the alleged act's commission (former Family Ct Act § 731 [1] [b], restated in Family Ct Act § 311.1 [3] [c]); and that the juvenile required supervision, treatment or confinement (former Family Ct Act § 731 [1] [c], restated in Family Ct Act § 311.1 [3] [j]).

Thus, the removal provision enacted by the Legislature in 1978 as former Family Court Act § 731 (3) did not, by its express terms, exempt a removal from compliance with any of the former Act's requirements except those in section 731 (1), which are broadly comparable to Family Court Act § 311.1's requirements from which a removal pursuant to section 311.1 (7) is exempt. Underscoring this point, the Legislature expressly stated that other provisions of the former Family Court Act were inapplicable to a removal order. For example, the Legislature amended former Family Court Act § 733, which provided for various individuals to originate a juvenile delinquency proceeding, to specify that its provisions did "not apply to a proceeding originated by the filing of an order of removal" (L 1978, ch 481, § 49; see also ch 481, § 50 [providing that former Family Ct Act § 734, relating to procedures for initiation of juvenile delinquency proceedings by individuals, did not apply in the removal context; ch 481, § 51 [providing that former Family Ct Act § 734-a, relating to various approvals for the filing of a petition, did not apply in the removal context]).³

Similarly, former Family Court Act § 739, which governed release or detention after the filing of a petition and prior to an order of disposition, was amended by adding language as subdivision (c) to require that "[w]here the petition consists of [a removal order], the petition shall be deemed to be based upon a determination that probable cause exists to believe the respondent is a juvenile delinquent and the respondent shall not be entitled to any further inquiry on the subject of whether probable cause exists" (L 1978, ch 481, § 52). This language was carried over into Family Court Act § 325.1 (5) when the Legislature recodified the Family Court Act's juvenile delinquency provisions in 1982 (L 1982, ch 920, § 1). Interestingly, however, the Legislature provided an exception from section 325.1 (5) for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4) — the bases for Michael M.'s removal — provided that the juvenile was not afforded a probable-cause hearing for a reason other than waiver.⁴ The Legislature also enacted Family Court Act § 311.2 in 1982, but did not similarly provide any express exception from its nonhearsay requirements for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4).

Nor does our decision in Matter of Desmond J., which also involved a felony complaint based solely on hearsay allegations, contradict our reading of Family Court Act § 311.1 (7). At the initial appearance in Family Court in Matter of Desmond J., the presentment agency filed a supporting deposition containing nonhearsay allegations to comply with Family Court Act § 311.2 (3). The juvenile ...