Rodney J., Matter of

• Decision Date: 09 May 1985
• Citation: 108 A.D.2d 307,489 N.Y.S.2d 160
• Parties: In the Matter of RODNEY J., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 160

489 N.Y.S.2d 160

108 A.D.2d 307

In the Matter of RODNEY J., A Person Alleged to be a Juvenile Delinquent, Respondent.

Supreme Court, Appellate Division First Department.

May 9, 1985.

Gillian Sacks, New York City, of counsel (Stephen J. McGrath, New York City, with her on the brief; Frederick A.O. Schwarz, Jr., New York City, attorney) for petitioner, Corporation Counsel of the City of New York.

John F. McGlynn, New York City, of counsel (Lenore Gittis, New York City, attorney) for respondent.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN and BLOOM, JJ.

SULLIVAN, Justice.

On October 27, 1983 the Corporation Counsel of the City of New York, an authorized presentment agency, filed a delinquency petition in Family Court, New York County, against the 15 year-old respondent, Rodney J., alleging, upon information and belief, that, in concert with another, he committed acts which, had he been an adult, would constitute the crimes of robbery in the second degree (Penal Law 160.10), robbery in the third degree (Penal Law 160.05) and grand larceny in the third degree (Penal Law 155.30). Arraigned that same day, respondent pleaded not guilty and was, the following day, paroled to his mother's custody.

Annexed to the petition, in support thereof, was the deposition of the arresting officer, Detective Sabatel of the Transit Authority Police Department, who stated that he took respondent into custody on the complaint of Genara Valdes, who had had a chain snatched from her on October 5, 1983, at about 12 noon, at the Canal Street subway station. In his deposition Detective Sabatel further stated, "Respondent made oral and written statements." Annexed to Detective Sabatel's deposition was respondent's signed handwritten statement, made on October 6, 1983, when he was originally arrested on these charges, in which he admitted snatching a chain from a Puerto Rican lady, approximately 36 years of age, at about 12:30 p.m. on October 5, 1983 on "Canal." Simultaneously with the filing of the petition the Corporation Counsel served and filed a voluntary disclosure form which acknowledged that the only known witness, the victim, Ms. Valdes, who was actually 50 years old, had been unable to identify respondent from a photograph array which included his picture. No other supporting deposition was filed with the petition.

On December 1, 1983 respondent moved for, inter alia, dismissal of the proceeding for legal insufficiency, arguing that since the petition was supported only by Detective Sabetel's hearsay deposition, it failed to meet the requirement of Family Court Act sec. 311.2that every element of the crime charged and the respondent's commission thereof be established by non-hearsay allegations in the factual part of the petition or of any supporting depositions. Specifically, respondent cited the absence of a non-hearsay supporting deposition by the victim. As part of its answering papers filed on December 8, 1983, the Corporation Counsel included the complaining witness's "supporting deposition", which was, in fact, an October 30, 1983 statement of Ms. Valdes countersigned by Detective Sabatel, who had placed his notary public stamp under his signature. ¹ In her statement Ms. Valdes asserted that on October 5, 1983, at about noon-time, at the Canal Street subway station, a black male, whom she described as 17 years of age with a small Afro hair style and wearing a blue jacket with white stripes, forcibly removed her necklace.

The court found the petition deficient because respondent's statement, upon which it was based, did not qualify as a supporting deposition pursuant to the requirements of Family Court Act sec. 311.2. The court further found that until the statement's validity had been tested it could not be used in support of the petition. Finding the failure to file a sufficient non-hearsay corroborating affidavit to be a correctible error of form the court denied the motion to dismiss, without prejudice to renewal should the Corporation Counsel fail to file the required affidavit. The court thereafter granted reargument but adhered to its original determination, reiterating its finding that respondent's unsworn written statement did not qualify as a supporting deposition within the meaning of Family Court Act sec. 311.2. Accordingly, it granted respondent's request to strike his statement from the petition, 122 Misc.2d 836, 471 N.Y.S.2d 811.

When the matter appeared on the calendar two weeks later the Corporation Counsel, in accordance with the court's original ruling providing therefor, filed copies, in both Spanish and English, of Ms. Valdes's statement, sworn to on February 11, 1984, which was, in essence, identical to her earlier statement. Although conceding that Ms. Valdes had failed to name respondent as the person who committed the acts alleged in the petition because she was unable to identify the perpetrator, the assistant corporation counsel urged that the statement, when taken together with respondent's admission, was sufficient to support the petition. Under constraint of the prior order striking respondent's statement the court dismissed the petition as defective since the factual part of the petition and the supporting depositions failed to connect respondent to the crimes charged. We reverse and reinstate the petition.

Family Court Act sec. 311.2, which established a standard to measure the legal sufficiency of a petition in a juvenile delinquency proceeding, requires that the petition and any supporting depositions, taken together, establish the crimes charged and provide reasonable cause to believe that the respondent committed them. Every element of the crimes charged and the respondent's commission thereof must be established by non-hearsay allegations. Since the allegations contained in the petition and any supporting depositions represent the only formal statement of charges against an accused juvenile, the requirement of Family Court Act sec. 311.2 that the petition be based on competent legal evidence should be strictly observed. (See People v. James, 4 N.Y.2d 482, 486, 176 N.Y.S.2d 323, 151 N.E.2d 877.)

Family Court Act sec. 311.2 is substantially identical to CPL 100.40which sets forth the sufficiency requirements of a local criminal court accusatory instrument, and which, prior to the enactment of Family Court Act sec. 311.2, was held to be applicable to delinquency petitions. (See, e.g., Matter of Isaac W., 89 A.D.2d 831, 832, 453 N.Y.S.2d 432.) Moreover, although the CPL does not apply to delinquency proceedings unless specifically prescribed by the Family Court Act, judicial interpretations of appropriate provisions of the CPL may be considered "to the extent that such interpretations may assist the court in interpreting similar provisions of (Family Court Act sec. 303.1.)

Hearsay, as that term is used in the CPL, has been construed to mean only hearsay which is not admissible at trial. (People v. Fields, 74 Misc.2d 109, 344 N.Y.S.2d 413; also People v. Conoscenti, 83 Misc.2d 842, 844, 373 N.Y.S.2d 443.) Unless section 311.2 of the Family Court Act is similarly construed courts, as the court in Fields aptly noted, would be confronted with "the absurd result" that the rules of evidence as applied to an information are more stringent than those applicable to trials and hearings. (74 Misc.2d at 111, 344 N.Y.S.2d 413.) Respondent's statement, which is an express acknowledgement of guilt, is admissible as a confession, unless it was "involuntarily made", that is, coerced or obtained in violation of respondent's rights under the state or federal constitution. (Family Court Act sec. 344.2.) Thus, the deposition of Detective Sabatel, stating on personal knowledge that respondent made oral and written statements and to which respondent's signed written statement--a confession to the crimes charged--was, in fact, attached, as alleged, constituted a non-hearsay supporting deposition. Likewise, the express incorporation of respondent's statement into Detective Sabatel's sworn deposition mutes any argument that the statement, being unsworn, could not qualify as a supporting deposition.

Furthermore, contrary to Family Court's view, the sufficiency of Detective Sabatel's deposition is unaffected by the possibility that respondent's confession might ultimately be suppressed. Courts have consistently sustained indictments founded upon evidence subsequently held to be inadmissible. For example, in People v. Oakley, 28 N.Y.2d 309, 321 N.Y.S.2d 596, 270 N.E.2d 318, the court held that an indictment is not rendered infirm because the identification testimony before the grand jury was based on an inadmissible suggestive identification of the defendant. The court reasoned that if after trial no reliable identification or other evidence of guilt were presented, the defendant would be acquitted anyway, by direction of a verdict, if necessary; if, however, there were sufficient evidence it would not matter how the trial proof compared with the evidence before the grand jury. "It would suffice that the indictment had performed its office and had been obtained on what was at the time prima facie legally competent evidence rendered inadmissible only by subsequent challenge and...