S., In re
| Decision Date | 19 May 1972 |
| Citation | 333 N.Y.S.2d 466,70 Misc.2d 320 |
| Parties | In the Matter of William S., * A Person Alleged to be a Juvenile Delinquent, Respondent. Family Court, City of New York, Kings County |
| Court | New York City Court |
Relying upon In re Jose G., 68 Misc.2d 1043, 328 N.Y.S.2d 777 (Family Court, N.Y.Co.1972), The Corporation Counsel moved pursuant to F.C.A. § 165, C.P.L.R. § 602(a) and C.P.L. § 200.20(2), (4) for an order which would permit the consolidation of three separate petitions each of which alleges that the respondent, on a separate occasion and upon a separate victim committed an act which if committed by an adult would constitute the crime of sodomy. DP The motion is prompted primarily by Penal Law § 130.15 which enjoins a conviction for the commission or attempted commission of a sex offense (other than sexual abuse in the third degree) solely upon the uncorroborated testimony of the alleged victim. In paragraph '4' of his supporting affidavit, the Corporation Counsel states: 'This motion to consolidate is made for the purpose of establishing a common plan or scheme, identity and corroboration . . .' In paragraph numbered '6' he states: 'In view of the harshness and illogic of the evidentiary rules on corroboration in sex crimes and the criticism leveled at them by many legal authorities and judges, consolidation of these proceedings will not only expedite the hearings and be dispositive of all three proceedings in a single trial, but will best serve the interests of justice and fairness.'
It is difficult to comprehend the logic of paragraph '6' which might be parsed as follows: The rules of corroboration must be satisfied for the conviction of a sex crime; the rules of corroboration are illogical and harsh; therefore, the consolidation of two or more sex crimes would be expeditious and serve the interests of justice and fairness. The syllogism is less than perfect.
It is interesting to note at the outset that the Corporation Counsel relies upon both the C.P.L.R. and the C.P.L. This reference to rules of procedure designed to regulate two disparate areas of law is not unusual in Juvenile Delinquency Proceedings. See, e.g., In re G., Supra; Matter of Ronald G., 68 Misc.2d 80, 326 N.Y.S.2d 483 (F.Ct. Suffolk Co., 1971); Matter of Santos C., 66 Misc.2d 761, 322 N.Y.S.2d 203 (F.Ct.Bx.Co., 1971); Matter of Edgar L., 66 Misc.2d 142, 320 N.Y.S.2d 570 (F.Ct.K.Co., 1971); Matter of Anthony F., 68 Misc.2d 718, 328 N.Y.S.2d 99 (F.Ct.Schen.Co., 1972); Matter of Michael E., 68 Misc.2d 487, 327 N.Y.S.2d 84 (F.Ct.Suffolk Co., 1971). The felt need to refer to both reflects the dilemma which often confronts the Family Court in juvenile matters--is the proceeding Criminal or Civil? The dilemma is attributable to the calculated reluctance to classify such proceedings as being one or the other, in the belief, perhaps, that juveniles might thus enjoy the best of both procedural worlds. So, for example, in McKeiver v. Pennsylvania, 403 U.S. 528, at page 541, 91 S.Ct. 1976, at page 1984, 29 L.Ed.2d 647 the Court observed: 'Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either Again, in In re Winship, 397 U.S. 358, at pages 365, 366, 90 S.Ct. 1068, at page 1073, 25 L.Ed.2d 368: '. . . civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts.' A persuasive case can be made for the proposition that if the myriad auxiliary services which are so desperately needed for the treatment and rehabilitation of juveniles in trouble were made available so that the dream which gave birth to the juvenile courts could be realized, less emphasis would be placed upon labels and that it is precisely because such services are not available that criminal due process safeguards assume such significance.
The problems posed by the hybrid nature of the proceeding are far from academic. One or two illustrations might emphasize the reality of the dilemma. A motion to exclude witnesses from the courtroom may be granted in civil and criminal cases. Richardson on Evidence (Price, 9th ed.) § 472. A party to the action may be present during the trial as a matter of right. Richardson on Evidence (Prince, 9th ed.) § 473. In a criminal prosecution the plaintiff is the People of the State of New York and the victim or complainant may properly be excluded. In a juvenile delinquency proceeding the petitioner is generally the victim or the complaint. May the court properly grant the juvenile's motion to exclude the petitioner from the courtroom as a prospective witness or is the petitioner a party to the action and entitled to be present? In a criminal prosecution the unsworn testimony of an infant may be received although it must be supported by other evidence to sustain a conviction. In a civil action, the unsworn testimony of a child is inadmissible. Richardson on Evidence (Prince, 9th ed.) § 409. Characterizing the juvenile proceeding as being either criminal or civil may be crucial for this purpose. But see, F.C.A. § 152(b). Is a pleading upon information and belief sufficient in a juvenile proceeding? See, Matter of Anonymous, 37 Misc.2d 827, 238 N.Y.S.2d 792 (F.Ct.Nass.Co., 1962); Matter of Walsh, 59 Misc.2d 917, 800 N.Y.S.2d 859 (F.Ct.Dutch.Co., 1969); Matter of Michael E., Supra.
F.C.A. § 165 provides that the provision of the C.P.L.R. shall apply to family court proceedings to the extent that they are appropriate where the method of procedure is not otherwise prescribed. No procedural rules have otherwise been prescribed with respect to this motion by the Family Court Act or by the Administrative Board of the Judicial Conference. Matter of Turner, 56 Misc.2d 454, 289 N.Y.S.2d 4 (F.Ct.Dutch.Co., 1968). Turning to C.P.L.R. § 602 (a) for guidance we find that 'when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.' Causes of action based upon unrelated facts should not only be pleaded separately, but should be tried separately. Garland v. Meorial Hospital, 60 Misc.2d 34, 301 N.Y.S.2d 144 (Sup.Ct., Albany, Co., 1969). The alleged acts of the respondent in the three proceedings are so separate and distinct and so unrelated to each other that consolidation would prejudice a substantial right of the respondent. The motion to consolidate under CPLR § 602(a), addressed as it is to the discretion of the Court, is, in the exercising of that discretion, denied.
If the motion is to be determined by the provisions of C.P.L. § 200.20, it is likewise denied. C.P.L. § 200.20(3) provides:
'In any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rests solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others. . . .'
Richard G. Denzer, commenting upon that action in McKinney's (Cons.Laws of N.Y., Book 11A) Practice Commentary observes: 'Subdivision 3, like the former provision (CCP 279), is attentive to the possibility of prejudice when offenses are joined Solely by reason of identical or similar legal character (e.g., two unrelated burglaries), and provides for severance in appropriate cases.'
In Matter of Turner, 56 Misc.2d 454, 289 N.Y.S.2d 4 (F.Ct.Dutch.Co., 1968) separate proceedings were instituted against the respondent. In one he was charged with the death of his mother by shooting on March 7, 1968 and in the other, with the death of his material grandmother at the same time and by the same means. Both the petitioner and the respondent joined in a ...
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