Samuel E.L., Matter of
| Decision Date | 01 March 1985 |
| Citation | 487 N.Y.S.2d 236,109 A.D.2d 1092 |
| Parties | In the Matter of SAMUEL E.L. |
| Court | New York Supreme Court — Appellate Division |
Rose H. Sconiers by Christopher Jones, Buffalo, for appellant.
Eugene Pigott, Buffalo, for respondent.
Before HANCOCK, J.P., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.
On appeal from an order finding him to be a juvenile delinquent based on his alleged participation in an attempted robbery, respondent argues that Family Court improperly admitted into evidence testimony by a Division For Youth counselor (whom respondent had been seeing in connection with a prior Person in Need of Supervision [PINS] adjudication) of an inculpatory statement made to him by respondent. Contrary to the view expressed by the dissent, we find enough in the record, absent the counselor's testimony, to sustain the order. Indeed, Family Court found that the testimony by the victim of the robbery was alone sufficient to establish beyond a reasonable doubt that respondent engaged in acts which, if committed by an adult, would constitute attempted robbery first degree.
The victim testified that he was working in a news store when respondent entered with another boy and asked for cigarettes. The other boy then pulled out a knife and said, "This is a robbery." Respondent stood next to him "smiling". When the victim turned and grabbed a club, respondent ran out of the store, followed closely by the other boy. When asked whether respondent might have run out earlier, when he heard his companion announce the robbery, the victim stated: "He was standing side by side * * * [with the other boy and] didn't run until I reached for the club." Accordingly, we need not reach the question of the admissibility of the statement.
All concur, except Callahan and Doerr, JJ., who dissent and vote to reverse and dismiss the petition, in the following Memorandum:
Without the admission given by respondent to the youth counselor, there is insufficient evidence to support the adjudication. Respondent, a 15-year-old youth, was charged with an act which, if committed by an adult, would constitute the crime of attempted robbery. At the time of this incident, respondent was in the custody of the New York State Division for Youth (DFY) pursuant to a Family Court Person in Need of Supervision (PINS) adjudication. At the hearing the DFY counselor testified, over objection, that ...
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