Taihem F., In re

• Decision Date: 21 December 1995
• Citation: 635 N.Y.S.2d 613,222 A.D.2d 322
• Parties: In re TAIHEM F., A Person Alleged to be A Juvenile Delinquent, Appellant. Presentment Agency. In re GLEN, M., A Person Alleged to be A Juvenile Delinquent, Appellant. Presentment Agency.
• Court: New York Supreme Court — Appellate Division

Page 613

635 N.Y.S.2d 613

222 A.D.2d 322

In re TAIHEM F. A Person Alleged to be A Juvenile Delinquent, Appellant Presentment Agency In re GLEN, M A Person Alleged to be A Juvenile Delinquent, Appellant. Presentment Agency.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1995.

C. Goldstein, for appellant in Nos. 55603 & 55604.

B.P. Schwartz, for presentment agency in nos. 55603 & 55604.

Before ROSENBERGER, J.P., and ASCH, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order of the Family Court, New York County (Leah Marks, J.), entered on March 8, 1993, which adjudicated respondent Taihem F. a juvenile delinquent upon his plea of guilty to acts which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the fifth degree and placed him on probation for a period of two years is unanimously reversed, on the law, and the petition dismissed, without costs or disbursements.

Order of the Family Court, New York County (Leah Marks, J.), entered on February 26, 1992, which adjudicated respondent Glen M. a juvenile delinquent upon a finding that he had committed acts which, if done by an adult, would constitute the crimes of criminal sale of a controlled substance in the third and fifth degrees and placed him on probation for a period of 18 months is unanimously reversed, on the law, and the petition dismissed, without costs or disbursements.

Respondents-appellants herein assert that the laboratory reports that were annexed to their petitions did not contain sufficient non-hearsay allegations that the substance recovered by the police was cocaine, thereby rendering jurisdictionally defective on their faces the accusatory instruments against them. In both instances, the presentment agency concedes that this is true. Nonetheless, the agency maintains that the holding in Matter of Wesley M., 83 N.Y.2d 898, 613 N.Y.S.2d 853, 636 N.E.2d 1386 and Matter of Rodney J., 83 N.Y.2d 503, 611 N.Y.S.2d 485, 633 N.E.2d 1089 should not be retroactively applied, arguing that these decisions by the Court of Appeals represent a significant departure from prior legal authority so as to constitute a "new rule" (see, People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381).

The Court of Appeals did not create a new rule of law in Matter of Wesley M., supra, and Matter of Rodney J., supra (see People v. Favor, 82 N.Y.2d 254, 262-263, 604 N.Y.S.2d 494, 624 N.E.2d 631). As the court observed in People v. Favor, "a judicial holding overruling established precedent should, in most instances, be considered a 'new' rule" (id. at 263, 604 N.Y.S.2d 494, 624 N.E.2d 631). However:

"[a] judicial decision construing the words of a statute [for the first time] does not constitute the creation of a new legal principle" (Gurnee v. Aetna Life & Cas. Co., [55 N.Y.2d 184] at 192 [448 N.Y.S.2d 145, 433 N.E.2d 128]. Further, retroactivity should not be in question when a court's ruling merely applies previously established principles in a new factual setting or settles a question in a manner that was clearly foreshadowed (see, Gurnee v. Aetna Life & Cas. Co., 55 N.Y.2d 184, 192, [448 N.Y.S.2d 145, 433 N.E.2d 128], supra; see also, Yates v. Aiken, 484 U.S. 211 [108 S.Ct. 534, 98 L.Ed.2d 546]; cf., Gager v. White, [53 N.Y.2d 475, 442 N.Y.S.2d 463, 425 N.E.2d 851] see also, Chevron Oil Co. v. Huson, [404 U.S. 97] at 106 [92 S.Ct. 349, 355, 30 L.Ed.2d 296]. (id. 82 N.Y.2d at 263, 604 N.Y.S.2d 494, 624 N.E.2d 631.)

The decisions by the Court of Appeals in Matter of Wesley M., supra, and Matter of Rodney J., supra, were "clearly foreshadowed" in Matter of David T., 75 N.Y.2d 927, 555 N.Y.S.2d 675, 554 N.E.2d 1263, wherein the decision in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (a criminal court information is jurisdictionally defective when it does not contain non-hearsay allegations establishing each element of the crime charged...