Tioga Cnty. Attorney v. Alexander CC. (In re Alexander CC.)

CourtNew York Supreme Court Appellate Division
Citation191 A.D.3d 1113,142 N.Y.S.3d 223
Docket Number529672
Parties In the MATTER OF ALEXANDER CC., Alleged to be a Juvenile Delinquent. Tioga County Attorney, Respondent; v. Alexander CC., Appellant.
Decision Date18 February 2021

191 A.D.3d 1113
142 N.Y.S.3d 223

In the MATTER OF ALEXANDER CC., Alleged to be a Juvenile Delinquent.

Tioga County Attorney, Respondent;
v.
Alexander CC., Appellant.

529672

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 7, 2021
Decided and Entered: February 18, 2021


142 N.Y.S.3d 225

Donna Chin, New York City, for appellant.

Peter DeWind, County Attorney, Owego, respondent pro se.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from an order of the Family Court of Tioga County (Keene, J.), entered June 21, 2019, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.

In February 2019, petitioner commenced this proceeding seeking to adjudicate respondent (born in 2003) a juvenile delinquent based upon three incidents that allegedly occurred "in or about the [s]ummer of 2018" at the home that respondent shared with, among others, his stepbrother (hereinafter the victim [born in 2011]), when he allegedly engaged in oral and anal sexual conduct with the victim, who was then seven years old. Following a fact-finding hearing, at which the victim provided sworn testimony, Family Court determined that respondent had committed

142 N.Y.S.3d 226

acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree and sexual abuse in the first degree. Respondent appeals.1

Initially, respondent contends that the juvenile delinquency petition is facially insufficient inasmuch as it failed to set forth a sufficient time frame for when the alleged conduct purportedly occurred such that he was deprived of his ability to prepare a defense. Although not raised before Family Court, the filing of a facially insufficient juvenile delinquency petition is a nonwaivable jurisdictional defect that may be raised for the first time on appeal (see Matter of Neftali, D., 85 N.Y.2d 631, 636, 628 N.Y.S.2d 1, 651 N.E.2d 869 [1995] ; Matter of Jonathan YY., 134 A.D.3d 1344, 1345, 22 N.Y.S.3d 614 [2015] ). The review of such a petition "requires application of a stringent test to assure that there is a valid and documented basis for subjecting the juvenile to prosecution" (Matter of Lionel O., 288 A.D.2d 705, 705–706, 732 N.Y.S.2d 720 [2001] [internal quotation marks and citation omitted]). To be facially sufficient, "[a] juvenile delinquency petition must contain non-hearsay allegations establishing every element of each crime charged and the respondent's commission thereof" ( Matter of Jonathan YY., 134 A.D.3d at 1345, 22 N.Y.S.3d 614 [internal quotation marks, ellipses, brackets and citations omitted]; see Family Ct Act § 311.2[3] ). Family Ct Act § 311.1(3)(g) further requires that such a petition contain "a statement in each count that the crime charged therein was committed on, or on or about, a designated date, or during a designated period of time."

Here, the subject petition alleged that, "in or about the [s]ummer of 2018 ... respondent did wrongfully, willfully, and knowingly engage in oral sexual conduct or anal sexual conduct with another person less than [11] years of age ... by placing his penis in contact with the victim's mouth and anus" and did so "for the purpose of gratifying his sexual desire." The petition was supported by statements from the victim and the victim's mother. The allegations in the victim's statement demonstrate that, on two separate occasions in the victim's bedroom, respondent had placed his penis into the victim's mouth until he ejaculated and, on a separate occasion, had placed his penis into the victim's anus. The victim recalled in his statement that these incidents had occurred after school, in the daylight when it was still warm outside. The statement of the victim's mother, meanwhile, recounted an incident in July or August 2018 when another one of her children had made a similar allegation with respect to respondent and she further recalled approximately six occasions during the summer of 2018 when respondent and the victim had been alone in the victim's bedroom. We find that...

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2 cases
  • Ulster Cnty. Dep't of Soc. Servs. v. Stephen BB. (In re Lily BB.)
    • United States
    • New York Supreme Court Appellate Division
    • February 18, 2021
    ...i.e., to treat her eczema – was "plausible and credible." This finding, however, lacks a sound and substantial basis in the record (see 142 N.Y.S.3d 223 Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247, 1247, 924 N.Y.S.2d 793 [2011] ). The child's babysitter testified that, when she bathed th......
  • In re Tashawn MM.
    • United States
    • New York Supreme Court Appellate Division
    • July 6, 2023
    ...and... is reviewable for the first time upon appeal" (Matter of Michael M., 3 N.Y.3d 441, 443 [2004]; see Matter of Alexander CC., 191 A.D.3d 1113, 1114 [3d Dept 2021]; Matter of Jonathan YY., 134 A.D.3d 1344, 1345 [3d Dept 2015]). Ordinarily, "[t]o be facially sufficient, a juvenile delinq......

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