Victor G., Matter of

Decision Date02 August 1994
Citation616 N.Y.S.2d 447,162 Misc.2d 151
PartiesIn the Matter of VICTOR G., A Person Alleged to be a Juvenile Delinquent, Respondent.
CourtNew York Family Court

Paul A. Crotty, Corp. Counsel of the City of New York by Clark Richardson and Michael Auretto, New York City, for the Presentment Agency.

Lenore Gittis, New York City, by Sam Dulberg, Law Guardian.


In this proceeding brought by the Division for Youth for an extension of placement (FCA § 355.3) the respondent moved for an order dismissing the underlying delinquency petition. That petition, which was filed on March 12, 1993, charged the respondent with various counts of drug possession. Subsequently, on May 20, 1993, he admitted to criminal possession of a controlled substance in the seventh degree (PL § 220.03) and on June 25, 1993, he was placed with the Division for Youth for up to twelve months (FCA § 353.3). A notice of appeal was filed but the appeal was not perfected. The respondent now asserts that the delinquency petition was jurisdictionally defective in that the police laboratory report which was attached to the petition and which confirmed the substance tested to be cocaine was not a non-hearsay statement. The report was signed by the chemist who stated therein that "I hereby certify that the foregoing report is a true and full copy of the original report made by me. False statements made herein are punishable as a Class 'A' misdemeanor pursuant to section 210.45 of the Penal Law".

To succeed in his motion the respondent must establish two points, each of which is independent of the other. He must establish that the police laboratory report is a non-admissable hearsay document and then further establish that the recent cases declaring it to be such are to be applied retrospectively to permit vacatur of the orders which had become final.


With respect to the legal sufficiency of the laboratory report the court notes that for many years the New York City Police Department has employed, in drug and firearm cases, a form of laboratory report similar to the one under consideration in this case and thousands of those reports, if not tens of thousands, routinely have been received in grand jury proceedings (CPL § 190.30, subd. 2), have served as the corroboration necessary to convert a misdemeanor complaint to an information (CPL § 170.65, subd. 1) and have satisfied the requirements of Family Court Act, section 311.2, for a sufficient petition. Recently, however, the courts have begun to look more closely at these reports and have discerned three distinct versions of the maker's certification. One version, addressed in Matter of Rodney J., 83 N.Y.2d 503, 611 N.Y.S.2d 485, 633 N.E.2d 1089, (a firearm case) provides that the person signing the report attached to the petition certifies that said report is a true copy of the original report, without any indication of who, if anyone, signed the original report. The Court held that report to be a hearsay document. A second version which has come to the attention of this court is to the effect that the person signing the report attached to the petition certifies that such person actually conducted the test and that the report sets forth the results of the test. This version was discussed in passing in Matter of Enriquillo S., a drug case, (N.Y.L.J. May 20, 1994, at p. 22, col. 6), the Court indicating that report to be non-hearsay (see, also, Matter of Rodney J., supra). A third version, similar to the one employed in this case, provides that the person signing it is the person who made the original report of which the one being certified is a true copy. This version was the one under consideration in Matter of Enriquillo S., supra, where the Court held it to be hearsay. Since that last cited decision was of a court of coordinate jurisdiction this court is not bound by it and is free to be guided by its own analysis. However, after the submission of the motion under consideration counsel for both the presentment agency and the respondent informed the court that this very issue is presently the subject of an appeal to the Appellate Division, First Department, and consequently, no useful purpose would be served by this court's addressing the issue. Therefore, for purposes of what follows herein this court will assume that the Appellate Division will agree with the conclusion reached in Matter of Enriquillo S., supra.


This court's having determined that it will treat the petition as facially insufficient under the Rodney J. line of cases, the next question is whether the rule enunciated in that case should be applied retroactively so as to require vacatur of the prior orders and dismissal of the proceeding. It is "Hornbook law" that a final order or judgment may not be attacked, either directly or collaterally, if the court which made it had both subject matter jurisdiction and jurisdiction over the person (73 N.Y.Jur.2d, Judgments, § 320). Equally clear is that if the court lacked either of them the judgment or order is a nullity and may be attacked by any interested person at any time, Royal Zenith Corp. v. Continental Insurance Co., 63 N.Y.2d 975, 483 N.Y.S.2d 993, 473 N.E.2d 243. Thus, when the Court in Detrece H., 78 N.Y.2d 107, 571 N.Y.S.2d 899, 575 N.E.2d 385, wrote at page 109 that

"A juvenile delinquency petition must contain 'non-hearsay allegations * * * establish[ing] * * * every element of each crime charged and the respondent's commission thereof' (Family Ct Act § 311.2[3]. Any petition which does not contain such factual allegations is both legally insufficient and jurisdictionally defective (see, Family Ct Act § 311.2; Matter of David T., 75 N.Y.2d 927 [555 N.Y.S.2d 675, 554 N.E.2d 1263]",

did the Court of Appeals mean that the defective petition deprived the trial court of subject matter jurisdiction? That question will be addressed herein. Further, if, despite the defective petition, this court had subject matter jurisdiction to make the orders it made should the court now discretionally vacate those orders because the subsequently announced Rodney J. rule served to render the petition defective? That question also will be addressed herein.


It is clear that if this court lacked subject matter jurisdiction the orders which it made must be vacated and the underlying petition dismissed. 1 However, for purposes of determining whether the court had subject matter jurisdiction the word "jurisdiction" is used in the classical sense of the court's competence to determine the particular kind of dispute at issue. Thus, in Lacks v. Lacks, 41 N.Y.2d 71, at page 74, 390 N.Y.S.2d 875, 359 N.E.2d 384 the Court wrote:

"The confusion, if there be confusion, starts with a line of decisions dating back to the last century and continuing into the present in which this court has said with less than perfect meticulousness that 'jurisdiction' of New York courts in matrimonial cases is limited to the powers conferred by statute [citing cases]. Jurisdiction is a word of elastic, diverse, and disparate meanings (see Nuernberger v. State, 41 N.Y.2d 111 [390 N.Y.S.2d 904, 359 N.E.2d 412].

A statement that a court lacks 'jurisdiction' to decide a case may, in reality, mean that elements of a cause of action are absent [citing cases]. Similarly, questions of mootness and standing of parties may be characterized as raising questions of subject matter jurisdiction [citing cases]. But these are not the kind of judicial infirmities to which CPLR 5015 (subd [a], par 4) is addressed. That provision is designed to preserve objections so fundamental to the power of adjudication of a court that they survive even a final judgment or order [citing cases]. 2

In Thrasher v. United States Liab. Ins. Co. (19 N.Y.2d 159, 166 [278 N.Y.S.2d 793, 225 N.E.2d 503] this court, in discussing subject matter jurisdiction, drew a clear distinction between a court's competence to entertain an action and its power to render a judgment on the merits [citing cases]. Absence of competence to entertain an action deprives the court of 'subject matter jurisdiction'; absence of power to reach the merits does not."

This principle is easy to state and easy to understand but often difficult to apply to the facts of a given case. At one end of the spectrum of cases we find those in which the court clearly has no competence to entertain the action, (e.g., those pre-empted by federal law, People v. Trans World Airlines, 147 Misc.2d 697, 556 N.Y.S.2d 803 [airline regulation], Young v. Sheet Metal Workers, Intl., 112 Misc.2d 692, 447 N.Y.S.2d 798 [ERISA] and Harris v. Hirsh, 83 N.Y.2d 734, 613 N.Y.S.2d 842, 636 N.E.2d 1375 [Railway Labor Act] while at the other end we find those in which it simply cannot reach the merits (e.g., failure to allege a condition precedent required by statute, Katz Park Ave. Corp. v. Olden, 158 Misc.2d 541, 601 N.Y.S.2d 757 [Golub notice, 65 N.Y.2d 900, 493 N.Y.S.2d 451, 483 N.E.2d 126, to the tenant]. Between those extremes lies a large group of cases which require a court to analyze the enabling constitution and statutes with almost surgical precision in order to reach the correct conclusion (compare People v. Boston, 75 N.Y.2d 585, 555 N.Y.S.2d 27, 554 N.E.2d 64 with People v. Connor, 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468 N.E.2d 35).

Subject matter jurisdiction has been defined as the

"... power to adjudge concerning the general question involved, and is not dependent on the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question ..."

That hoary statement from Hunt v. Hunt, 72 N.Y. 217, 229, is still quoted (see, Matter of Stanley R., 147 A.D.2d 284 at 288, 542 N.Y.S.2d 734). Competence of the Family Court emanates from the New York Constitution, Article 6, § 13, cl. "b" which gives the Court jurisdiction over proceedings originated there, including juvenile delinquency ones, in the manner...

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