In re Neftali D.
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IN THE MATTER OF NEFTALI D. (ANONYMOUS),
APPELLANT.
85 N.Y.2d 631, 651 N.E.2d 913, 869 N.Y.S.2d 1 (1995).
2
No. 84
[1995
NY Int. 098]
Decided
This opinion is uncorrected and subject to revision before
publication in the
George E. Reed, Jr., for Appellant.
Peter A. Carbone, for Respondent
presentment agency.
CIPARICK, J.:
The issue
presented in this juvenile delinquency proceeding is whether a certified, but
unverified, police report satisfies the jurisdictional dictates of Family Court
Act § 311.2. We conclude that the petition is legally insufficient, mandating a
reversal.
A juvenile
delinquency petition was filed against appellant charging that on February 6,
1993 he committed acts, which if committed by an adult, would constitute the
crimes of assault in the second degree (Penal Law § 120.05[3]), assault in the
third degree (Penal Law § 120.00[1]) and resisting arrest (Penal Law § 205.30).
The police report annexed to the petition relates that the juvenile verbally assaulted
two police officers as they were exiting the building in which they had just
responded to a report of a burglary. Although the officers proceeded past the
juvenile, he continued to taunt them, prompting the officers to order him to
cease such behavior. The juvenile responded by challenging the officers to a
fight, flailing his arms at them. A scuffle ensued, resulting in the juvenile's
arrest. Both officers were treated for injuries sustained while attempting to
subdue the juvenile.
After
entering his denials at the initial appearance on
Family Court
denied the motion, finding the supporting deposition, i.e. the police report,
sufficient and in compliance with CPL 100.30(1)(b).
The court indicated it looked to CPL 100.30(1)(b) for
interpretive assistance in construing Family Court Act §§ 311.2 and 311.3, even
though no specific direction is contained in these provisions (see Family Court
Act § 303.1[1]). Family Court further held that the incorrect date recited on
the face of the petition was an insignificant, non- prejudicial error capable
of correction by amendment, which it directed to reflect the proper date, and
that the juvenile waived any objection to this defect by failing to timely file
his motion.
Subsequent to
a fact-finding hearing at which the two police officers testified, Family Court
adjudged the juvenile a delinquent and placed him with the Division for Youth
for 18 months. Family Court stated that the juvenile exhibited "an
escalating pattern of dangerous delinquent behavior, marked by multiple arrests
for a variety of crimes which, if committed by an adult, would constitute these
crimes together with a [drug] problem."
In a
unanimous decision, the Appellate Division affirmed, ruling that the petition
was sufficient on its face and properly supported by the nonhearsay
allegations in the police report, signed by the officer-victim and certified by
a police sergeant (see Matter of Neftali D, 204 AD2d 319). The
Appellate Division noted that at the time the motion to dismiss was made, the
fact-finding stage of the proceeding had commenced and "there was no
longer a pressing need for an accusatory instrument that complied with Family
Court Act § 311.2(3) (see Matter of Edward B.,
80 NY2d 458,
464; Matter of David T., 75 NY2d 927,
929)" (id.). We granted leave, and now reverse the order of the Appellate
Division and dismiss the petition. Compliance with the dictates of Family Court
Act § 311.2(3) is a formal prerequisite to a juvenile delinquency proceeding in
the first instance and a condition precedent to a fact-finding hearing.
Therefore, the unsworn police report attached to the
instant petition was legally insufficient, depriving the court of a
jurisdictional predicate to entertain the proceeding.
The
sufficiency requirements set forth in Family Court Act § 311.2 are not simply
technical pleading requirements but are designed to ensure substantive due
process protection to an alleged juvenile delinquent, who can be arrested and
deprived of liberty based on the petition. Like a criminal information, the
juvenile delinquency petition is the sole instrument for the commencement,
prosecution and adjudication of the juvenile delinquency proceeding and,
therefore, must comport with the statutory jurisdictional requisites of the
Family Court Act (see Matter
of Jahron S., 79 NY2d 632,
636; Matter of Detrece H., 78 NY2d 107,
110).
Family Court
Act § 311.2 measures the sufficiency of a petition by the sum of its two parts:
the verified petition (see Family Court Act § 311.1; Matter of Jahron S., supra, 79 NY2d, at 636; CPLR §§ 3020 and
3021) and any supporting depositions filed with the petition. We now determine
that the nonhearsay allegations contained in the
supporting depositions of the petition must be sworn to satisfy the facial
sufficiency requirements of the Family Court Act.
Family Court Act
§ 303.1(2) contemplates reference to judicial interpretations of relevant
provisions of the criminal procedure law where "such interpretations may
assist the court in interpreting similar provisions of [the family court
act]." In Matter of Jahron S., we
construed the sufficiency of a petition that did not contain a laboratory
report identifying the controlled substance the juvenile was charged with
criminally possessing, with reference to the parallel CPL provision even though
there was no specific statutory direction to do so (see Matter of Jahron S., 79 NY2d at 638, supra; see also Family Court
Act § 303.1[1]). There, we determined that CPL 100.20, which defines and
identifies the form and content of supporting depositions filed with a criminal
information, simplified information, misdemeanor complaint or felony complaint,
was instructive for evaluating the substance of a Family Court petition because
the supporting deposition serves the same function--supplementing the factual
allegations of the petition-- in both proceedings (see Matter of Jahron S., supra, 79 NY2d, at 638).
In this case,
we find Criminal Procedure Law section 100.30(1)(b)
instructive with regard to verification of supporting depositions accompanying
juvenile delinquency petitions. In pertinent part, CPL § 100.30(1) provides
that a supporting deposition may properly be verified when it is "sworn
before a desk officer in charge at a police station or police headquarters or
any of his superior officers" (see also CPL 100.00 et seq. and 100.20
[specifying verification requirements for accusatory instruments]). A
verification attesting to the truth of the contents of a document on penalty of
perjury is of the same effect as a testimonial oath, which at once alerts a
witness to the moral duty to testify truthfully and establishes a legal basis
for a perjury prosecution (see People v Parks, 41 NY2d 36, 45; Matter of Brown v Ristich, 36 NY2d 183,
189). This verification procedure is intended to assure a measure of
reliability regarding the contents of the petition.
A sworn
recital that the factual allegations are accurate is particularly significant
in the context of a delinquency petition not only because it is the sole
accusatory instrument used to prosecute the juvenile but, also because there is
no independent prior review of the evidence by a grand-jury- like body (see Matter of Edward B.,
80 NY2d 458,
464-465; People v Alejandro, 70 NY2d 133,
137-138). In this regard, we have applied a stringent test when construing
challenges to the facial sufficiency of a juvenile delinquency petition to
assure that there is a valid and documented basis for subjecting the juvenile
to prosecution (see Matter
of Rodney J., 83 NY2d 503; Matter
of Edward B., 80
NY2d 458, supra; Matter of Jahron S., 7 NY2d 632,
supra; Matter of Detrece H., 78 NY2d 107,
supra; Matter of David T., 75 NY2d 927).
Here, the
certification signature contained in the police report filed in support of the
petition bears none of the attributes of a duly sworn testament (see Matter
of Rodney J., 83 NY2d, at 507, supra). Indeed, not even the title or
authority of the individual who certified the report is provided next to the
signature, which itself is illegible. In Matter of Rodney J., we
determined that the delinquency petition and its supporting documents were
jurisdictionally defective because they failed to contain a nonhearsay
allegation of one of the elements of the crime charged against the juvenile.
There, the certified but unverified ballistics report annexed to the
delinquency petition was insufficient because the person who certified it did
not attest to any personal knowledge which would have established the nonhearsay nature of the document. Similarly, the facial
insufficiency of the instant police report, which was intended to comprise the nonhearsay allegations of a supporting deposition that is
required to be verified, renders the petition jurisdictionally defective,
subjecting it to dismissal (see, Matter of Detrece
H., 78 NY2d, at 109-110, supra; Matter of David T., 75 NY2d, at 929,
supra).
That this
proceeding was about to enter the fact- finding stage at the time appellant
moved to dismiss is not an impediment to dismissal since a viable, facially
sufficient petition is a predicate to the court's jurisdiction. The failure to
comply with the statutory sufficiency requirements is a nonwaivable
jurisdictional defect that can be raised at any stage of the proceeding.
We have
considered appellant's remaining contention and find it devoid of merit.
Accordingly,
the order of the Appellate Division should be reversed, without costs,
appellant's motion to dismiss granted and the petition dismissed.
* * * * * * *
* * * * * * * * * *
Order
reversed, without costs, appellant's motion to dismiss granted and petition
dismissed. Opinion by Judge Ciparick.
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.
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