In re Nelson R. — 90 N.Y.2d 359

Majority

p. 359

[683 NE2d 329, 660 NYS2d 707]

In the Matter of Nelson R., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.

Argued June 5, 1997;

decided July 1, 1997

p. 360

POINTS OF COUNSEL

Mitch Kessler, Kingston, for appellant.

The petition was jurisdictionally defective and Family Court therefore should have dismissed it, where the 11-year-old complainant’s purported supporting deposition was the sole source of the nonhearsay allegations establishing appellant’s commission of the alleged delinquent act, and the petition lacked any proof that the complainant was swearable and thus capable of executing a verified supporting deposition. (Matter of Jahron S., 79 NY2d 632 ; Matter of Neftali D., 85 NY2d 631 ; Matter of Edward B., 80 NY2d 458 ; People v Phillipe, 142 Misc 2d 574 ; People v Page, 150 Misc 2d 627 ; People v Cortez, 140 Misc 2d 267 ; People v Claxton, 160 Misc 2d 550 ; People v Soler, 144 Misc 2d 524 ; People v King, 137 Misc 2d 1087 ; People v Munnelly, 158 Misc 2d 340 .)

Paul A. Crotty, Corporation Counsel of New York City (George Gutwirth and Francis F. Caputo of counsel), for respondent.

The petition satisfied the requirements of the Family Court Act and was not jurisdictionally defective because supported by a deposition of a person under 12 years of age. (Matter of Gregory J., 209 AD2d 191 , 85 NY2d 807 ; Matter of Omar O., 208 AD2d 429 ; Matter of Edward B., 177 AD2d 319 , 80 NY2d 458 ; Matter of Errol C., 210 AD2d 403 ; Matter of Henry M., 151 Misc 2d 219 , 194 AD2d 606 , 82 NY2d 657 , 83 NY2d 963 ; Matter of Bruce T., 190 AD2d 805 ; Matter of David C., 143 Misc 2d 203 ; Matter of Robert T., 123 Misc 2d 550 ; Matter of Parks, 78 Misc 2d 281 ; Matter of Jahron S., 79 NY2d 632 .)

Judith Waksberg, New York City, and Jane M. Spinak for the Juvenile Rights Division of the Legal Aid Society, amicus curiae.

The petition was legally insufficient on its face where the only nonhearsay allegations supporting the charges were those of an 11-year-old child whose age was stated in the peti

p. 361

tion and there had been no judicial determination as to her capability of understanding the nature of an oath. (Matter of Naftali D., 85 NY2d 631 ; Matter of Rodney J., 83 NY2d 503 ; Matter of Jahron S., 79 NY2d 632 ; Matter of Detrece H., 78 NY2d 107 ; People v Groff, 71 NY2d 101 ; Matter of Jeffrey T., 138 AD2d 384 ; Matter of Steven B., 30 AD2d 442 ; Matter of Henry H., 194 AD2d 606 , 82 NY2d 657 , 83 NY2d 963 ; Matter of Errol C., 210 AD2d 403 ; Matter of Gregory J., 209 AD2d 191 , 85 NY2d 807 .)

OPINION OF THE COURT

This appeal raises the issue of whether a juvenile delinquency petition is facially defective when the only supporting deposition containing factual allegations against the respondent has been sworn to by a child under 12 years without a prior judicial determination of the child’s competency as a witness. We affirm the order of the Appellate Division because we conclude that any alleged defect caused by the age of the person swearing to the supporting deposition is latent, not facial, and therefore dismissal of the petition for facial insufficiency is not required.

Respondent was adjudicated a juvenile delinquent after Family Court found that he, while acting in concert with another, had committed acts which, if committed by an adult, would have constituted the crimes of sodomy in the first degree, sexual abuse in the first and second degrees, unlawful imprisonment in the first and second degrees, sexual misconduct and menacing. The petition alleged that respondent and another person had restrained the complainant, subjected her to sexual contact and forcibly engaged in deviate sexual intercourse. The petition was accompanied by a supporting deposition sworn to by the complainant in front of a notary public. The deposition also contained the statement that "false statements made herein are punishable as a class A misdemeanor or an act of juvenile delinquency” (cf., CPL 100.30 [1] [d], [e]). The complainant’s mother also submitted a sworn statement stating complainant’s birth date.

Prior to the fact-finding hearing, respondent made a motion seeking dismissal of the petition on the ground that the supporting deposition had been "sworn to” by a child under 12 years of age. Respondent contended that the complainant’s age rendered her presumptively incapable of submitting a state

p. 362

ment under oath absent a prior judicial determination of competency. Since the petition did not contain any statements indicating that a court had found complainant to be a competent witness, respondent argued that the supporting deposition did not conform with the requirements of the Family Court Act and should be dismissed.

Family Court denied respondent’s motion to dismiss the petition and the matter proceeded to a fact-finding hearing. At the outset of the hearing, and prior to the taking of any testimony, a voir dire of the 11-year-old complaining witness was conducted. During the voir dire, the complainant stated that telling the truth was good and that telling a lie was bad. She also stated that telling a lie would be bad even if she didn’t get caught. The witness further stated that telling the truth to a Judge was more important than telling the truth to other people and that telling a lie in court would affect everyone "lied on.” After the conclusion of the voir dire, Family Court determined that the complainant should be sworn stating, "[s]he clearly knows the difference between telling the truth and telling a lie and I found that she appreciates the importance of telling the truth in court.”

The complainant was the only witness to appear on behalf of the presentment agency at the fact-finding hearing. At the conclusion of the hearing, Family Court adjudicated respondent a juvenile delinquent. Family Court thereafter placed respondent with the Division of Youth for a period of three years with a minimum of 12 months in a secure facility and a minimum of 12 months in a residential facility. This Court granted respondent leave to appeal.

Respondent contends that the petition should have been dismissed for facial insufficiency because it failed expressly to indicate that the 11-year-old complainant had been found by a court to be a competent witness before swearing to the supporting deposition.

A petition is facially sufficient when "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission'thereof” (Family Ct Act § 311.2 [3]). "[N]onhearsay allegations contained in the supporting depositions of the petition must be sworn to satisfy the facial sufficiency requirements of the Family Court Act” (Matter of Neftali D., 85 NY2d 631 , 635).

The failure of a petition to state affirmatively that a witness under 12 years of age has been judicially determined competent

p. 363

to swear to a supporting deposition does not render the petition facially insufficient and therefore does not mandate dismissal (Matter of Edward B., 80 NY2d 458 , 465). Respondent’s focus on the age of the complaining witness here, to the exclusion of all other factors, is misplaced. Although age is a relevant factor in determining the capacity of a person to make a statement under oath, the Family Court Act does not contain any age limitations or requirements for a witness swearing to a supporting deposition. Here, the notary’s signature attested to the fact that the complainant had sworn to the truth of her deposition. Thus, there is no indication on the face of the petition that it was not properly sworn to (cf., Family Ct Act § 343.1 [2]). Since the petition here was facially valid, any defect in the petition relating to the capacity of the complaining witness to swear to the supporting deposition was latent and dismissal at the outset of the proceedings was not required.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.

Order affirmed, without costs.

Cases cited

In re Jahron S. 79 NY2d 632 N.Y. 1992-06-09 p. 360, p. 361
In re Neftali D. 85 NY2d 631 N.Y. 1995-05-02 at 635 p. 360, p. 361, p. 362
In re Edward B. 80 NY2d 458 N.Y. 1992-12-16 at 465 p. 360, p. 363
People v. Phillipe 142 Misc 2d 574 N.Y. Crim. Ct. 1989-02-01 p. 360
People v. Page 150 Misc 2d 627 N.Y. Crim. Ct. 1991-03-20 p. 360
People v. Cortez 140 Misc 2d 267 N.Y. Crim. Ct. 1988-05-24 p. 360
People v. Claxton 160 Misc 2d 550 N.Y. Crim. Ct. 1994-03-09 p. 360
People v. Soler 144 Misc 2d 524 N.Y. Crim. Ct. 1989-06-30 p. 360
People v. King 137 Misc 2d 1087 N.Y. Crim. Ct. 1988-01-04 p. 360
People v. Munnelly 158 Misc 2d 340 Nassau Cty. Dist. Ct. 1993-06-16 p. 360
In re Gregory J. 209 AD2d 191 N.Y. App. Div. 1994-11-03 p. 360, p. 361
In re Edward B. 177 AD2d 319 N.Y. App. Div. 1991-11-12 p. 360
In re Henry M. 151 Misc 2d 219 N.Y. Fam. Ct. 1991-06-14 p. 360
In re Henry M. 194 AD2d 606 N.Y. App. Div. 1993-06-07 p. 360, p. 361
In re Bruce T. 190 AD2d 805 N.Y. App. Div. 1993-02-16 p. 360
In re David C. 143 Misc 2d 203 N.Y. Fam. Ct. 1989-03-16 p. 360
In re Robert T. 123 Misc 2d 550 N.Y. Fam. Ct. 1984-03-23 p. 360
In re Parks 78 Misc 2d 281 N.Y. Fam. Ct. 1974-05-21 p. 360
In re Rodney J. 83 NY2d 503 N.Y. 1994-04-28 p. 361
In re Detrece H. 78 NY2d 107 N.Y. 1991-06-04 p. 361
People v. Groff 71 NY2d 101 N.Y. 1987-12-21 p. 361
In re Jeffery T. 138 AD2d 384 N.Y. App. Div. 1988-03-07 p. 361
In re Steven B. 30 AD2d 442 N.Y. App. Div. 1968-10-10 p. 361