Opinion
2015-03-25
In the Matter of JUSTIN G. (Anonymous), respondent. Presentment Agency, appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Marta Ross of counsel), for appellant. Carol Kahn, New York, N.Y., for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Marta Ross of counsel), for appellant. Carol Kahn, New York, N.Y., for respondent.
Appeal from an order of the Family Court, Kings County (Terrence J. McElrath, J.), dated April 24, 2014. The order dismissed the juvenile delinquency petition with prejudice.
ORDERED that the order is affirmed, without costs or disbursements.
The respondent's contention that the appeal must be dismissed is without merit. The presentment agency is appealing from an order dismissing the petition prior to the commencement of the fact-finding hearing ( see Family Ct. Act § 365.1[2][a]; Matter of Courtney C., 114 A.D.3d 938, 981 N.Y.S.2d 149).
The presentment agency concedes that its original voluntary disclosure form, which was directed at both the respondent and another juvenile, gave notice only of the identification procedure that the presentment agency intended to present at the fact-finding hearing with respect to the other juvenile, and not of the identification procedure the presentment agency intended to present at the fact-finding hearing with respect to the respondent. Accordingly, the Family Court properly determined that the presentment agency's failure to comply with Family Court Act § 330.2(2) required preclusion of the identification evidence with respect to the respondent, without regard to whether the respondent was prejudiced by the lack of notice ( see Family Ct. Act § 330.2[2]; Matter of Courtney C., 114 A.D.3d 938, 981 N.Y.S.2d 149; Matter of Kendell F., 30 A.D.3d 601, 817 N.Y.S.2d 371; cf. CPL 710.30 [1] [b]; People v. Lopez, 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501).
Since the presentment agency would not be able to prove its case without the identification testimony, the Supreme Court properly dismissed the juvenile delinquency petition. BALKIN, J.P., HALL, ROMAN and COHEN, JJ., concur.