Opinion
October 3, 1988
Appeal from the Family Court, Suffolk County (Berler, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
We find no merit to the appellant's claim that the Family Court lacked subject matter jurisdiction of the proceeding because the People failed to offer testimony or documentation establishing that the appellant was less than 16 years of age when he committed the purported act of sodomy (see, Family Ct Act § 301.2, [8] [ii]).
Generally, subject matter jurisdiction is the court's "power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question" (Hunt v Hunt, 72 N.Y. 217, 229). A court's subject matter jurisdiction is conferred by the constitution or statute, and if the court lacks subject matter jurisdiction, the defect is not curable by waiver, consent, estoppel or laches (see, Nuernberger v State of New York, 41 N.Y.2d 111). Indeed, an "objection to the jurisdiction in such case may be taken at any stage of the action, and the court may, ex mero motu [of its own motion] at any time, when its attention is called to the facts, refuse to proceed further, and dismiss the action" (Robinson v Oceanic Steam Nav. Co., 112 N.Y. 315, 324; see, Marine Midland Bank v Bowker, 89 A.D.2d 194, 195-196, affd 59 N.Y.2d 739). "However, there is a well-settled exception or proviso that this does not apply when the court had jurisdiction of the general subject matter but a contention is made after judgment that the court did not have power to act in the particular case or as to a particular question in the case" (Matter of Rougeron, 17 N.Y.2d 264, 271, cert denied 385 U.S. 899).
We find that, despite the Family Court's limited jurisdiction (see, Pearson v Pearson, 118 Misc.2d 850, affd 108 A.D.2d 402, affd 69 N.Y.2d 919), the petition, which set forth the appellant's age, was sufficient to confer upon the court jurisdiction over the proceeding. At no time has the appellant alleged that he was actually outside the court's jurisdictional age limitation (see, Matter of Donald F., 97 A.D.2d 980; Matter of Anne-Marie P., 131 Misc.2d 959; see also, Besharov, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 302.1 [1988 Pocket Part], at 41-42).
Viewing the evidence in a light most favorable to the presenting agency (see, Matter of David H., 69 N.Y.2d 792, 793; Matter of Gaylord II., 106 A.D.2d 823, 825), we find that the People's evidence was sufficient to prove beyond a reasonable doubt that the appellant committed an act which, if committed by an adult, would constitute the crime of sodomy in the first degree (see, Family Ct Act § 342.2; see also, Matter of Jerry XX., 115 A.D.2d 797, lv denied 68 N.Y.2d 601). The unsworn testimony of the infant victim (see, Family Ct Act § 343.1, [3]) was "corroborated by evidence tending to establish the crime and connecting [the appellant] with its commission" (People v Groff, 71 N.Y.2d 101, 104; cf., Matter of Nicole V., 71 N.Y.2d 112, rearg denied sub nom. Matter of Francis Charles W., 71 N.Y.2d 890).
We have reviewed the appellant's remaining contention and find it to be without merit. Bracken, J.P., Lawrence, Kunzeman and Spatt, JJ., concur.