Opinion
2011-06-29
In the Matter of a Proceeding Under Article 3 of the Family Court Act TYSHAWN M. A Person Alleged to be a Juvenile Delinquent, Respondent.
Scott W. Westervelt, Esq., Deputy Monroe County Attorney, attorney for petitioner.Gilberto R. Perez, Esq., attorney for respondent.
Scott W. Westervelt, Esq., Deputy Monroe County Attorney, attorney for petitioner.Gilberto R. Perez, Esq., attorney for respondent.
The respondent Tyshawn M. has moved to dismiss a juvenile delinquency petition filed by the presentment agency on May 24, 2011. The petition alleges that the respondent and others committed acts which, if committed by an adult, would constitute the crimes of attempted gang assault in the second degree (Penal Law §§ 110.00, 120.06), attempted assault in the third degree (Penal Law §§ 110.00, 120.00), endangering the welfare of a child (Penal Law § 260.10[1] ), attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10[1] ) and reckless endangerment in the second degree ( [Penal Law § 120.20] ).
The respondent requests dismissal of the petition on the ground it does not contain factual allegations sufficient to provide reasonable cause to believe that the respondent committed the crimes charged and that the petitioner fails to allege non-hearsay facts to support all elements of the crimes and that the respondent committed the crimes (see Family Court Act §§ 311.2[2]; 311.2 [3] ). The presentment
agency filed a memorandum in opposition to the motion.
This decision and order expands the oral decision rendered on June 22, 2011, which granted the motion to dismiss.
Background
The respondent and nine other youths are charged in separate petitions with assaulting a single victim on the morning of May 24, 2011 in the city of Rochester. The deposition attached to the petition from the 14 year old complainant states that she was riding a bus with “a bunch of students from Charlotte High School” and that when the bus stopped “[w]e all got off.” The complainant specifically identifies eight youths who punched and kicked her during the ensuing fight, but does not name the respondent as one of the perpetrators. No other deposition from an eyewitness to the incident is attached to the petition.
The only mention of the respondent is found in the supporting depositions of Jason J., a school administrator at Charlotte High School, and Rochester Police Officer Carlos Alvarado, a School Resource Officer at Charlotte High School.
Mr. Johnson's deposition states that Mr. H. gave him a “students (sic) phone with a video of the fight. Mr. H. is a teacher at Charlotte High School. The name of the student that gave Mr. H. the phone did not wish to be involved and refused their name. I watched the video and downloaded it on to CD for Officer Alvarado. I identified 2 more kids who also kicked the victim. Their names are ... and Tyshawn M.....”
Officer Alvarado's deposition states “2 more suspects were identified through a cell phone video. (See Mr. Johnson deposition for details) The 2 additional respondents are ... and Tyshawn M. ....Both were taken into custody inside the school. These two respondents were observed on video kicking and punching the victim.”
Discussion
In this juvenile delinquency proceeding, the failure of the presentment agency to allege non-hearsay facts in the petition and supporting depositions sufficient to support all elements of the charged crimes and respondent's commission of the crimes constitutes a non-waivable jurisdictional defect requiring dismissal (see Matter of Markim Q., 7 N.Y.3d 405, 822 N.Y.S.2d 746, 855 N.E.2d 1160 [2006]; Matter of Michael M., 3 N.Y.3d 441, 443, 788 N.Y.S.2d 299, 821 N.E.2d 537 [2004] ). In contrast, a defect in a criminal pleading is not jurisdictional and a defendant waives the defect unless it is properly preserved before the trial court (see People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; see also People v. Keizer, 100 N.Y.2d 114, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ).
A juvenile delinquency petition must clearly inform the respondent of the objectionable conduct allegedly committed by the respondent and must contain “facts supporting every element of the crime charged and the respondent's commission thereof....” (Family Court Act § 311.1[3][h] ). Additionally, the petition must contain non-hearsay allegations in the factual part of the petition or of any supporting deposition, which if true establish “every element of each crime charged and the respondent's commission thereof.” (Family Court Act § 311.2[3] ).
The stringent statutory sufficiency requirements contained in the Family Court Act are “designed to ensure substantive due process protection” to the respondent ( Matter of Neftali D., 85 N.Y.2d 631, 634, 628 N.Y.S.2d 1, 651 N.E.2d 869 [1995] ). Moreover, no amendment of the petition is permitted to cure insufficiencies
in the factual allegations (see Family Court Act § 311.5[2][a], [b] ); see also Matter of Michael M., 3 N.Y.3d 441, 449, 788 N.Y.S.2d 299, 821 N.E.2d 537 [2004]. Strict compliance with these requirements is especially important at the pleading stage since a juvenile delinquency proceeding is commenced solely by a petition filed by the presentment agency (see Family Court Act § 310.1) without review by an independent body such as a Grand Jury (see Matter of Edward B., 80 N.Y.2d 458, 464, 591 N.Y.S.2d 962, 606 N.E.2d 1353 [1992] ).
In this case, the petition and supporting depositions fail to allege non-hearsay facts identifying the respondent as a participant in the crime. The complainant's deposition does not mention the respondent at all. The only allegations connecting the respondent to the offenses come from Mr. Johnson's deposition, which states that he was given a phone by a teacher who received the phone from an unknown person who refused to give the teacher his or her name and that Mr. Johnson recognized the respondent on the phone video. Mr. Johnson goes on to describe what he observed the respondent doing in the video.
Not only is Mr. Johnson's statement regarding what Mr. H. told him and what Mr. H. was told by the unidentified person hearsay since these are out of court statements offered for the truth they contain (see Prince, Richardson on Evidence, § 8–101, [Farrell 11th ed] ), Mr. Johnson's identification of the respondent was based upon a viewing of a non-authenticated video obtained from an unknown source. While “a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception” ( People v. Casey, 95 N.Y.2d at 361, 717 N.Y.S.2d 88, 740 N.E.2d 233), no exception to the hearsay rule applies here.
There is no non-hearsay allegation that the incident depicted on the phone was in fact the incident alleged in the petition. The only source for the allegation that the video depicted the fight in question was the statement from the unknown informant, which was relayed by Mr. H. to Mr. Johnson.
Nor is there a deposition from the complainant or any other person who was an eyewitness to the event stating that the video was viewed and that it fairly and accurately depicted the incident.
Mr. Johnson was not an eyewitness and, therefore, would not have been able to verify that the images he viewed were actually of the fight on May 24, 2011. Officer Alvarado's deposition relies on Mr. Johnson's deposition and is, therefore, based on the hearsay statements in Johnson's deposition and Johnson's viewing of the unauthenticated video.
In People v. Allison, 21 Misc.3d 1108(A), 2008 WL 4491495 [N.Y.Dist.Ct.2008] the court dismissed a criminal information that was based on a deposition from non-eyewitness store employee, who observed the defendant on a store video, noting that the defect may have been cured if an affidavit had been attached providing a proper foundation authenticating the video.
The court finds unpersuasive the criminal court decisions cited by the presentment agency in opposition to the respondent's motion, all of which relate to the propriety of identifications made by eyewitnesses using photographs, video tapes or audio recordings either in the context of a pretrial hearing or trial testimony (see e.g. People v. Gee, 286 A.D.2d 62, 730 N.Y.S.2d 810 [4th Dept.2001], affd. 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155 [2002], identification made after viewing store security pictures by eyewitness
not subject to suppression; People v. Wemette, 285 A.D.2d 729, 728 N.Y.S.2d 805 [3rd Dept.2001], proper foundation provided at trial for admission of video taken by complainant; People v. Chisolm, 57 A.D.3d 223, 868 N.Y.S.2d 643 [1st Dept.2008], where court refused to permit expert identification testimony when victim's husband identified the defendant from a videotape and a lineup; People v. Carr, 59 A.D.3d 945, 872 N.Y.S.2d 626 [4th Dept.2009], trial proof sufficient where store surveillance video admitted at trial; People v. Jackson, 71 A.D.3d 1457, 896 N.Y.S.2d 756 [4th Dept.2010], lv. denied 14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010], identification made by college security after viewing a video and photographs provided by college were not subject to suppression). None of the cited cases apply to the pleading stage of a case and all focus on trial or suppression issues.
The presentment agency also cites three lower criminal court decisions in support of its argument that the petition is sufficient. These decision also are distinguishable on their facts and not applicable to this juvenile delinquency proceedings where the pleading requirements are stringent and non-waivable.
In People v. Henderson, 27 Misc.3d 1232(A), 2010 WL 2305486 [Nassau Dist.Ct.2010], cited by the presentment agency, the criminal court found the accusatory instrument sufficient where an officer described the contents of a surveillance video which, unlike the case here, was properly authenticated in a form that would have been admissible at trial. In People v. Patten, 32 Misc.3d 440, 927 N.Y.S.2d 542 [Long Beach City Ct.2010], the criminal information was found to be sufficient where the deponent officers personally viewed the fight at issue and as described a video of the incident. People v. Lambert, 2002 N.Y. Slip Op. 50278(U), 2002 WL 1769931 [N.Y.Crim.Ct.2002], an unpublished opinion of no precedential value, was a case where the court found a criminal information alleging dog fighting sufficient based upon a deposition describing a video tape.
Other lower court decisions have dismissed criminal informations based solely on hearsay descriptions by a deponent of observations of a video (see People v. Allison, 21 Misc.3d 1108(A), 2008 WL 4491495 [N.Y.Dist.Ct.2008] ) where the criminal information was based upon hearsay deposition of a store employee who had watched a store video, but had no personal knowledge of incident; People v. Schell, 18 Misc.3d 972, 849 N.Y.S.2d 882 [NY City Crim. Ct., Richmond County 2008] where the accusatory instrument was based on deponent's description of a traffic stop depicted on a video.
For all of these reasons, the court finds that the petition and the attached factual depositions fail to comply with the stringent non-waivable requirements of Family Court Act § 311.2 and the petition must, therefore, be dismissed as jurisdictionally defective. As a result, the court need not address the respondent's remaining arguments.
The foregoing constitutes the Decision and Order of the Court.