Matter of Maurice F.

[*1] Matter of Maurice F. 2009 NY Slip Op 50421(U) [22 Misc 3d 1134(A)] Decided on February 19, 2009 Family Court, Bronx County Merchan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 19, 2009
Family Court, Bronx County

In the Matter of Maurice F., Javier C., Persons Alleged to be Juvenile Delinquents



D-27589/07



Appearances of counsel: Leah S. Schmelzer, Esq., Assistant Corporation Counsel (presentment agency), Jessica Brown, Esq., 18-b assigned counsel (law guardian for Respondent Maurice F.), Patricia Decola, Esq., 18-b assigned counsel (law guardian for Respondent Javier C.).

Juan M. Merchan, J.

This matter appeared before the Court on December 5, 2008, for continued fact-finding. Prior to the continuation of the fact-finding hearing, Respondent Javier C. indicated that he wanted to enter an admission to Count Four of the petition, charging him with committing an act which, if committed by an adult, would constitute the crime of Grand Larceny in the Fourth Degree, in violation of Penal Law §155.30(5), a Class E felony. Respondent Javier C. was informed of his rights by the Court and started to admit to Count Four, but was unable to complete the admission due to the revelation of a previously undetected error in the petition. Specifically, Count Four, as pled in the petition, failed to include the statutory language, "from the person of another," contained in Penal Law §155.30(5). The Presentment Agency conceded the error and then moved to amend both petitions, as it was discovered that the same omission existed in Respondent Maurice F.'s petition. Both Respondents opposed the oral application. The matter was thereafter adjourned for written motions and decision. On December 19, 2008, the Presentment Agency moved to amend both petitions to incorporate the missing statutory languageand the motion was opposed by both Respondents. On January 9, 2009, Respondent Maurice F. also cross-moved to dismiss Counts Five and Nine of the petition on the grounds that those counts were improperly pled and, thus, legally insufficient. Upon review of the motions, including all papers submitted in support of and opposition thereto, and after due deliberation thereon, this Court hereby grants the Presentment Agency's motion to amend Count Four in each petition, and denies Respondent Maurice F.'s cross-motion to dismiss the counts enumerated [*2]above.

The Court notes at the outset that both petitions as filed on November 27, 2007 specify the correct statutory citation, Penal Law §155.30(5). However, as the Presentment Agency concedes, the definition set forth under Count Four lacks the specific language, "from the person of another." The charge presently reads as follows:

COUNT FOUR - E FELONY

GRAND LARCENY IN THE FOURTH DEGREE, P.L. §155.30(5), committed as follows:

The Respondent, in the County of the Bronx, on or about 10/25/07, stole property.

The Presentment Agency argues that this omission relates to form, rather than substance and, thus, imparts no prejudice to Respondents. Accordingly, the Presentment Agency seeks to amend the petitions, pursuant to Family Court Act ("FCA") §311.5(1), on the ground that the proposed "amendment does not tend to prejudice respondent(s) on the merits." FCA §311.5(1). While Respondents do not dispute the facts that the petitions cite the correct Penal Law section and sub-section, the precise title and language, "Grand Larceny in the Fourth Degree," and the denotation that the crime constitutes an "E Felony," they contend that the error is not merely "as to form." Rather, Respondents argue, the error is a jurisdictional defect which cannot be cured by amendment as it renders the petition legally insufficient under FCA §311.5(2). Respondent Javier C. further argues that the error does indeed prejudice him in that it has impinged upon his ability to adequately prepare for trial.

This Court is cognizant of the serious potential ramifications this amendment to the petitions could have upon Respondents' rights to due process, as the statute "provides for a one-step process in which the petition is the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding." Matter of Detrece H., 78 NY2d 107, 110 (1991). As such, FCA §311.1 sets forth that which must be contained in a juvenile delinquency petition. Under this rubric, the most pertinent of these requirements for the purposes of the instant matter is §311.1(3)(h), which requires:

a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof with sufficient precision to clearly apprise the respondent of the conduct which is the subject of the accusation.

However, FCA §311.2, which provides further guidance as to what constitutes a facially sufficient petition, states that a petition must "substantially conform" to the requirements prescribed in FCA §311.1. FCA §311.2(2) states that "the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the respondent committed the crime or crimes charged," and FCA §311.2(3) provides that "non-hearsay allegations of the factual part of the petition or of any [*3]supporting depositions, establish, if true, every element of each crime charged and respondent's commission thereof." (Emphasis added.)

Indeed, as propounded by the Court of Appeals, "the phrasing of these statutes makes it clear that a juvenile delinquency petition may in actuality consist of two separate parts: the formal petition itself, which must conform to the requirements of Family Court Act §311.1; and any supporting depositions that may be attached to and filed with the formal petition. Thus, where one or more supporting depositions accompany a petition, that petition and the depositions together must satisfy the facial sufficiency requirements of the Family Court Act." Matter of Jahron S., 79 NY2d 632 (1992). Accordingly, Family Courts necessarily scrutinize the formal or accusatory part of delinquency petitions together with the non-hearsay factual allegations set forth in the supporting depositions, in evaluating the facial sufficiency of the petitions. See, e.g., Matter of Jamel E., 33 AD3d 797 (2nd Dept. 2006); Matter of Jonathan F., 290 AD2d 385 (1st Dept. 2002); Matter of Charlene D., 214 AD2d 561 (2nd Dept. 1995); Matter of Eric F., 126 AD2d 39 (1st Dept. 1987).

Where, despite certain errors in the petition, respondents were found to have been furnished with sufficient notice of the crimes charged and the requisite factual allegations, New York courts have consistently upheld the flawed petition. In Matter of Philip M., 179 AD2d 1034 (4th Dept., 1992), where the petition incorrectly cited to a nonexistent subdivision of the Penal Law, the court there held that "the petition sufficiently identified the crime that respondent was accused of committing and contained requisite factual allegations. The petition provided respondent with sufficient notice to enable him to prepare for trial," and the Presentment Agency's motion to amend was granted on appeal. Philip M. at 1035. In Matter of Charlene D., a case involving a clerical error in the petition in that it omitted general information as to the location of the alleged incident, the court held that "[t]he petition was sufficient on its face and was adequately supported by non-hearsay allegations in the form of a supporting deposition of the complainant which set forth every element of each crime charged and the [Respondent's] commission thereof." 214 AD2d 561, 562 (2nd Dept., 1995). In the Matter of Jonathan F., a finding of attempted robbery was affirmed although the "petition erroneously referred to the deadly weapon section...[rather than deadly instrument], the supporting deposition gave sufficient notice of the actual crime charged in that the complainant stated that a dangerous instrument' was used." 290 AD2d 385 (1st Dept. 2002). There, the Appellate Division emphasized, in dicta, the overarching importance of sufficient notice to respondent.

Upon consideration of the totality of the facts and circumstances presented in these cases, the Court finds that the petitions herein come within the scope of FCA §311.5(1). The complainant's supporting deposition, affixed to both petitions, contains non-hearsay factual allegations which establish each element of the crimes charged and includes the specific language "from my person." The Court rejects the argument that the proposed amendment would effectively result in an additional count. Here, the crime has indeed already been charged, to wit, "Grand Larceny in the Fourth Degree," designated as an E Felony and cited correctly as P.L. §155.30(5). Although, as Respondent Maurice F. correctly observes, the accusatory portion of the petition as it presently appears, recites the statutory definition of Petit Larceny, a misdemeanor, rather than Grand Larceny in the Fourth Degree, a felony. Nevertheless, the Court notes that Petit Larceny is a lesser included offense of the felony and is in fact also charged in the petition [*4]as "Count Seven." The Presentment Agency is not seeking to cure a legal insufficiency of the factual allegations, which would be impermissible. Matter of Detrece H., 78 NY2d at 110. Reading the petition, together with the supporting depositions, leaves no room for confusion. C.f. Matter of Anthony Y. 293 AD2d 792 (3rd Dept. 2002) [reversing the trial court's amendment of the petition as it effectively substituted charges which altered the requisite legal elements to establish a prima facie case, without granting respondent a reasonable adjournment to prepare thus prejudicing the respondent.] Respondent Javier C. was no doubt fully aware, as he prepared to make an admission to Count Four, that he was not admitting to Petit Larceny as that charge was contained in Count Seven. No reasonable view of the circumstances would support a contrary finding.

Had the specific section and subsection of the Penal Law been absent, this Court might be persuaded that Respondent lacked sufficient notice to adequately prepare his defensive strategy, but here the specific Penal Law section is correctly cited, in Count Four, together with a supporting deposition which establishes every element of the crime charged therein. Thus, the error constitutes a "minor error." Matter of Detrece H. at 111. Respondent Javier C. acknowledges that he was apprised of the specific section and subsection of the Penal Law charged, and does not contest that the supporting deposition contains allegations of taking from the person of another, but professes that he did not have notice of the elements of the crime. Notably, Respondent Javier C., argues that "[i]t would be unfair for the court to amend the count as then all the felony counts in the petition will involve force from the person of another." (Respondent's affirmation in opposition, p. 3, ¶ 13). Respondent Javier C. does not explain why, this result, if true, would adversely affect him, leaving it to the Court to surmise that such an outcome might possibly hinder Respondent Javier C.'s ability to negotiate a plea. However, the rationale behind Respondent's argument is moot since amending Count Four would not result in every felony count in the petition involving the use of force from the person of another. Unlike Counts One, Two and Three, Count Four, P.L. §155.30(5) does not involve the use of force. Grand Larceny in the Fourth Degree, involves stealing property from the person of another,' but does not contain the descriptive language, of forcible taking,' as an element.

Furthermore, this Court is not persuaded by Respondent Javier C.'s contention that he would be prejudiced were this Court to grant the motion to amend. Respondent Javier C. repeatedly claims in his opposition papers that his "trial preparations and plea negotiations" have been "clearly" negatively affected but he fails to elaborate how. As reflected in the record, until the date on which Respondent Javier C. was prepared to make an admission to Count Four, both Respondents had conducted themselves throughout the course of these proceedings in a manner which demonstrated they had sufficient notice of the actual crimes charged. Further, this Court is hard pressed to accept that Respondent Javier C. would be prejudiced by the inclusion of the statutory language, "from the person of another" when Counts One, Two and Three all require a forcible taking, as already pointed out by Respondent himself in his previous argument. Thus, the Court finds that Respondents would suffer no actual prejudice by the proposed amendment as they had ample opportunity, based upon legally sufficient notice, to prepare for their defense, plea negotiations and trial strategy. Moreover, this Court notes that an adjournment, upon application, would be granted upon the amendment of the petitions for Respondents to further prepare. FCA §311.5(1). [*5]

Likewise, Respondent Maurice F.'s application to deny the motion to amend is also denied. Unlike Respondent Javier C., Respondent Maurice F. does not argue that he was prejudiced by the absence of the statutory language. Indeed, Respondent Maurice F. argues that "[t]he factor of prejudice only applies to amending the petition with respect to matters of form, time, place, names of persons and the like, Fam Ct Act §311.5(1). Fam Ct Act §311.5(2) which does not permit amendment for the purpose of curing legal insufficiency of the factual allegations or a failure to charge or state a crime, is silent as to prejudice. Therefore, this Court properly must not even reach the issue of prejudice." In essence, Respondent Maurice F.'s argument hinges entirely on this Court's willingness to accept that the amendment herein falls squarely under FCA § 311.5(2) rather than FCA §311.5(1). See Matter of Detrece H., 78 NY2d 107. This Court is not prepared to adopt that argument for the reasons indicated above. Further, Respondent Maurice F.'s reliance on Matter of Anthony Y., 293 A.D. 792 (3rd Dept. 2002), is misplaced as Anthony Y involved the substitution of charges which altered the essential legal elements of the charge and was therefore deemed impermissible. Likewise, the court's holding in Matter of Noel V., 537 NYS2d 977 {142 Misc 2d 552} (1989), is inapplicable to the instant matter. Noel V. involved the addition and not the amendment of a count. In rejecting the addition, the court noted that such an addition would result in prejudice to the respondent, the very issue Respondent Maurice F. has already claimed this Court need not find. Finally, Respondent Maurice F.'s effort to distinguish Matter of Philip M. from the case at bar is not persuasive. In Philip M., the Appellate Division ruled that it was error to deny a motion to amend a petition, which in all other respects, set forth a crime and the requisite elements. Respondent Maurice F. is mistaken in his argument that the Presentment Agency is attempting to substantively change the petition by impermissibly adding language to cure the defect of legal insufficiency of the factual allegations. As already noted, the formal petition herein, together with the supporting depositions, already satisfy the facial sufficiency requirements of Article 3. See Matter of Jahron S., 79 NY2d 632.

Finally, upon review of Respondent Maurice F.'s cross-motion to dismiss, the Court has reviewed Respondent's contentions and finds them to be without merit. Respondent claims that Counts Five and Nine are improperly pled. The Court infers the basis of this contention to be that the language "from another" is erroneously added to the definitions of Count Five, Attempted Robbery in the Third Degree, P.L. §110/160.05, and Count Nine, Attempted Petit Larceny,

P.L. §110/155.25. The Court finds that these errors relate solely to form, are not at variance with the non-hearsay factual allegations contained in the supporting deposition, and thus, do not tend to prejudice Respondents in the preparation of their defense at trial.

In view of the foregoing, the Presentment Agency's motion to amend the petition is hereby granted. Respondent Maurice F.'s cross-motion to dismiss is denied.

The above constitutes the decision and order of the Court.

ENTER:

Dated: February 19, 2009 [*6]

Bronx, New York____________________________Hon. Juan M. Merchan, J.F.C.