Matter of Christopher T.

[*1] Matter of Christopher T. 2010 NY Slip Op 50090(U) [26 Misc 3d 1213(A)] Decided on January 21, 2010 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 26, 2010; it will not be published in the printed Official Reports.

Decided on January 21, 2010
Family Court, Queens County

In the Matter of Christopher T., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-21818/09



Michael A. Cardozo, Corporation Counsel (Danielle

D'Abate of counsel), New York City, for Presentment Agency. The Legal Aid

Society (Tamara Steckler and Lisa E. Tuntigian of counsel), for respondent.

John M. Hunt, J.

By petition filed on October 28, 2009 respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Abortion in the Second Degree, Assault in the Third Degree, Attempted Assault in the Third Degree and Reckless Endangerment in the Second Degree.[FN1]

Respondent has moved for dismissal of Counts One and Two of the juvenile delinquency petition as jurisdictionally defective; an order suppressing his out-of-court statement to the police as involuntarily made or as obtained in violation of Family Court Act §305.2; and orders compelling discovery and the service of a Bill of Particulars by the Presentment Agency. [*2]

I

Count One of the petition alleges that the respondent committed an act which, but for the defense of infancy, would constitute the crime of Attempted Abortion in the Second Degree. Under Penal Law §125.40, a person commits the crime of Abortion in the Second Degree when:

"he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05." Penal Law §125.05 (3) defines an "abortional act" as "an act committed upon . . . a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administration, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female."

Count Two of the petition alleges that the respondent committed an act which, but for the defense of infancy, would constitute the crime of Assault in the Third Degree. Pursuant to Penal Law §120.00, a person commits the crime of Assault in the Third Degree when: "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person" (Penal Law §120.00 [1]). Penal Law §10.00 (9) in turn defines "physical injury" as the "impairment of physical condition or substantial pain."

With respect to Count One of the petition, respondent contends that there are insufficient non-hearsay factual allegations in the petition which, if true, establish that he attempted to commit an abortional act upon a female, because the allegations in the supporting depositions appended to the petition do not establish that he acted with the intent to cause a miscarriage of the fetus which the alleged victim (his mother) was bearing on the date of the incident. With respect to Count Two of the petition, respondent asserts that it is jurisdictionally defective because the non-hearsay factual allegations of the petition do not establish, if true, that his [*3]actions resulted in physical injury to his mother or to another person.

A

Because a juvenile delinquency 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]; Matter of Jahron S., 79 NY2d 632, 636 [1992]), the need for a jurisdictionally sufficient petition "is particularly acute at the outset of a juvenile delinquency proceeding, where there is no independent Grand Jury-like body to review the evidence and the petition is often the sole instrument upon which the accused is prosecuted" (Matter of Edward B., 80 NY2d 458, 464-465 [1992] [citation omitted]; see, Matter of Rodney J., 83 NY2d 503, 506 [1994]; Matter of Neftali D., 85 NY2d 631, 636 [1995]). Accordingly, "[t]he sufficiency requirements set forth in Family Court Act §311.2 are not simply technical pleading requirements but are designed to ensure substantive due process to an alleged juvenile delinquent, who can be arrested and deprived of liberty based on the petition" (Matter of Neftali D. at 634-635; see, Matter of Jamel E., 33 AD3d 797, 798 [2006]), and courts are required to apply a "stringent test" when considering the facial sufficiency of a juvenile delinquency petition in order "to assure that there is a valid and documented basis for subjecting the juvenile to prosecution" (Matter of Neftali D. at 636; Matter of Angel A., 92 NY2d 430, 433 [1998]).

"Family Court Act §311.2 measures the sufficiency of a petition by the sum of its two parts: the verified petition and any supporting depositions filed with the petition" (Matter of Neftali D. at 635; see, Matter of Bobby Jo F., 2 AD3d 1472, 1473 [2003]). A juvenile delinquency petition, or a count thereof, is jurisdictionally sufficient when "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, [*4]every element of each crime charged and the respondent's commission thereof" (Matter of Rodney J. at 507; see also, Matter of Nelson R., 90 NY2d 359, 362 [1997]; Matter of Angel A. at 434; Matter of Michael M., 3 NY3d 441, 448 [2004]; Matter of Markim Q., 7 NY3d 405, 407 [2006]). In other words, the petition and any supporting depositions filed with the petition must establish a prima facie case against the respondent (Matter of Jahron S. at 639; Matter of Edward B. at 463-464; Matter of Wesley M., 83 NY2d 898, 899 [1994]; Matter of Rodney J. at 507; Matter of Neftali D. at 634-635; Matter of Angel A. at 434; Matter of Lawrence A., 31 AD3d 440, 441 [2006]; Matter of Jamel E., at 798).

II

The juvenile delinquency petition before the Court consists of three documents: the verified petition signed by the Assistant Corporation Counsel and two supporting depositions which are appended to the verified petition and which constitute the factual part of the petition. In addition, the transcript of a 911 telephone call made to the New York City Police Department concerning the incident alleged to have occurred on June 26, 2009 is appended to or submitted with the petition, but that document is unverified and it does not constitute a corroborating affidavit or a supporting deposition (see, Fam. Ct. Act §311.1 [4]; 311.2 [2]; Matter of Jahron S. at 638). Missing from the petition is a supporting deposition by respondent's mother, the alleged victim of the underlying incident, leaving the petition without critical factual allegations which could only have been supplied by the victim or another eyewitness.

The first supporting deposition relates to the transcript of the 911 call. This deposition is sworn to by Ianthe Nicholson, a Police Communication Technician, and it states in pertinent part that: "[o]n June 26, 2009 at approximately 3:43 P.M. I received a 911 call in regard to an assault [*5]

in progress at 163 Beach 95 Street in Queens County. I heard a female caller yelling for the >perpetrator to stop! The female caller was yelling that the perpetrator was kicking and beating his mother and I could hear screaming and yelling in the background. The female caller also stated that the victim (i.e. the mother) was eight months pregnant." Nicholson's deposition also describes how a 911 call is received and then processed by the Police Department. Basically, the 911 operator receives the emergency telephone call and enters the information into the Police Department "Sprint" system and that information is then transmitted to a dispatcher. The police dispatcher then transmits the information from the "Sprint" report to police units in the field who respond. According to Ms. Nicholson, all 911 telephone calls are recorded the Police Department in the usual course if its business.

The second supporting deposition is signed by New York City Police Officer Eric Finn. According to Officer Finn, who is assigned to the 103rd Precinct in Queens County, on June 26, 2009 at approximately 3:50 P.M. "I received a radio run communication regarding a domestic incident and arrived at the location . . . [at the] "front of 163 Beach 95th Street, Rockaway . . . approximately 4 minutes subsequent to the radio communication. When I arrived at the location >I observed Chantilly Joachim who was standing outside with a child who looked [to be] approximately 8 to 10 years old. Chantilly Jackson appeared to be excited in that she was yelling and upset, saying in sum and substance, that she was tired of this and her son hit her'. I entered the location and observed the respondent. The respondent stated to me in sum and substance [that] he got into a fight with his mom and that he is sick of her yelling and screaming at him."

The transcript of the 911 telephone call received by Ms. Nicholson on June 26, 2009

reads as follows: [*6]

IN (Ianthe Nicholson): 911 Operator. Where's the emergency?

U/F (Unidentified Female caller): Yeah, I'm- this is in the- I don't see too good and

don't get my neighbor. Her son is fighting her and that's been going on for a long

time. And I don't want to get involved, because I really don't see too good. I got

(unclear). My head hurts. Could you please come. It's 163 Beach 95th Street.

IN: Is that in Queens ma'am?

U/F: Yeah, yeah, it's in Queens right now.

IN: And it's 163 Beach 95 Street?

U/F: Yes.

IN: Between Shore Front Parkway and Rockaway Beach Boulevard, right ma'am?

U/F: Yeah. Yeah, because for.

IN: And you said what's going on there, ma'am?

U/F: He's fighting her. She's pregnant, she's eight months pregnant. He's fighting

her.

IN: Is that her son?

U/F: Yes, that's her son. This is a going thing and I don't want to get involved,

but she's calling me to help her and I ain't getting involved. I'm not getting

involved. You're ridiculous.

IN: And any weapons? Any injuries involved ma'am?

U/F: No, no, no, no.

IN: No weapons? No injuries?

U/F: Come on, come on, get upstairs, get upstairs. He hitting her in the belly too. He's

punching her in the belly.

IN: He's assaulting her?

U/F: (inaudible). No, no, no, no. Now, you got to be (inaudible), I don't know, man . . .

Get off of me, get off of me. Do I got to stand- go back inside, go back inside . . . [*7]

(inaudible) . . .No.

IN: Ma'am?

U/F: Yes.

IN: Is he male black, white or Hispanic?

U/F: No, he's Black. He's Black, but he's - he yelled at me (inaudible).

IN: What is he wearing?

U/F: He's wearing a white tee shirt and a brief. He beating her. He kicking her all in

her stomach and everything.

IN: He's wearing, he's wearing a white tee shirt and what color pants ma'am?

U/F: I think it's a brief or black shorts or something. He's kicking her in the stomach.

She just fell on her stomach, she pregnant. This, this thing is ridiculous, because I was

sleeping and my kids going to be calling me. This is ridiculous, it is (inaudible).

IN: And you said she's eight months pregnant, ma'am?

U/F: Yeah. I'm not going - -

IN: Is this an apartment or a private house there ma'am?

U/F: It's a private house, a private house.

IN: And it's a private house, what floor [are] they on?

U/F: The first floor.

IN: The first floor?

U/F: Yeah.

IN: And is he still there?

U/F: Yes, yes. He's there downstairs. Yes, he's still there, still there.

IN: You care to leave your name and number? [*8]

U/F: No, because I don't want to get involved in this trouble, because every day it's a every day going thing. They at every day going thing. He fighting her, he punching her. She's pregnant. You know that I don't want to get involved. They been going on he curse and carry on and all the other stuff. And my husband told me not to get involved with that. So I'm just calling for help, because I think she hurt, because he was kicking her in the stomach, punching her, and she fell. I don't know what's going on right now.

IN: Does she need an ambulance ma'am?

U/F: I'm not sure if she do need it. I don't know.

IN: Ok. Well, I'm going to send her one . . anyway, just in case. Okay, ma'am?

U/F: Ok. Thank you.

IN: All right ma'am. I'm sending someone as soon as possible.

U/F: All right then.

A

In order to meet the requirement of "facial sufficiency" (Matter of Edward B. at 463-464; Matter of Neftali D. at 635-636; Matter of Nelson R. at 363) juvenile delinquency petitions must contain non-hearsay factual allegations which "provide reasonable cause to believe that the respondent committed the crime or crimes charged" (Fam. Ct. Act §311.2 [2]), along with non- hearsay factual allegation which "establish, if true, every element of each crime charged and the respondent's commission thereof"(Fam. Ct. Act §311.2 [3]). A petition which does not set forth a prima facie case against the respondent is both facially insufficient and jurisdictionally defective and subject to dismissal (Matter of David T. at 929; Matter of Detrece H. at 109; Matter of Rodney J. at 507; Matter of Wesley M. at 899; Matter of Neftali D. at 637).

The cases construing Family Court Act §311.2 and the substantially similar provisions [*9]governing criminal informations found in Criminal Procedure Law §100.40 (1), make clear that the pleading requirements for a jurisdictionally sufficient accusatory instrument or petition are several (see, People v. Casey, 95 NY2d 354, 362 [2000]; People v. Kalin, 12 NY3d 225, 228-229 [2009]; Matter of David T. at 928-929; Matter of Neftali D. at 637-638; Matter of Wesley M. at 899; Matter of Michael M. at 445). A defect in any part of the pleading may render the petition or

information facially defective, unless the particular defect is of a type which is subject to amendment under the statute (Fam. Ct. Act §311.5; Matter of Detrece H. at 110). The first requirement is that the petition, information or any supporting depositions contain factual allegations which establish, if true, every element of each crime charged and the accused's commission thereof; and the second requirement is that the factual allegations be "non-hearsay" (Fam. Ct. Act §311.2 [3]; Criminal Procedure Law §100.40 [1] [c]; People v. Kalin at 362; Matter of Michael M. at 445).

Therefore, in order to satisfy the prima facie case requirement under Family Court Act §311.2 (3) the petition must contain non-hearsay factual allegations establishing, if true, every element of each crime charged (Matter of Jahron S. at 639; Matter of Rodney J. at 507; Matter of Wesley M. at 899; Matter of Angel A. at 433; Matter of Michael M., at 445) as well as respondent's identity as the perpetrator of those crimes (People v. Whalen, 59 NY2d 273, 278- 279 [1983]; People v. Knight, 87 NY2d 873, 874 [1995]; People v. Cherry, 46 AD3d 1234, 1237 [2007], lv. denied 10 NY3d 839 [2008]; People v. Burnside, 58 AD3d 551 [2009], lv. denied 12 NY3d 923 [2009]).

The petition before this Court does not meet the requirement of facial sufficiency because the non-hearsay factual allegations simply do not establish, if true, that the respondent is the [*10]person who committed the charged crimes. Police Officer Finn was not an eyewitness to the underlying incident so his supporting deposition contains information obtained from the alleged

victim and from the respondent. For reasons not indicated, the alleged victim has not signed a supporting deposition which could have set forth non-hearsay factual allegations establishing a prima facie case against the respondent, and which could have corroborated respondent's statements to Officer Finn.

Finn's supporting deposition states, in pertinent part, that after he arrived at 163 Beach 95th Street on June 26, 2009, he "observed Chantilly Jackson who was standing outside with a child who looked approximately 8 to 10 years old. Chantilly Jackson appeared to be excited in that she was yelling and upset saying in sum and substance that she was tired of this' and that her son hit her'." Finn's deposition then states that "I entered the above location and observed the respondent. The respondent stated to me in sum and substance he got into a fight with his mom and he is sick of her yelling and screaming at him." However, there are no non-hearsay allegations in Officer Finn's supporting deposition which establish, if true, that the respondent is the son of Chantilly Jackson, and that even if he is that he is the son who assaulted her. The absence of non-hearsay factual allegations also extends to the transcript of the 911 call made by the unidentified apparently female neighbor, given that the neighbor does not identify the person who was being assaulted or the "son" who was allegedly assaulting the victim.

It should be observed that when Officer Finn arrived at 163 Beach 95th Street, Ms. Jackson was standing outside and in the front of the residence and there is no indication that Ms. Jackson ever identified respondent to be her son as well as the person who hit her. There is also no indication that respondent was present when Officer Finn arrived at the residence or that Ms. [*11]

Jackson told Officer Finn where the son who had hit her was located. It was not until Officer Finn entered the house that he first encountered the respondent, and neither respondent nor Ms. Jackson informed Finn that they had just been involved in an altercation with each other. While it is certainly possible that respondent and his mother has just engaged in a physical altercation, it is equally possible that Ms. Jackson was referring to a son other than the respondent as the perpetrator when she spoke to Officer Finn. It is also equally plausible that respondent's statement to Officer Finn concerning a fight and a verbal exchange with his mother referred to some prior incident other than the incident upon which this petition is based.

The supporting deposition of Ianthe Nicholson adds little to the analysis as she had no personal knowledge of what, if anything, occurred at the time and place of the alleged incident. Ms. Nicholson merely received the 911 emergency call from an unknown individual who identified herself as a "neighbor" of a pregnant person who was being assaulted by the neighbor's son at a particular location in Queens County. The identity of the "neighbor" does not appear to have been ascertained through investigation and the "neighbor" did not sign an affidavit or provide a supporting deposition which would have met the non-hearsay requirement of the statute. Nicholson's supporting deposition and the transcript of the 911 call, even were they admissible under an exception to the hearsay rule,[FN2] still do not render the petition jurisdictionally [*12]

sufficient because the caller never identified the neighbor who was being attacked or the son who was observed to be attacking her. These gaps in meeting the prima facie case requirement cannot simply be filled by conjecture.

Accordingly, as there are no non-hearsay factual allegations which establish, if true, that the respondent is the person who committed any of the crimes charged in the petition, it is facially defective and it must be dismissed pursuant to Family Court Act §315.1.

Given the decision herein, it is unnecessary to address the other branches of respondent's motion at this time.

This constitutes the decision and order of the Court.

E N T E R:

________________________________

John M. Hunt

Judge of the Family Court

Dated: Jamaica, New York

January 21, 2010 Footnotes

Footnote 1:The name of the respondent and that of his mother have been changed to protect their

confidentiality.

Footnote 2:Although the transcription of the neighbor's 911 call constitutes hearsay (see, People v. Caviness, 38 NY2d 227, 230 [1975]; People v. Buie, 86 NY2d 501, 505 [1995]; People v. Kass, 59 AD3d 77, 86 [2008]), "a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception" (People v. Casey at 361). In this instance the 911 call falls within the scope of the "present sense impression" exception to the hearsay rule which "permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter" (People v. Brown, 80 NY2d 729, 732 [1993]; see, People v. Buie at 505-507; People v. Vasquez, 88 NY2d 567, 574-575 [1996]). Moreover, because the information conveyed in the course of the telephone call to the police 911 operator relates to the investigation of criminal activity by law enforcement, the information conveyed by the caller does not constitute a testimonial statement which would be inadmissible under the Confrontation Clause (see, Crawford v. Washington (541 US 36, 51-54 [2004]; Davis v. Washington, 547 US 813, 823-828 [2006]; Melendez-Diaz v. Massachusetts, ___ US ___, 129 S. Ct. 2527, 2531-2532 [2009]; People v. Brown, 12 NY3d 332, 335 [2009]). That notwithstanding, the information conveyed in the 911call is equivocal as to whether the respondent is the person whose actions were being observed by the caller during the telephone call.