In re Albert B.

79 A.D.2d 251, 436 N.Y.S.2d 653, 1981 N.Y. App. Div. LEXIS 9698
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 2, 1981
StatusPublished
Cited by13 cases

This text of 79 A.D.2d 251 (In re Albert B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Albert B., 79 A.D.2d 251, 436 N.Y.S.2d 653, 1981 N.Y. App. Div. LEXIS 9698 (N.Y. Ct. App. 1981).

Opinion

OPINION OF THE COURT

Mangano, J.

The primary issue on this appeal is whether the notice requirements of CPL 710.30 are applicable to a Family Court delinquency proceeding (Family Ct Act, art 7) in which a petitioner intends to offer at the fact-finding hearing evidence of a prior statement by respondent to a public servant (CPL 710.30, subd 1, par [a]) or testimony by a [252]*252witness who has previously identified the respondent as the alleged delinquent in a confrontation arranged by police for the purpose of making such an identification. (See CPL 710.30, subd 1, par [b]; People v Berkowitz, 50 NY2d 333, 338, n 1; People v Gissendanner, 48 NY2d 543, 552.)

On October 4, 1979 a delinquency petition was filed in the Family Court, Kings County, alleging that respondent had committed acts, which, if committed by an adult, would have constituted the crimes of robbery in the first degree (Penal Law, § 160.15), attempted grand larceny in the first degree (Penal Law, §§ 110.00,155.40), criminal possession of a weapon in the fourth degree (Penal Law, § 265.01), and criminal possession of stolen property in the third degree (Penal Law, § 165.40). These allegations arose out of four separate incidents that occurred on or about September 27, 1979, in which respondent allegedly robbed four individuals at knifepoint.

Respondent appeared in Family Court on October 4,1979 and entered a denial of the allegations contained in the petition. At the time, petitioner served a notice on respondent’s Law Guardian, which was labeled: “Notice Served Under Sec. 250.20 And 710.30 C.P.L.”. In part, this notice, which was a preprinted form, stated that petitioner intended to offer at the fact-finding hearing testimony identifying respondent as a person who had committed the delinquent acts alleged, which testimony would be given by a witness who had previously identified him. It further stated that petitioner intended to offer evidence of statements made by respondent to a public servant. Blank portions of the notice that should have been completed with information specifying the type and date of the prior identification of respondent and the type, date and substance of respondent’s statement were not completed by petitioner. No further notice Was served upon respondent or his Law Guardian, except for an equally deficient oral notice given at the time of the probable cause hearing.

The Law Guardian moved by order to show cause, dated October 22, 1979, for an order precluding petitioner from introducing at the fact-finding hearing any evidence of the nature contemplated by CPL 710.30. By decision and order, dated November 28, 1979, the Family Court granted the [253]*253Law Guardian’s motion and, in effect, denied petitioner’s request to serve a late notice.

Article 7 of the Family Court Act does not provide for any notice analogous to that required by CPL 710.30 in criminal proceedings. Nor is such notice authorized by the general procedure provisions of subdivision (a) of section 165 of the Family Court Act which reads in relevant part: “Where the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed by this act, the procedure shall be in accord with rules adopted by the administrative board of the judicial conference or, if none has been adopted, with the provisions of the civil practice act to the extent they are suitable to the proceeding involved.”

Neither the rules of the administrative board nor the CPLR provide for any notice of the type found in CPL 710.30.

The threshold question, then, is whether, and to what extent, the Criminal Procedure Law can be applied to delinquency proceedings when nothing in the express language of the Family Court Act authorizes such an application.

In Matter of Gregory W. (19 NY2d 55, 62), the Court of Appeals held that in view of the possible loss of personal freedom delinquency proceedings “are at the very least quasi-criminal in nature.” This holding was in accord with the major thrust of the case law developed by the United States Supreme Court in such cases as Kent v United States (383 US 541), Matter of Gault (387 US 1), and Matter of Winship (397 US 358). In each of these cases it was recognized that juvenile proceedings need not conform to all the requirements of a criminal trial, but they-must comport with the demands of due process and fair treatment. (Kent v United States, supra, p 562.) The reason for this was aptly stated in the landmark decision in Matter of Gault (supra, at pp 27-28): “[W]e confront the reality of that portion of the Juvenile Court process with which we deal * * * A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence— [254]*254and of limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time * * * In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ 1

The Supreme Court thus decided in Gault (swpra) that due process and fair treatment required that juveniles be granted certain rights that are accorded adult criminal defendants, viz., (1) timely notice of charges, (2) the right to counsel, (3) the right to confront and cross-examine witnesses, and (4) the privilege against self incrimination.

Under the same due process analysis, the Supreme Court in Matter of Winship (supra) held, that a juvenile delinquency petition must be sustained by the same quantum of proof as is required for conviction in an adult criminal proceeding.

In Matter of Daniel D. (27 NY2d 90), the Court of Appeals clearly adopted the due process and fair treatment standard enunciated by the United States Supreme Court in weighing the measure of process required in juvenile delinquency proceedings. It reiterated the Kent v United States (supra, p 93) holding that some, but not all, of the procedural requisites of a criminal trial are applicable to a juvenile proceeding. In this regard, it plainly stated that Family Court procedure is not governed by this State’s criminal procedure statute, and, for that reason, specifically rejected a claim that a juvenile respondent was statutorily entitled to pretrial notice under section 813-f of the Code of Criminal Procedure (at p 95), from which CPU 710.30 is derived.

Nevertheless, statutory provisions of New York’s adjective criminal law have been applied to Family Court proceedings. (See Matter of Kenneth S., 52 AD2d 880; [255]*255Matter of Julius S., 44 AD2d 826; Matter of Steven D. G., 43 AD2d 585; Matter of William L., 41 AD2d 674; Matter of Arthur M., 34 AD2d 761.) In each of these cases, however, provisions of the Criminal Procedure Law or of its predecessor, the Code of Criminal Procedure, were extended to juveniles as a matter of constitutional necessity, and not as a matter of statutory right. (See Matter of Steven B., 30 AD2d 442, 444.) A similar position was taken by the Court of Appeals in Matter of James H.

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Bluebook (online)
79 A.D.2d 251, 436 N.Y.S.2d 653, 1981 N.Y. App. Div. LEXIS 9698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-albert-b-nyappdiv-1981.