In re George V.

100 A.D.2d 594, 473 N.Y.S.2d 541, 1984 N.Y. App. Div. LEXIS 17571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1984
• Status: Published

Opinion

In a proceeding pursuant to article 7 of the Family Court Act, the appeal is from an order of the Family Court, Queens County (Gartenstein, J.), dated August 2,1982, which, after a hearing, adjudicated appellant a juvenile delinquent, finding that he had committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the third degree, and placed him on probation for 18 months. The appeal brings up for review a fact-finding determination of the same court, dated July 12, 1982. H Order reversed, on the law, without costs or disbursements, fact-finding determination vacated, and proceeding remitted to the Family Court, Queens County, for further proceedings in accordance herewith. 11 Appellant was arrested after a police officer reached into appellant’s coat pocket and pulled out a gun. Another person was arrested during the same incident, but was charged with different crimes. At the fact-finding hearing, appellant’s attorney requested a voir dire of the officer to determine whether the arrest and search were legal and whether the gun was inadmissible evidence. The court refused this request stating that a motion to suppress the evidence should have been made prior to the hearing. H Subdivisions 1 and 3 of section 330.2 of the Family Court Act require that motions to suppress evidence be made and be heard prior to any fact-finding hearing. A failure to move to suppress evidence before a fact-finding hearing will be deemed a waiver of that issue (Family Ct Act, § 330.2, subd 7). However, the effective daté of this revised law was July 1, 1983 (see L 1982, ch 920, § 82). Since the instant case was concluded prior to the effective date of the statute, the statute does not apply (Family Ct Act, § 301.3). The common Family Court practice before the statute went into effect was to allow the conducting of a voir dire during the fact-finding hearing, in lieu of a motion to suppress (see Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act, § 330.2, p 412), and a refusal to allow a voir dire on the question of suppression of evidence during a juvenile delinquency proceeding was considered reversible error (Matter of Ernesto M., 65 AD2d 800; Matter of Victor B., 54 AD2d 733; Matter of Robert P., 40 AD2d 638). Accordingly, the fact-finding determination must be vacated and the case remitted to Family Court for a new fact-finding hearing. In light of the afore-mentioned newly enacted law, however, a hearing should be conducted prior to the fact-finding hearing, in order to determine whether the gun was properly seized and whether it should be suppressed as evidence. H We additionally note that the court erred in summarily denying appellant’s request to direct the prosecution to turn over, for the purpose of cross-examination, the transcript of the arresting officer’s testimony before a Grand Jury concerning the person arrested with appellant (CPL 240.45; People v Rosario, 9 NY2d 286, cert den 368 US 866). The court should inspect the officer’s Grand Jury testimony in camera and relinquish to appellant any material found not to be cumulative or irrelevant (People v Poole, 48 NY2d 144; People v Walton, 89 AD2d 611). Titone, J. P., Mangano, Thompson and Eiber, JJ., concur.