In re Michael G.

Appellate Division of the Supreme Court of New York

In re Michael G.

93 A.D.2d 836, 461 N.Y.S.2d 57, 1983 N.Y. App. Div. LEXIS 17686

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 1983

StatusPublished

Cited by4 cases

This text of 93 A.D.2d 836 (In re Michael G.) 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 Michael G., 93 A.D.2d 836, 461 N.Y.S.2d 57, 1983 N.Y. App. Div. LEXIS 17686 (N.Y. Ct. App. 1983).

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Opinion

— In a juvenile delinquency proceeding, the appeal (by permission) is from an order of the Family Court, Rockland County (Weiner, J.), dated November 15, 1982, which denied the juvenile’s motions to dismiss the petition and for discovery. Order modified by deleting the provision denying the motion for discovery and substituting a provision granting that motion. As so modified, order affirmed, without costs or disbursements. Respondent’s time to comply with the granted discovery is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. Appellant should be permitted discovery of the scientific evidence despite his late application (see GPL 255.20, subd 1). We note that it was error for the Family Court to deny appellant’s motion to dismiss the petition based solely on timeliness, without considering the merits of the motion. A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding (see People v Hall, 48 NY2d 927; People v Case, 42 NY2d 98; People v Harper, 37 NY2d 96), and the rule must be applied to delinquency proceedings (cf. Matter of Isaac W., 89 AD2d 831). However, since the instant petition was sufficient (see People v Cohen, 52 NY2d 584), it is unnecessary to remit for further consideration of the issue. Titone, J. P., Lazer, Weinstein and Boyers, JJ., concur.

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— In a juvenile delinquency proceeding, the appeal (by permission) is from an order of the Family Court, Rockland County (Weiner, J.), dated November 15, 1982, which denied the juvenile’s motions to dismiss the petition and for discovery. Order modified by deleting the provision denying the motion for discovery and substituting a provision granting that motion. As so modified, order affirmed, without costs or disbursements. Respondent’s time to comply with the granted discovery is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. Appellant should be permitted discovery of the scientific evidence despite his late application (see GPL 255.20, subd 1). We note that it was error for the Family Court to deny appellant’s motion to dismiss the petition based solely on timeliness, without considering the merits of the motion. A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding (see People v Hall, 48 NY2d 927; People v Case, 42 NY2d 98; People v Harper, 37 NY2d 96), and the rule must be applied to delinquency proceedings (cf. Matter of Isaac W., 89 AD2d 831). However, since the instant petition was sufficient (see People v Cohen, 52 NY2d 584), it is unnecessary to remit for further consideration of the issue. Titone, J. P., Lazer, Weinstein and Boyers, JJ., concur.

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Bluebook (online)

93 A.D.2d 836, 461 N.Y.S.2d 57, 1983 N.Y. App. Div. LEXIS 17686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michael-g-nyappdiv-1983.

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