In re Selena B.

Appellate Division of the Supreme Court of New York

In re Selena B.

102 A.D.2d 724, 477 N.Y.S.2d 5, 1984 N.Y. App. Div. LEXIS 18881

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

DecidedJune 12, 1984

StatusPublished

This text of 102 A.D.2d 724 (In re Selena 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 Selena B., 102 A.D.2d 724, 477 N.Y.S.2d 5, 1984 N.Y. App. Div. LEXIS 18881 (N.Y. Ct. App. 1984).

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Opinion

—Order of the Family Court, New York County (Gartenstein, J.), entered August 26, 1983, adjudging appellant to be a juvenile delinquent and placing her on probation for two years, reversed, on the law, without costs, and the matter remanded for new fact-finding proceedings. 11 The appellant was found to have knowingly possessed heroin in the third degree, an act which, if committed by an adult, would have constituted a crime under subdivision 1 of section 220.16 of the Penal Law. 11 The laboratory report as to the drug was offered in evidence over objection to the effect that the conclusion stated therein was inadmissible hearsay inasmuch as no foundation was laid to show the nature of the tests and procedures and with no opportunity to cross-examine the person with knowledge of these matters. 11 The Corporation Counsel concedes that the report was improperly admitted. (Matter of Samuel A., 63 AD2d 585.) H The only real issue on this appeal is the contention by the appellant that there should be a dismissal of the charge because a rehearing would subject the appellant to double jeopardy. (See Burks v United States, 437 US 1; Greene v Massey, 437 US 19.) However, we are reversing for trial error as distinguished from evidentiary insufficiency. This does not constitute a determination that the case has not been proven and, therefore, the double jeopardy prohibition does not apply. Concur — Kupferman, J. P., Sandler, Sullivan, Silverman and Fein, JJ.

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—Order of the Family Court, New York County (Gartenstein, J.), entered August 26, 1983, adjudging appellant to be a juvenile delinquent and placing her on probation for two years, reversed, on the law, without costs, and the matter remanded for new fact-finding proceedings. 11 The appellant was found to have knowingly possessed heroin in the third degree, an act which, if committed by an adult, would have constituted a crime under subdivision 1 of section 220.16 of the Penal Law. 11 The laboratory report as to the drug was offered in evidence over objection to the effect that the conclusion stated therein was inadmissible hearsay inasmuch as no foundation was laid to show the nature of the tests and procedures and with no opportunity to cross-examine the person with knowledge of these matters. 11 The Corporation Counsel concedes that the report was improperly admitted. (Matter of Samuel A., 63 AD2d 585.) H The only real issue on this appeal is the contention by the appellant that there should be a dismissal of the charge because a rehearing would subject the appellant to double jeopardy. (See Burks v United States, 437 US 1; Greene v Massey, 437 US 19.) However, we are reversing for trial error as distinguished from evidentiary insufficiency. This does not constitute a determination that the case has not been proven and, therefore, the double jeopardy prohibition does not apply. Concur — Kupferman, J. P., Sandler, Sullivan, Silverman and Fein, JJ.

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Bluebook (online)

102 A.D.2d 724, 477 N.Y.S.2d 5, 1984 N.Y. App. Div. LEXIS 18881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-selena-b-nyappdiv-1984.

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