Matter of Michael M.

821 N.E.2d 537, 3 N.Y.3d 441, 788 N.Y.S.2d 299, 2004 N.Y. LEXIS 3567

• Court: New York Court of Appeals
• Decided: November 23, 2004
• Status: Published

Opinions

OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether the jurisdictional requirements for filing in Family Court are met when an order of removal and the accompanying pleadings and proceedings contain only hearsay allegations; and, if they are not met, whether this deficiency is waivable. For the reasons that follow, we conclude that such a removal is jurisdictionally defective. Further, the defect is nonwaivable and thus is reviewable for the first time upon appeal.

I.

This case originated with the filing of a felony complaint on April 3, 2002 in Criminal Court, Bronx County. The complaint charged appellant Michael M., who was 14 years old at the time, with participating in a group assault on a 13-year-old boy to steal his bicycle. In the resulting melee, the 13 year old suffered a broken leg. The felony complaint was signed by a police officer and was based on his interview of the victim. In other words, the complaint contained only hearsay.

After Michael M. was arraigned, he was interviewed by the New York City Criminal Justice Agency, which recommended juvenile offender treatment. Accordingly, at a calendar call on May 15, 2002, the prosecutor asked Criminal Court to remove the case to Family Court “pursuant to CPL 180.75 [and] 210.43,”¹ and handed up a form removal order for the judge to sign. ² The prosecutor cited three factors to support her oral application: that Michael M. was not the “sole participant” in the attack; that removal would assure that the victim, who was of “tender age,” would not be “subjected to needless trauma”; and that removal would not negatively affect the criminal justice system (see CPL 180.75 [6] [b]). The judge asked if there were “[a]ny objections,” and Michael M.’s attorney replied “No.” The judge did not place on the record the reasons causing him to exercise his discretion to order removal (cf. CPL 180.75 [6] [a], [c]; see also Matter of Raymond G., 93 NY2d 531, 538 [1999]). He immediately signed the order, which directed Michael M. to appear in Family Court a week later, on May 22, 2002.

At his initial Family Court appearance, Michael M. was served with the felony complaint, the removal order and the transcript of the Criminal Court proceeding. On November 14, 2002, Family Court found that Michael M. had committed acts which, if committed by an adult, would constitute the felonies of attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree (two counts), attempted grand larceny in the fourth degree and attempted criminal possession of stolen property in the fifth degree. By order of disposition dated November 22, 2002, Family Court placed him on probation for 24 months.

Michael M. challenged Family Court’s jurisdiction in this matter for the first time on appeal, arguing that the removal order and its accompanying papers were facially insufficient because they contained only hearsay allegations. Citing to Matter of Desmond J. (93 NY2d 949 [1999]), the Appellate Division rejected Michael M.’s claim, stating that “[o]n this record, jurisdiction was sufficiently established” (309 AD2d 631 [1st Dept 2003]). We now reverse.

II.

A juvenile delinquency proceeding “is originated [in Family Court] by the filing of a petition” (Family Ct Act § 310.1 [1]). Family Court Act § 311.1 specifies the delinquency petition’s contents. As relevant on this appeal, Family Court Act § 311.1 (7) provides that a removal order from a criminal court to Family Court and all associated “pleadings and proceedings” (other than those not yet transcribed) “shall be deemed to be a petition filed pursuant to subdivision one of section 310.1 containing all of the allegations required by this section [i.e., Family Ct Act § 311.1] notwithstanding that such allegations may not be set forth in the manner therein prescribed” (emphasis added). Here, the presentment agency takes the position that by virtue of section 311.1 (7)’s express terms, the removal order and whatever other pleadings and proceedings may accompany it in an individual case are deemed to constitute a facially sufficient petition. We disagree.

The need for nonhearsay allegations stems not from Family Court Act § 311.1 (“this section”), but instead from subdivision (3) of a different section—Family Court Act § 311.2. The latter provision mandates that the factual allegations of a petition and/or any supporting depositions must contain “non-hearsay allegations [to] establish, if true, every element of each crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.2 [3]; see also Family Ct Act § 315.1 [1] [a]; [2]). Section 311.1 (7) exempts a removal order from compliance with the requirements of section 311.1; it does not excuse compliance with section 311.2 and its nonhearsay requirements. Accordingly, we conclude that removals must be supported by nonhearsay factual allegations to establish every element of the crimes charged and the juvenile’s commission of these crimes.

Other provisions in the Family Court Act support our reading of Family Court Act § 311.1 (7). In 1978, the Legislature amended, former Family Court Act § 731 to add the removal provision as subdivision (3) (see L 1978, ch 481, § 48), which provided in relevant part as follows:

“When an order of removal ... is filed with [Family Court] such order and the pleadings and proceedings transferred with it shall be and shall be deemed to be a petition filed pursuant to subdivision one of this section containing all of the allegations therein required notwithstanding that such allegations may not be set forth in the manner therein prescribed” (former Family Ct Act § 731 [3] [emphasis added]).

Subdivision (1) of former Family Court Act § 731, in turn, required the filing of a petition to originate a juvenile delinquency proceeding (comparable to Family Ct Act § 310.1 [1]). In addition, subdivision (1) required the petition to allege that the juvenile had committed an act that, if done by an adult, would constitute a crime and to specify the act as well as the time and place of its commission (former Family Ct Act § 731 [1] [a], restated in Family Ct Act § 311.1 [2], [3] [d], [e], [f], [g]); that the juvenile was under 16 years old at the time of the alleged act’s commission (former Family Ct Act § 731 [1] [b], restated in Family Ct Act § 311.1 [3] [c]); and that the juvenile required supervision, treatment or confinement (former Family Ct Act §731 [1] [c], restated in Family Ct Act § 311.1 [3] [j]).

Thus, the removal provision enacted by the Legislature in 1978 as former Family Court Act § 731 (3) did not, by its express terms, exempt a removal from compliance with any of the former Act’s requirements except those in section 731 (1), which are broadly comparable to Family Court Act § 311.l’s requirements from which a removal pursuant to section 311.1 (7) is exempt. Underscoring this point, the Legislature expressly stated that other provisions of the former Family Court Act were inapplicable to a removal order. For example, the Legislature amended former Family Court Act § 733, which provided for various individuals to originate a juvenile delinquency proceeding, to specify that its provisions did “not apply to a proceeding originated by the filing of an order of removal” (L 1978, ch 481, § 49; see also ch 481, § 50 [providing that former Family Ct Act § 734, relating to procedures for initiation of juvenile delinquency proceedings by individuals, did not apply in the removal context; ch 481, § 51 [providing that former Family Ct Act § 734-a, relating to various approvals for the filing of a petition, did not apply in the removal context]).³

Similarly, former Family Court Act § 739, which governed release or detention after the filing of a petition and prior to an order of disposition, was amended by adding language as subdivision (c) to require that “[w]here the petition consists of [a removal order], the petition shall be deemed to be based upon a determination that probable cause exists to believe the respondent is a juvenile delinquent and the respondent shall not be entitled to any further inquiry on the subject of whether probable cause exists” (L 1978, ch 481, § 52). This language was carried over into Family Court Act § 325.1 (5) when the Legislature recodified the Family Court Act’s juvenile delinquency provisions in 1982 (L 1982, ch 920, § 1). Interestingly, however, the Legislature provided an exception from section 325.1 (5) for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4)—the bases for Michael M.’s removal—provided that the juvenile was not afforded a probable-cause hearing for a reason other than waiver.⁴ The Legislature also enacted Family Court Act § 311.2 in 1982, but did not similarly provide any express exception from its nonhearsay requirements for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4).

Nor does our decision in Matter of Desmond J., which also involved a felony complaint based solely on hearsay allegations, contradict our reading of Family Court Act § 311.1 (7). At the initial appearance in Family Court in Matter of Desmond J., the presentment agency filed a supporting deposition containing nonhearsay allegations to comply with Family Court Act § 311.2 (3). The juvenile “objected, arguing that only the felony complaint and the other papers transferred from criminal court could properly be deemed the petition[, and] moved to dismiss the petition as jurisdictionally defective, as it did not contain non-hearsay allegations” (93 NY2d at 950). Both Family Court and the Appellate Division (246 AD2d 111 [2d Dept 1998]) rejected the juvenile’s claim.

The Appellate Division adopted the position pressed by the presentment agency here; i.e., that a removal order and whatever other pleadings and proceedings may accompany it are deemed by Family Court Act § 311.1 (7) to constitute a facially sufficient petition. The Appellate Division recognized that we had “consistently stated that a juvenile delinquency petition must contain nonhearsay factual allegations which support every element of the crimes charged to meet the legal sufficiency requirements of Family Court Act § 311.2” (246 AD2d at 113, citing Matter of Neftali D., 85 NY2d 631 [1995]; Matter of Rodney J., 83 NY2d 503 [1994]; Matter of Edward B., 80 NY2d 458 [1992]; Matter of Jahron S., 79 NY2d 632 [1992]; Matter of Detrece H., 78 NY2d 107 [1991]; and Matter of David T., 75 NY2d 927 [1990]). “All of these cases were decided upon the theory that because a juvenile delinquency petition may be used to deprive a juvenile of his liberty, the accuracy of the allegations contained therein must be reliable” (246 AD2d at 113-114). The Court concluded, however, that these considerations were not relevant in the removal context because “there will generally have been proceedings held [i.e., a felony hearing or grand jury proceeding] to test the case against the accused juvenile offender”; and, further, the Criminal Court “is required, depending upon the extent of action previously taken in Criminal Court, to make findings as to reasonable cause or evidentiary sufficiency” (id. at 115).

We affirmed the Appellate Division, but on different grounds entirely. As previously noted, the presentment agency had filed a supporting deposition satisfying the requirements of Family Court Act § 311.2 (3) at the initial appearance in Family Court. Because “[i]n a removal context, this was the earliest stage at which the deposition could have been filed,” we concluded that the petition was not improperly amended within the meaning of Family Court Act § 311.5 (93 NY2d at 951), and was therefore facially sufficient. Accordingly, in Matter of Desmond J. we did not need to reach the “broader question” that we now resolve. (Id. at 952.) In short, because the papers transferred from the Criminal Court, as supplemented at the earliest possible moment by the supporting deposition, in fact satisfied the requirements of section 311.2 (3), we did not need to decide in Matter of Desmond J. whether they were required to do so.

We have, moreover, consistently viewed petitions failing to satisfy Family Court Act § 311.2 (3) as exhibiting a nonwaivable jurisdictional defect (see Matter of Neftali D., 85 NY2d at 636-637; Matter of Rodney J., 83 NY2d at 507; Matter of Jahron S., 79 NY2d at 637; Matter of Detrece H., 78 NY2d at 109-110; Matter of David T, 75 NY2d at 929).⁵ In People v Casey (95 NY2d 354 [2000]), we recently considered whether a hearsay pleading violation of CPL 100.40 (1), from which Family Court Act § 311.2 is derived, is jurisdictional and nonwaivable. We concluded that it was not. In doing so, however, we noted “the importance of the curability of a particular procedural defect as a factor weighing in favor of requiring preservation” (id. at 367). Because a legally insufficient juvenile delinquency petition under Family Court Act § 311.2 (3) cannot be cured by amendment, “we have held that hearsay pleading defects in delinquency petitions need not be preserved” (id.).

Finally, there may indeed be cases where the reliability of the charges in a felony complaint will have been tested at a hearing or in the grand jury or otherwise during the course of juvenile offender proceedings taking place in a criminal court prior to removal. In such cases, the juvenile may receive protections equivalent to a nonhearsay supporting deposition. In this case, however, no such equivalent protections were afforded Michael M.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

1 . CPL 180.75 (4) provides that when a juvenile offender is arraigned before a local criminal court upon a felony complaint, the court shall order removal to Family Court at the District Attorney’s request if, upon consideration of criteria specified in CPL 210.43 (2), removal is determined to be “in the interests of justice.” These criteria, which the court must consider “to the extent applicable,” include the seriousness and circumstances of the offense, the extent of harm caused and the evidence of guilt, whether admissible or inadmissible at trial (CPL 210.43 [2]). Additional showings are required where the felony complaint charges murder in the second degree, rape in the first degree and other specified serious crimes (see CPL 180.75 [4]). Further, where a court directs removal to Family Court, the provisions of CPL 725.05 govern the order. For a removal order made pursuant to CPL 180.75 (4), the court must specify the act or acts it found “reasonable cause to allege” (CPL 725.05 [3]).

2 . The form order purports to be an order for Supreme Court to remove a criminal proceeding to Family Court upon the People’s motion, acting pursuant to paragraph (a) of CPL 180.75 (4). This provision, which took effect on September 1, 1978 (see L 1978, ch 481, §§ 33, 67), was repealed when section 180.75 (4) was substantially amended, effective August 4, 1979 (see L 1979, ch 411, §§ 5, 26; Governor’s Approval Mem, 1979 McKinney’s Session Laws of NY, at 1800). Thus, the order is not only boilerplate, but outdated boilerplate.

3 . When the Legislature recodified the Family Court Act’s juvenile delinquency provisions in 1982, it restricted origination of juvenile delinquency proceedings to presentment agencies (see Family Ct Act § 310.1 [2]; see also L 1982, ch 920, §§ 1, 28).

4 . As a result, Michael M. would have been entitled to a probable-cause hearing in Family Court because he was not afforded a hearing to test the evidence in Criminal Court, and he did not waive his right to a hearing on the felony complaint.

5 . The dissent suggests that this disserves young people charged with juvenile delinquency. We do not doubt that among the purposes of a delinquency adjudication is the provision of necessary services to the delinquent. But we recognize as well that a system of justice must always ensure that procedural safeguards are met and legal requirements are fulfilled. Under our law, presentment agencies may only prosecute based on a facially sufficient petition. Because their failure to do so has consequences, we are confident that they will be vigilant about complying with their statutory mandate in the future.