In re Dennis P.-A.

170 A.D.3d 727

96 N.Y.S.3d 63

In the MATTER OF DENNIS P.-A. (Anonymous), Appellant.

2017–10628

Docket Nos. D–8772–17, D–9595–17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 25, 2019

March 6, 2019

Stephen R. Hellman, Eastport, NY, attorney for the child, the appellant, Dennis P.-A.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (Steven B. Nacht of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In two proceedings pursuant to Family Court Act article 3, Dennis P.-A. appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Philip Goglas, J.), dated September 20, 2017. The order of fact-finding and disposition, insofar as appealed from, after fact-finding hearings on two separate petitions, adjudicated Dennis P.-A. a juvenile delinquent, upon findings that he committed acts which, if committed by an adult, would have constituted the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree, robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, and placed him in the custody of the New York State Office of Children and Family Services for a period of six months. The appeal brings up for review the denials, after hearings, of those branches of Dennis P.-A.'s omnibus motions which were to suppress his statements to law enforcement officials.

ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the appellant in the custody of the New York State Office of Children and Family Services for a period of six months is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.

In a superseding petition under Suffolk County Family Court Docket No. D–8772–17 (hereinafter the robbery case), the Presentment Agency alleged that Dennis P.-A. (hereinafter the appellant) committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree. In a separate petition, under Suffolk County Family Court Docket No. D–9595–17 (hereinafter the assault case), the Presentment Agency alleged that the appellant committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree. In a separate omnibus motion for each case, the appellant unsuccessfully sought, inter alia, to dismiss each petition as facially insufficient and to suppress statements he made to law enforcement officials (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ).

In a written order following separate fact-finding hearings on the two petitions, the court found beyond a reasonable doubt that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree, robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree. The court adjudicated the appellant a juvenile delinquent and placed him in the custody of the New York State Office of Children and Family Services for a period of six months.

The appeal from so much of the order of fact-finding and disposition as placed the appellant in the custody of the New York State Office of Children and Family Services for a period of six months has been rendered academic, as the period of placement has expired (see Matter of Willie J., 76 A.D.3d 1075, 907 N.Y.S.2d 695 ; Matter of Crystal B., 63 A.D.3d 1056, 1057, 880 N.Y.S.2d 553 ).

Contrary to the appellant's contention, the juvenile delinquency petitions filed against him were not jurisdictionally defective. Initially, we may decide whether the petitions were jurisdictionally deficient, without remittal to the Family Court, as such jurisdictional challenges are not waivable and are reviewable for the first time on appeal (see Matter of Michael M., 3 N.Y.3d 441, 443, 788 N.Y.S.2d 299, 821 N.E.2d 537 ; Matter of Ricki I., 157 A.D.3d 792, 793, 66 N.Y.S.3d 896 ). Moreover, as the issue is the facial sufficiency of the petitions, no additional evidence is needed for this Court to make a determination (see Family Ct Act § 311.2[3] ; Matter of Ricki I., 157 A.D.3d at 793, 66 N.Y.S.3d 896 ).

A juvenile delinquency proceeding is originated in the Family Court by the filing of a petition (see Family Ct Act § 310.1[1] ; Matter of Michael M., 3 N.Y.3d at 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ). For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof (see Family Ct Act § 311.2[3] ; Matter of Markim Q., 7 N.Y.3d 405, 407, 822 N.Y.S.2d 746, 855 N.E.2d 1160 ; Matter of Michael M., 3 N.Y.3d at 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ; Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Jahron S., 79 N.Y.2d 632, 639, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3] ; Matter of Jahron S., 79 N.Y.2d at 635–636, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count (see Matter of Neftali D., 85 N.Y.2d at 634, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Ricki I., 157 A.D.3d at 793, 66 N.Y.S.3d 896 ).

Upon our review of the petitions in both the robbery and the assault cases, we conclude that the supporting depositions set forth sworn, nonhearsay allegations sufficient, if true, to establish that the appellant committed the acts constituting the aforementioned crimes (see Family Ct Act § 311.2[3] ). Accordingly, the petitions were not facially deficient.

Similarly unavailing is the appellant's contention that his statements to law enforcement officials should have been suppressed based on the alleged violation of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). "When a police officer takes a child ... into custody for juvenile delinquency, the officer must ‘immediately notify the parent or other person legally responsible for the child's care, or if such legally responsible person is unavailable the person with whom the child resides, that the child has been taken into custody’ " ( Matter of Jimmy D., 15 N.Y.3d 417, 421, 912 N.Y.S.2d 537, 938 N.E.2d 970, quoting Family Ct Act § 305.2[3] ). "A child shall not be questioned pursuant to [ Family Court Act § 305.2 ] unless he and a person required to be notified pursuant to [ Family Court Act § 305.2(3) ] if present, have been advised" of his Miranda rights ( Family Ct Act § 305.2[7] ; see ...