IN RE: C.S. (2006)

This case presents an issue of first impression for this Court, Whether the Court should, based on a recent Second Department decision and in the furtherance of justice, vacate its prior finding to a violation of probation and release Respondent who has been in placement since August 1, 2005.

Respondent has filed this Notice of Motion pursuant to Family Court Act (FCA) sections 311.2, 355.1(1)(b) and 360.2 seeking not only to dismiss the violation of probation petition and the Court's finding that Respondent violated his probation but also to vacate the Court's order placing Respondent with the Office of Children and Family Services for a period of up to 18 months.

PROCEDURAL HISTORY

On January 23, 2003, the Presentment Agency filed a petition alleging that Respondent had committed acts which if committed by an adult would constitute the crimes of attempted gang assault in the third degree, assault in the third degree, unlawful imprisonment in the second degree and menacing in the third degree.

On April 22, 2003, following a fact finding hearing, Respondent was found to have committed the above acts.   On June 9, 2003, Respondent was adjudicated a Juvenile Delinquent and placed on probation for a period of 24 months pursuant to FCA § 353.2.   As a condition of probation, Respondent was required to attend school regularly and obey all the lawful school rules and regulations.

On March 24, 2005, the Probation Officer filed a verified petition alleging that upon information and belief Respondent knowingly violated the terms and conditions of probation in that he has missed 81 days of school and has been late on approximately 24 days.   Attached to the violation petition is a delegation of authority by the principal of DeWitt Clinton High School and a certification by the guidance counselor stating that the record attached is a full and complete record of the condition, act, transaction, occurrence or event of the Institution concerning the Respondent.   The Individual Student Attendance Report (RISA) and the Cumulative Cut list are attached to this certification.

On May 31, 2005, a violation of probation hearing was held and properly delegated and certified school records were introduced into evidence pursuant to Civil Practice Law and Rules (CPLR) § 4518.   The Court found that Respondent had violated the terms of his probation by failing to attend school regularly.   On August 1, 2005, the Court revoked Respondent's probation and placed him with the Office of Children and Family Services for a period of up to 18 months as the least restrictive alternative, consistent with his needs, as well as, the protection of the community.

According to the motion papers, a Notice of Appeal was filed on August 3, 2005.   Nevertheless, on December 1, 2005, Respondent filed this Notice of Motion.

RESPONDENT'S POSITION

It is Respondent's position that the truancy charge in the probation violation petition is jurisdictionally defective because the school attendance record supporting the truancy charge contains no sworn allegations from the guidance counselor who certified the records or from any other school personnel.   Specifically, Respondent relies on Matter of Markim Q., 22 A.D.3d 498, 803 N.Y.S.2d 646 (2d Dept.2005) which dismissed a violation of probation petition rendering it jurisdictionally defective because the school attendance records were not verified, notwithstanding the fact that they were submitted with a certification and delegation of authority from the school administration.

Additionally, Respondent contends that the nonhearsay requirements articulated in FCA § 311.2(3) which govern initial juvenile delinquency petitions are also applicable to violation of probation petitions filed pursuant to FCA § 360.2 and that the nonhearsay allegations in a juvenile delinquency petition must be verified or attested to by an individual with knowledge of the facts.

Lastly, Respondent contends that since the original probation order was scheduled to expire on June 9, 2005, and since dismissal of the truancy charge will result in Respondent being credited with the time the violation of probation petition has been pending, the Court has lost jurisdiction.

PRESENTMENT AGENCY'S POSITION

Presentment Agency submits that dismissal of the violation of probation petition is unwarranted for several reasons:

First, the Second Department's recent decision in Matter of Markim Q., supra, does not satisfy the statutory requirement of substantial change of circumstances pursuant to FCA § 355.1 which requires a factual and not a legal showing.   While it is conceded that this Court is bound by the Second Department's decision, Presentment Agency adds that this Court has the discretion to deny Respondent's request on grounds unrelated to the merits of the motion.

Second, Respondent offers no explanation or good cause for the belated nature of his request which was filed four months after the final order was entered and long after his appellate remedies were exhausted.

Third, the violation of probation petition is facially sufficient and fully comports with the requirements of FCA § 360.2. Notwithstanding the lack of attestation language, certified records are the statutory equivalent of sworn allegations of fact.   Because they constitute records of a municipal corporation (see CPLR § 2307) and because they are certified in conformity with CPLR § 4518, these records constitute prima facie evidence of Respondent's truancy from school during his period of probation supervision.   Presentment Agency argues that there is no reason that a document containing such independent indicia of reliability as to constitute prima facie evidence, by statute, cannot be used for the same purpose.

Fourth, the Matter of Markim Q. is factually distinguishable from the instant case.   The Second Department noted that the certification appended to the Appellant's school records required the individual signing the certification to check off the type of record being certified, which was not done.   In this case, the certification and delegation have no such defect and they state with specificity that the records annexed are school attendance records.

Fifth, the statutes should not be interpreted by courts that would result in absurdity.   Thus, were the Courts to follow Respondent's reasoning, the same certified and delegated school attendance records that sufficed, without more, to establish Respondent's truancy at trial, would not be sufficient to initiate a violation of probation proceeding against him.

THE LAW

FCA § 360.1(1) provides that a respondent who is placed on probation shall remain under the legal jurisdiction of the [family] court pending expiration or termination of the period of the order of probation.   The Practice Commentaries in McKinney's Consolidated Laws of New York states that this provision was included in order to give formal juridical status to the concept of the relationship between the court and the probationer.   (Besharov and Sobie, Book 29A, Part 1, FCA § 360.1, p. 516).   Therefore, any purported defect in the violation of probation petition does not affect the Court's jurisdiction.

 The question of the court's lack of jurisdiction can be properly raised by motion at any time while the order of the court is in force and effect.   Matter of Muhlhausen v. Ray, 89 Misc.2d 298, 391 N.Y.S.2d 55 (Fam.Ct. Suffolk Co.1977).

The primary section to be applied when a motion is filed requesting a New Hearing:  staying, modifying or terminating an order is FCA § 355.1.

Subsection (1) states:  Upon a showing of a substantial change of circumstances, the court may on its own motion or on motion of the respondent or his parent or person responsible for his care:  (a) grant a new fact-finding or dispositional hearing or (b) stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article.

Addressing the scope of FCA § 355.1, Besharov and Sobie, supra, P. 497 state that it is not a complete statement of the Family Court's authority to modify or vacate its prior order.   This section and CPLR § 5015 merely codify some of the principal grounds upon which the courts can exercise their inherent power to vacate, but do not set forth an exhaustive list or in any way limit this power.  Matter of Delfin, 123 A.D.2d 318, 506 N.Y.S.2d 215 (2d Dept.1986);  CPLR shall apply to proceedings under this act to the extent that they are appropriate to the proceedings involved.  (FCA § 164).   Therefore, it would be proper for this court to also treat the motion brought by Respondent as one brought under CPLR § 5015 (subd. (a) par. 4) on the ground that the court which rendered the judgment or order lacked jurisdiction to render such a judgment or order.

 Additionally, the lower courts have found that even in the absence of a substantial change in circumstances, the Court has inherent power to alter its own prior order(s) for sufficient reason(s) in the furtherance of justice.  Matter of Carmen R., 123 Misc.2d 238, 473 N.Y.S.2d 312 (Fam. Ct. St. Lawrence Co., 1984).   See, also, Matter of Javon H., 5/9/2003, N.Y.L.J., at 24, col. 6.   Courts have traditional power to grant relief from an order or judgment in the interest of justice and in the exercise of their discretion, Matter of Malik O., 158 Misc.2d 272, 598 N.Y.S.2d 688 (Fam. Ct. Kings Co.1993).

ANALYSIS AND DECISION

After reviewing the motion papers, the relevant statutes and case law, the Court is exercising its inherent power to vacate its own orders in the interest of justice despite the fact that there was no factual showing of a change of circumstances pursuant to FCA § 355.1.

 The Court does not find persuasive Presentment Agency's contention that Respondent's calling into question the Court's jurisdiction is belated.  CPLR § 5015 (subd. (a) does not provide any specific time limitation for the bringing of any motion pursuant to its provisions and certainly no time period should apply where the court's order is being attacked as void for lack of jurisdiction.  “Want of jurisdiction may be asserted at any time.”  Matter of Linda Muhlhausen, supra, P. 57.   In the same vein, Respondent's failure to object to the sufficiency of the petition during the trial does not waive the issue.  Matter of Neftali D., 85 N.Y.2d 631, 628 N.Y.S.2d 1, 651 N.E.2d 869 (1995).   Facial insufficiency is a nonwaivable jurisdictional defect and can be raised for the first time on appeal.   Matter of Michael M., 3 N.Y.3d 441, 788 N.Y.S.2d 299, 821 N.E.2d 537 (2004) and Matter of Michael C., 238 A.D.2d 680, 656 N.Y.S.2d 412 (3rd Dept.1997)).   Even after admission, the Court held that it did not waive the jurisdictional claim.  Matter of Whitney Z., 12 A.D.3d 971, 785 N.Y.S.2d 559 (3d Dept.2004).

 Additionally, Presentment Agency's argument that the certified records in this case are the statutory equivalent of sworn allegations of fact by virtue of the fact that they conform to CPLR § 4518 and that they constitute prima facie evidence of the information contained therein is contrary to statutes and case law.

The clear language in FCA sections 360.2 and 311.2(3) requires that nonhearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged against the Respondent's commission thereof.   In a petition for a violation, the petition must be verified and subscribed by the probation service or the appropriate presentment agency.  FCA § 360.2(2).   A petition shall be verified in accordance with the CPLR and shall conform to the provisions of section 311.2.  FCA § 311.1(4).  CPLR § 3020 defines verification as a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true.

The Court of Appeals in Matter of Neftali D., supra, has addressed the issue of verification of supporting depositions accompanying juvenile delinquency petitions and has held that “[a] verification attesting to the truth of the contents of a document on penalty of perjury is of the same effect as a testimonial oath, which at once alerts a witness to the moral duty to testify truthfully and establishes a legal basis for a perjury prosecution ․ This verification procedure is intended to assure a measure of reliability regarding the contents of the petition.”  P. 636, 628 N.Y.S.2d 1, 651 N.E.2d 869.   Likewise, the Court in Matter of Rodney J., 83 N.Y.2d 503, 507, 611 N.Y.S.2d 485, 633 N.E.2d 1089 (1994) has applied a stringent test when construing challenges to the facial sufficiency of a juvenile delinquency petition.   The Court determined that a certified but unverified ballistic's report annexed to the petition was insufficient because the person who certified it did not attest to any personal knowledge which would have established the nonhearsay nature of the document.   See, Matter of Todd Z., 295 A.D.2d 652, 743 N.Y.S.2d 190 (3d Dept.2002) where Respondent had violated probation by allegedly threatening an educational assistant at his school.   The court found that the factual portion of the petition was directly supported by the attached statement of the assistant who verified the truth of the affidavit's contents under penalty of perjury.   And, Matter of Steven DD., 243 A.D.2d 890, 663 N.Y.S.2d 330 (3rd Dept.1997) where the court held that the petition fails to comply with the mandate of FCA § 360.2 because there no supporting deposition or affidavit from either the appropriate school attendance official or the mental health counselor attached to the petition.

Likewise, contrary to Presentment Agency's reasoning, the Court does not find that the facts in Markim Q. are clearly distinguishable from the facts of this case.   In Markim Q., “the exhibit submitted in support of the allegation in the petition alleging that the Respondent was truant from school consisted of a printout from the New York City Public Schools of the Respondent's Individual Student Attendance Report for the 2003-2004 school year, a “Delegation of Authority” form delegating to the school's Records Secretary the authority to certify school records, and a certification form signed by the Records Secretary.   The certification form required the certifier to check a box to describe which of the Respondent's records was being certified, i.e., an incident report, an attendance record, or a cut record, for the 2003 school year.   None was checked.   The form also stated, in pertinent part, that this record was made in the regular course of business and it was the regular course of business to make such records at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”   The Court went on to say, “assuming that this certification was sufficient to satisfy the business record exception set forth in CPLR § 4518, Matter of Neftali D., supra, requires that these nonhearsay allegations be verified or attested to by an individual with knowledge of the facts.   Because the charge was not supported by sworn nonhearsay allegations, the petition was facially insufficient.”   See also, Matter of Darrell CC., 299 A.D.2d 757, 751 N.Y.S.2d 113 (3rd Dept.2002) and Matter of Nicholas RR., 290 A.D.2d 680, 735 N.Y.S.2d 828 (3d Dept.2002) where the Appellate Courts have held that the formal requirements of FCA § 360.2 including a verified petition incorporating nonhearsay allegations must be strictly complied with.  “Sufficiency requirements set forth in FCA §§ 311.2 and 360.1 are not simply technical pleading requirements but are designed to ensure substantive due process protection to an alleged juvenile delinquent who can be arrested and deprived of liberty based on the petition.”  Matter of Neftali D., supra, P. 635, 628 N.Y.S.2d 1, 651 N.E.2d 869.

Moreover, in this case, a close examination of the certified records does not reveal any specific language identifying the annexed documents as Respondent's school attendance records.   The language used by the guidance counselor states, “I hereby certify that the record attached is a full and complete record of the condition, act, transaction, occurrence or event of this institution concerning the Respondent.”   It does not mention an attendance record or a cumulative cut list.   However, even if the certification and delegation state with specificity that the record annexed is a school attendance record, nevertheless, according to the Second Department's ruling in Matter of Markim Q., supra, the record is not verified or attested to by an individual with knowledge of the facts.   The guidance counselor did not attest to her personal knowledge of Respondent's school attendance.   All that is attached is a one page photocopy of a computerized printout from Respondent's school with no further information as to who provided the information or as to the accuracy and reliability of said information.   The verification attesting to the truth of the contents is lacking.

 The Court finds that in the absence of a relevant decision from the First Department, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this Court pronounces a contrary rule.  People v. Shakur, 215 A.D.2d 184, 627 N.Y.S.2d 341 (1st Dept.1995);  Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918, 920 (2d Dept.1984);  Cuthbert S. v. Linda S., 161 Misc.2d 372, 613 N.Y.S.2d 801 (Fam.Ct. Kings Co.1994).   Therefore, the Court is compelled to follow the recent holding of the Second Department which outlines the jurisdictional requirements for the filing of the violation of probation petition.   The Court has reexamined the underpinnings of the violation of probation petition and finds, in the furtherance of justice, that the charge in the petition that Respondent failed to attend school regularly, was not supported by sworn nonhearsay allegations pursuant to FCA § 360.2(2) rendering the petition jurisdictionally defective and compelling its dismissal.

Respondent's contention that since the original probation order was scheduled to expire on June 9, 2005, and since dismissal of the truancy charge will result in Respondent being credited with the time the violation of probation petition has been pending, the Court has lost jurisdiction is without merit.   FCA § 360.2(4) provides “if a petition is filed under subdivision one, the period of probation as prescribed by section 353.2 shall be interrupted as of the date of the filing of the petition.   Such interruption shall continue until a final determination as to the petition has been made by the court pursuant to a hearing held in accordance with section 360.3.”   In effect, this section provides for the “tolling” of the probationary period when a violation petition has been filed and precludes the termination of the probationary period during the pendency of the petition.   Besharov and Sobie, supra, FCA § 360.3, P. 521.   Since the filing of the violation petition was on March 24, 2005, the probationary period was tolled effective said date.

Based on the foregoing, Respondent's motion is granted.   Since the matter is already adjourned to January 23, 2006, in the interest of justice, this order is stayed until said date in order to determine to whom to release the Respondent and to afford Presentment Agency the opportunity to seek appellate review.

The Office of Children and Family Services is to be notified to produce the Respondent for further proceedings on January 23, 2006.

ALMA CORDOVA, J.