IN RE: JASON R. (1997)

In this juvenile delinquency proceeding, respondent moves, inter alia, to preclude the offer of his prior inculpatory statement at the fact-finding hearing.   For the following reasons, the motion is granted.

 The present petition supersedes a prior petition which alleged the commission of the same criminal acts but was dismissed for facial insufficiency (see, e.g., Matter of Tommy C., 182 A.D.2d 312, 588 N.Y.S.2d 916 (2nd Dept.1992)).   The presentment agency does not dispute that, contrary to statutory requirements, notice of intent to offer respondent's statement was not served within 15 days of respondent's initial appearance on the original petition (see Family Court Act § 330.2(2);  CPL § 710.30);  due to an apparent oversight, notice was not served until well after the 15-day period had expired and then only after the second petition was filed.   The presentment agency's law office failure does not constitute “good cause” under the statute such that service of a late notice would be permitted.  People v. Briggs, 38 N.Y.2d 319, 342 N.E.2d 557, 379 N.Y.S.2d 779 (1975).   Even if lack of prejudice could be established, it would not be a substitute for the requirement that “good cause” be shown.  People v. O'Doherty, 70 N.Y.2d 479, 517 N.E.2d 213, 522 N.Y.S.2d 498 (1987).   Accordingly, in these circumstances, preclusion must be ordered.  Family Court Act § 330.2(8);  People v. Lopez, 84 N.Y.2d 425, 643 N.E.2d 501, 618 N.Y.S.2d 879 (1994);  People v. O'Doherty, supra;  People v. Bernier, 73 N.Y.2d 1006, 539 N.E.2d 588, 541 N.Y.S.2d 760 (1989);  People v. Miles, 163 A.D.2d 330, 557 N.Y.S.2d 163 (2nd Dept.1990).

 The presentment agency's claim that the 15-day period within which notice must be served should be measured from the date of respondent's initial appearance on the second petition is contrary to existing Court of Appeals precedent.   See People v. Capolongo, 85 N.Y.2d 151, 647 N.E.2d 1286, 623 N.Y.S.2d 778 (1995).   Indeed, the use of such a procedure would permit the presentment agency to “sidestep” the requirement of timely notice simply by withdrawing a juvenile delinquency petition, re-filing a new one, and then serving notice within 15 days of respondent's initial appearance on the second petition.  Id. at 165, 647 N.E.2d at 1293-1294, 623 N.Y.S.2d at 785-786.   The result would unfairly prejudice the respondent either (i) by requiring the respondent to proceed to a fact-finding hearing without timely notice and an adequate opportunity to investigate and challenge the voluntariness of his or her statements (see People v. Lopez, supra ) or (ii) by causing the respondent to seek a delay in the fact-finding hearing and possibly violating his or her right to a speedy trial (see Matter of Tommy C., supra (holding that speedy trial limitations also are measured from the date of the initial appearance on the original juvenile delinquency petition);  see also Matter of Frank C., 70 N.Y.2d 408, 516 N.E.2d 1203, 522 N.Y.S.2d 89 (1987)).

The remainder of respondent's motion-for court-ordered discovery-is decided as set forth in the accompanying order.

PHILIP C. SEGAL, Judge.