IN RE: TASHAWN MM. (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Tompkins County (John C. Rowley, J.), entered August 22, 2022, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.

This juvenile delinquency proceeding against respondent (born in 2004) was commenced in Tioga County in March 2022, alleging that respondent had committed acts in November 2021 that, if committed by an adult, would constitute the crimes of burglary in the second degree and criminal possession of stolen property in the third degree.¹  Thereafter, in satisfaction of the petition, respondent admitted to acts which, if committed by an adult, would constitute the lesser offense of criminal possession of stolen property in the fourth degree.  Family Court (Keene, J.) issued an order finding that respondent had engaged in that conduct, as well as an order transferring the proceeding to Tompkins County for disposition.  Following a dispositional hearing in Tompkins County, Family Court (Rowley, J.) placed respondent in the custody of the Office of Children and Family Services for a period of 12 months.  Respondent appeals from the dispositional order.  We stayed that order pending appeal (2022 N.Y. Slip Op. 72551[U] [3d Dept. 2022]), and now reverse.

Respondent initially challenges the facial sufficiency of the petition, a jurisdictional defect that “is nonwaivable and ․ is reviewable for the first time upon appeal” (Matter of Michael M., 3 N.Y.3d 441, 443, 788 N.Y.S.2d 299, 821 N.E.2d 537 [2004];  see Matter of Alexander CC., 191 A.D.3d 1113, 1114, 142 N.Y.S.3d 223 [3d Dept. 2021];  Matter of Jonathan YY., 134 A.D.3d 1344, 1345, 22 N.Y.S.3d 614 [3d Dept. 2015]).  Ordinarily, “[t]o be facially sufficient, a juvenile delinquency petition must contain non[ ]hearsay allegations establishing every element of each crime charged and the respondent's commission thereof” (Matter of Alexander CC., 191 A.D.3d at 1114, 142 N.Y.S.3d 223 [internal quotation marks, brackets and citations omitted];  see Family Ct Act § 311.2[3];  Matter of Evan U., 244 A.D.2d 691, 692, 664 N.Y.S.2d 189 [3d Dept. 1997]).  Respondent focuses upon the allegation in the petition that he committed acts constituting criminal possession of stolen property in the third degree and observes, correctly, that there were no nonhearsay allegations showing that the value of the stolen property he knowingly possessed was over $3,000 as required (see Penal Law § 165.50).  Petitioner points out in response that respondent admitted to commiting acts constituting the offense of criminal possession of stolen property in the fourth degree arising from his possession of “one or more [stolen] firearms, rifles and shotguns” without any value component (Penal Law § 165.45[4]), a lesser offense than either criminal possession of stolen property in the third degree or burglary in the second degree, but not a lesser included offense of either (see People v. Wilborn, 164 A.D.3d 530, 531, 83 N.Y.S.3d 98 [2d Dept. 2018], lv denied 32 N.Y.3d 1069, 89 N.Y.S.3d 123, 113 N.E.3d 957 [2018];  People v. Morson, 67 A.D.3d 1026, 1027, 889 N.Y.S.2d 644 [2d Dept. 2009]).  Petitioner argues that, under those limited circumstances, the petition was jurisdictionally adequate so long as it sufficiently alleged that respondent had committed acts constituting one of the more serious crimes charged.  We agree.

“Because a juvenile delinquency petition is similar to a criminal information, the law governing the sufficiency of informations may be examined in considering a challenge to the sufficiency of a juvenile delinquency petition” (Matter of Kerwin C., 207 A.D.2d 890, 891, 616 N.Y.S.2d 754 [2d Dept. 1994] [citation omitted], lv denied 84 N.Y.2d 812, 622 N.Y.S.2d 914, 647 N.E.2d 120 [1995];  see Family Ct Act § 303.1[2];  Matter of Jahron S., 79 N.Y.2d 632, 636–637, 584 N.Y.S.2d 748, 595 N.E.2d 823 [1992];  Matter of Rodney J., 108 A.D.2d 307, 310–311, 489 N.Y.S.2d 160 [1st Dept. 1985]).  In that regard, a criminal defendant charged in an information is permitted “to plead to a lesser offense which does not qualify as a lesser included offense and which otherwise may have no factual support in the accusatory instrument” (People v. Mason, 62 Misc.3d 75, 76, 92 N.Y.S.3d 531 [App.Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019];  see People v. Keizer, 100 N.Y.2d 114, 119, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003];  People v. Chan, 36 Misc.3d 44, 46, 950 N.Y.S.2d 223 [Sup. Ct., App. Term, 2d, 11th & 13th Jud. Dists. 2012]).  He or she remains free to challenge the facial sufficiency of the information if he or she does so;  however, “to be successful in [that] challenge, all of the counts charged in the accusatory instrument would have to be found facially insufficient” (People v. Pierre, 70 Misc.3d 69, 71, 136 N.Y.S.3d 835 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 121, 167 N.E.3d 1256 [2021];  see CPL 170.30[1];  170.35[1][a];  People v. Chan, 36 Misc.3d at 46, 950 N.Y.S.2d 223;  compare People v. Thiam, 34 N.Y.3d 1040, 1041, 115 N.Y.S.3d 745, 139 N.E.3d 366 [2019]).  The reason for this rule is that, “since the uncharged lesser offense to which the defendant pleaded guilty is unrelated to the counts charged, i.e., it is not statutorily derived from the counts actually charged in the accusatory instrument, the accusatory instrument is jurisdictionally sufficient and can support the guilty plea to the uncharged lesser offense so long as it contains at least one facially sufficient higher grade charge” (People v. Mason, 62 Misc.3d at 77–78, 92 N.Y.S.3d 531 [internal citations omitted];  see e.g. People v. Keizer, 100 N.Y.2d at 118–119, 760 N.Y.S.2d 720, 790 N.E.2d 1149).  Applying that rule here, the petition provided nonhearsay support for its allegations that respondent entered into the dwelling of the named victim with the intent to unlawfully commit larceny and then did remove property, which was facially sufficient to allege that respondent had committed acts constituting burglary in the second degree (see Penal Law § 140.25[2];  People v. Place, 50 A.D.3d 1313, 1314, 855 N.Y.S.2d 745 [3d Dept. 2008], lv denied 11 N.Y.3d 740, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008]).  The petition was therefore jurisdictionally adequate to support respondent's admission to acts constituting the lesser offense of criminal possession of stolen property in the fourth degree.

Nevertheless, as petitioner concedes, the allocution in which respondent admitted to those acts was fatally defective because Family Court (Keene, J.) failed to comply with the requirements of Family Ct Act § 321.3(1).  At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home ․ for a period of time.”  Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” (Matter of Lee S., 58 A.D.3d 1088, 1089, 872 N.Y.S.2d 730 [3d Dept. 2009] [internal quotation marks, brackets and citation omitted];  see Family Ct Act § 321.3[1][c];  Matter of Christian VV., 211 A.D.3d 1378, 1379–1380, 180 N.Y.S.3d 679 [3d Dept. 2022];  Matter of Travis TT., 47 A.D.3d 1112, 1113, 849 N.Y.S.2d 712 [3d Dept. 2008]).  “Inasmuch as the provisions of Family Ct Act § 321.3(1) are mandatory and cannot be waived, the order must be reversed” (Matter of Robert OO., 34 A.D.3d 1074, 1075, 824 N.Y.S.2d 693 [3d Dept. 2006] [internal citations omitted];  see Matter of Kameron VV., 156 A.D.3d 1272, 1274, 68 N.Y.S.3d 210 [3d Dept. 2017]).

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court's decision.

FOOTNOTES

1.   Although respondent was an adult by the time this proceeding was commenced, Family Court retained jurisdiction to hear it because respondent was 17 years old at the time the underlying acts occurred and his “age ․ at the time the delinquent act allegedly was committed” controls (Family Ct Act § 302.1[2];  see Matter of Donald F., 97 A.D.2d 980, 980, 468 N.Y.S.2d 784 [4th Dept. 1983];  Matter of Dora P., 68 A.D.2d 719, 724–725, 418 N.Y.S.2d 597 [1st Dept. 1979]).

Egan Jr., J.

Garry, P.J., Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.