Onondaga County Attorney, Petitioner-Appellant. v. <<

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

Matter of ETHAN S., Respondent-Respondent. Onondaga County Attorney, Petitioner-Appellant.

Decided: April 28, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ. Anthony P. Rivizzigno, County Attorney, Syracuse (Melissa A. Cielock-Del Guercio of Counsel), for Petitioner-Appellant. Mark A. Schaeber, Law Guardian, Liverpool, for Respondent-Respondent.

 On appeal from an order dismissing the petition alleging that respondent is a juvenile delinquent, petitioner contends that the allegation of delinquency is sufficiently supported by the nonhearsay statements of the corespondents and thus that the petition is facially sufficient.   We reject that contention.  Family Court Act § 311.2 provides that a juvenile delinquency petition is facially sufficient when “non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof.”   The juvenile delinquency petition “is the sole instrument for the commencement, prosecution and adjudication of the juvenile delinquency proceeding and, therefore, must comport with the statutory jurisdictional requisites of the Family Court Act” (Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869).   Courts “have applied a stringent test when construing challenges to the facial sufficiency of a juvenile delinquency petition to assure that there is a valid and documented basis for subjecting the juvenile to prosecution” (id. at 636, 628 N.Y.S.2d 1, 651 N.E.2d 869).

 Family Court Act § 343.2 requires corroboration of accomplice testimony in juvenile delinquency proceedings, just as CPL 60.22 requires corroboration of accomplice testimony in criminal proceedings.   The accomplice corroboration requirement also applies to grand jury proceedings (see CPL 190.65[1][a];  People v. Cilento, 2 N.Y.2d 55, 62-63, 156 N.Y.S.2d 673, 138 N.E.2d 137;  People v. Danzy, 104 A.D.2d 949, 952, 480 N.Y.S.2d 567). Although there is no statutory equivalent of CPL 190.65(1)(a) for juvenile delinquency petitions, it has been held that “the requisite corroboration of [accomplice testimony] must be alleged in a Family Court delinquency petition or the supporting depositions since these documents represent the only formal statement of charges against a respondent and should be based on competent legal evidence sufficient to establish, if believed, that the respondent committed the acts charged” (Matter of Rodney J., 108 A.D.2d 307, 313, 489 N.Y.S.2d 160;  see also Matter of Daniel McC., 250 A.D.2d 615, 672 N.Y.S.2d 401, lv. denied 92 N.Y.2d 807, 678 N.Y.S.2d 592, 700 N.E.2d 1228;  Matter of Deon L., 173 A.D.2d 469, 470, 570 N.Y.S.2d 998;  see generally Matter of Angel A., 92 N.Y.2d 430, 433-434, 681 N.Y.S.2d 787, 704 N.E.2d 554).   Because the statements of the corespondents, i.e., respondent's accomplices, were not corroborated, the petition was properly dismissed as facially insufficient.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: