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Court Discusses Handling of Deposition in Felony Delinquency Proceeding



This opinion follows the oral decision and order of the Court rendered on the record. This designated felony delinquency proceeding was commenced on January 4, 1991 by the District Attorney’s Office pursuant to Article 3 of the Family Court Act (“FCA”), charging Respondent with committing acts, which if committed by an adult, would constitute sexual abuse in the first degree, sodomy in the first degree and endangering the welfare of a child. Prior to the commencement of the fact-finding hearing, Respondent moved to dismiss the petition, claiming that the petition was jurisdictionally defective pursuant to FCA § 311.2. Respondent asserts that the supporting deposition of the five year old complainant was not properly sworn, subscribed or verified in accordance with Criminal Procedure Law (“CPL”) §§ 100.30 and 60.20.

The accusatory instrument in this proceeding consisted of the designated felony act petition, a supporting deposition signed and sworn to by the five year old child complainant, and a second deposition sworn to by an employee of the District Attorney’s Office, “duly qualified as a Notary Public.” This second deposition was in boilerplate form, stating that the employee interviewed the child and prior to notarizing the complainant’s supporting deposition, he found the complainant capable of taking an oath.

Respondent contends that the petition should be dismissed because it was not properly sworn, subscribed or verified in accordance with CPL § 100.30, in that a five year old child cannot subscribe and verify a supporting deposition to a petition without a legally sufficient voir dire being conducted. Further, respondent argues that if the deponent is less than 12 years of age, as in the instant case, this triggers the additional requirement of CPL 60.20(2) which requires the People to rebut the presumption that a child under age 12 cannot testify under oath unless the court is satisfied that the child understands the nature of the oath.

Respondent relies on various criminal court decisions which interpret both CPL § 100.30 and § 60.20(2) to require the People to demonstrate that a minor is competent to be sworn before a supporting deposition may be verified in a criminal proceeding. In opposition to the motion, the People assert that the FCA does not mandate a unique procedure for verification of a petition by a child. The verification procedure for Family Court delinquency proceedings is outlined in FCA § 311.1(4), which incorporates by reference the verification provisions of the Civil Practice Law and Rules (“CPLR”). The People argue that legal sufficiency of a juvenile delinquency petition is governed solely by FCA §§ 311.1 and 311.2, in that the petition is the sole instrument for the prosecution and adjudication of a juvenile delinquency proceeding. Further, the People argue that inasmuch as the FCA sets forth no requirements for competency to sign a supporting deposition by a person under 12 years of age in delinquency proceedings, the Family Court is not bound by the criminal court rulings cited by respondent.

The issue in this case is whether a supporting deposition of a five year old complainant in a Family Court designated felony delinquency proceeding must be subscribed and verified in accordance with the CPL. The Court finds that the verification provisions of the FCA control and that the provisions of the CPL regarding verification and subscription of a criminal court complaint or information are not applicable in a juvenile delinquency proceeding.

Respondent’s contention that a delinquency petition is legally insufficient if it is not properly verified in accordance with the CPL fails to distinguish between legal sufficiency of a petition and the requirement of formal verification of a supporting affidavit or deposition. FCA § 311.2 outlines the requirements of a legally sufficient petition in a delinquency proceeding, i.e., that it conform to § 311.1; that the allegations of the petition and supporting deposition(s) provide reasonable cause to believe the respondent committed the crime(s) charged; and that every element of each crime charged be supported by non-hearsay allegations.

In contrast, the verification procedures for Article 3 delinquency proceedings are outlined in FCA § 311.1(4), which provides: “A petition shall be verified in accordance with the civil practice law and rules and shall conform to the provisions of Section 311.2.” Verification is 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 to be true. Article 30 of the CPLR does not include any express provisions for a child’s verification or affidavit.

FCA § 343.1 codifies a presumption that a child under the age of 12 is presumptively ineligible to be sworn in a criminal court proceeding to give oral testimony, unless found qualified to be sworn by the court after a voir dire of the child. FCA 343.1 is co-extensive with the provisions of CPL § 60.20 regarding swear ability and capacity of a child to testify under oath in open court, and does not address a child’s ability to verify a petition.

The court held that the prosecutor was not required to file an affidavit concerning his voir dire of the child in order for the child’s deposition to be properly verified. The court stated that because the Family Court may dispense with the formality of placing a child under oath and may take a child’s unsworn testimony in open court (FCA § 152(b)) “a fortiori, the minor can sign a supporting deposition. Since the court can receive a minor’s unsworn statement in evidence it can treat the child’s purported deposition in this case as if it were an unsworn statement, even if a voir dire were required by CPL § 60.20 and § 100.40 as held in some of the criminal cases.”

The Court finds that the Respondent’s reliance on CPL § 100.30 and § 60.20, as well as the criminal court line of cases herein above cited, is misplaced. FCA § 303.1(1) states that “the provisions of the CPL shall not apply to proceedings under this article unless the applicability of such provisions are specifically prescribed by this act.” FCA § 303.1(2) provides that the family court “may, however, consider judicial interpretations of appropriate provisions of the CPL to the extent that such interpretations may assist the court in interpreting similar provisions of this article.”

The court may interpret similar provisions, subject to the rules of statutory construction, where the CPL does not conflict with the expressed terms of the FCA. However, under the general rules of statutory construction, “where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.”

There is a clear distinction between CPL § 100.30 and FCA § 311.1 with respect to subscription and verification of a petition. The legislature in fashioning the FCA specifically intended that a dichotomy be maintained between delinquency and criminal court proceedings in the area of verification and subscription. CPL § 100.30 specifically outlines the procedures for verification of an information, misdemeanor complaint, felony complaint, supporting deposition and proof of service in criminal proceedings exclusively. Respondent’s argument that the child’s out-of-court verification in this juvenile delinquency proceeding is inherently suspect and requires the additional safeguard of a voir dire is not supported by the FCA or case law.

The verification of the within petition by the five year old complainant in this matter satisfies the verification provision of FCA § 311.1(4). Furthermore, the court notes that the preliminary voir dire conducted by Mr. Stovall and his affidavit annexed to the petition were not required as a matter of law.

In view of the foregoing, the court held that the respondent’s motion to dismiss the within juvenile delinquency petition is denied.

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