In re Jermaine G.
Michael A. Cardozo, Corporation Counsel, New York City (Barry P. Schwartz and Deborah A. Brenner of counsel), for appellant.
Steven Banks, New York City (Tamara A. Steckler and Daniel Greenbaum of counsel), for respondent.
OPINION OF THE COURT
RITTER, J.P.
The presentment agency filed a petition pursuant to
“Jermaine is my cousin. On the last day that Jermaine lived in the apartment with my family, Jermaine put his pee pee (indicating penis) in my mouth. Jermaine put his pee pee inside of my boom boom (indiсating buttocks). It hurt when Jermaine did this to me. My mom walked into the room and Jermaine ran inside his bedroom.
“Jermaine did this to me many times, definitely more than two times since he moved into our apartment.”
The alleged victim‘s statement did not recite that any false statements therein were punishable as a misdemeanor or otherwise. Further, the jurat does not indicate that the statement was “sworn to.” Rather, it reads, “Said to before me this 9th day of August, 2004.”
“Jermaine G[.] is my nephew. Jermaine came to live with me at the above address in May 2004. Shortly after Jermaine came to live with me in May, I walked into the living room (in the evening) and observed [my son] with his head on Jeramaine‘s [sic] lap. When I walked into the rоom [my son] jumped up.
“On July 26, 2004 I walked into the living room and I observed [my son] with his shorts and underpants down with his penis exposed. I observed [my son] laying on the couch pulling up his shorts. I observed Jermaine‘s underwear on the couch next to where [my son] was laying. I went into Jermaine‘s bedroоm and observed Jermaine pulling up his shorts.
“I asked [my son] what happened. [My son] told me in sum and substance ‘Jermaine told me to turn round and he pulled my pants down. Jermaine kissed me on the back of my neck and put his pee pee in my boom boom.’ ‘Pee-pee’ is thе word [my son] uses for penis and ‘boom boom’ is the word he uses for buttocks. [My son] stated in sum and substance ‘Jermaine does this to me all of the time.‘”
After written and oral confessions by Jermaine G. were suppressed, he moved to dismiss the petition. He argued that the petition was facially insufficient because it was not supported by sworn nonhearsay allegations of fact sufficient to establish every element of the offenses charged, to wit: The alleged victim‘s statement, although sufficient, was not sworn to, and the mother‘s statemеnt, although sworn to, did not establish every element of the offenses charged.
In opposition, the presentment agency argued that evidence set forth in the supporting depositions, if presented at a criminal trial, would be legally sufficient to prove guilt beyond a reasonable doubt because the unsworn testimony of the child victim was corroborated by the sworn testimony of the mother, whose testimony tended to establish the crimes charged and that the respondent committed them (see People v Groff, 71 NY2d 101, 109 [1987]). The presentment agency argued that it would be an absurd result to require the allegations of a juvenile delin
The Family Court granted the Lаw Guardian‘s motion and dismissed the petition as facially insufficient. The court noted that the child victim‘s statement was not sworn and determined that the mother‘s sworn statement did not establish each and every element of the crimes set forth in the petition. We reverse аnd reinstate the petition.
A juvenile delinquency petition is sufficient on its face when it substantially conforms to the requirements as to content prescribed in
“2. the allegations of the factual part of the petition, together with those of any supporting deрositions which may accompany it, provide reasonable cause to believe that the respondent committed the crime or crimes charged; and
“3. non-hearsay allegations of the factual part of the petition or of any suppоrting depositions establish, if true, every element of each crime charged and the respondent‘s commission thereof.” (
Family Ct Act § 311.2 .)
Although not required by the express language of statute, the Court of Appeals has held that the nonhearsay factual allegations must bе sworn to satisfy the facial sufficiency requirement of the
“The sufficiency requirements set forth in
Family Court Act § 311.2 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. Like a criminal information, 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 theFamily Court Act .” (Matter of Neftali D., supra at 634-635 [citations omitted].)
The Court continued:
“A sworn recital that the factual allegations are ac
“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” (id. at 635-636). Such a verification “is intended to assure a measure of reliability regarding the contents of the petition” (id. at 636). “A witness understands the nature of an oath if he or she appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished” (
Applying this requirement where, as here, a child is the only party who can provide the required nonhearsay factual allegations in support of a juvenile delinquency petition, which is often the case in petitions involving allegations of sexual misconduct, presents distinct problems. First, a child under the age of nine is presumed incompetent to testify under oath and may not do so unless the court determines that the child understands the nature of an oаth (see
In Matter of Nelson R., the only supporting deposition setting forth nonhearsay factual allegations against the respondent juvenile was from a child less than 12 years old. (At the time Matter of Nelson R. was decided, this was below the age of presumed competence to give sworn testimony [see L 2000, ch 1, § 11;
“The failure of a petition to state affirmatively that a witness under 12 years of age has been judicially determined comрetent to swear to a supporting deposition does not render the petition facially insufficient and therefore does not mandate dismissal. Respondent‘s focus on the age of the complaining witness here, to the exclusion of all other factors, is misplaced. Although age is a relevant factor in determining the capacity of a person to make a statement under oath, the
Family Court Act does not contain any age limitations or requirements for a witness swearing to a supporting deposition. Herе, the notary‘s signature attested to the fact that the complainant had sworn to the truth of her deposition. Thus, there is no indication on the face of the petition that it was not properly sworn to (cf.,Family Ct Act § 343.1 [2] ). Since the petition here was facially valid, any dеfect in the petition relating to the capacity of the complaining witness to swear to
the supporting deposition was latent and dismissal at the outset of the proceedings was not required.” (Matter of Nelson R., supra at 362-363 [citations omitted].)
Thus, here, the petition would have been facially sufficiеnt under Matter of Nelson R. if the jurat on the alleged child victim‘s supporting deposition had read “sworn to” rather than “[s]aid to,” and/or had there been a recitation in the statement that false statements therein were punishable as a misdemeanor or otherwise. This is true regardless of whether it was ultimately determined that the alleged child victim was competent to give sworn testimony, and/or the fact that he could not have been charged criminally or even adjudicated a juvenile delinquent for making a false statement. However, in light оf the discussion, supra, we do not read Matter of Nelson R. as holding that there is a talismanic power to the form of the jurat or the recitations within a statement by a child witness such that the absence of the identified language is in all cases fatal to a finding that a juvenile delinquenсy petition is facially sufficient. Rather, the critical test identified by the case law is whether the petition and supporting documents provide assurance both that there is a valid and documented basis for subjecting a juvenile to prosecution, and that therе is a measure of reliability regarding the contents of a petition. Here, the formal, notarized written statement of the child victim, although not sworn, in conjunction with the mother‘s sworn statement corroborating various aspects of the child‘s allegations, was sufficiеnt to provide both a valid and documented basis for subjecting Jermaine G. to prosecution, and a measure of reliability regarding the contents of a petition. Thus, the petition should not have been dismissed as facially insufficient.
Finally, we note that dismissal of the рetition here, prior to a judicial determination of the allegations, would result in not only a grievous harm to the victim, but also, potentially to the accused as well; who, if the allegations are proved true, is in need of professional intervention and hеlp. “The overriding intent of the juvenile delinquency article is to empower [the] Family Court to intervene and positively impact the lives of troubled young people while protecting the public” (Matter of Robert J., 2 NY3d 339, 346 [2004]). We perceive no compelling countervailing benеfit to be obtained from dismissing the petition at this juncture that would warrant such a result.
Accordingly, the order should be reversed, on the law, without costs or disbursements, the motion to dismiss the petition as
KRAUSMAN, FLORIO and COVELLO, JJ., concur.
Ordered that the order is reversed, on the law, without costs or disbursements, the motion to dismiss the petition as facially insufficient is denied, and the petition is reinstated.
RITTER, J.P.
SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT