122 Misc. 2d 836 | N.Y. Fam. Ct. | 1984
OPINION OF THE COURT
Upon reargument of this motion, the People urge upon this court the sufficiency of this petition, supported primarily by the respondent’s statement admitting the act. In doing so, the People liken this petition to an indictment and cite the authorities upholding the legal sufficiency of indictments supported by confessions which are prima facie competent.
Respondent opposes this and refers to the statutory scheme as to the nature of the petition and the legal sufficiency thereof. (Family Ct Act, § 311.1, subd 4; § 311.2.) He requests the court to dismiss the petition as legally insufficient for failing to meet the statutory mandate as to a nonhearsay supporting deposition to sustain the factual allegations of the petition. Moreover, he requests that his statement be stricken from the petition as unproperly annexed thereto, and from the file generally.
Under the new juvenile code, made effective July 1, 1983, the provisions of the CPL are not applicable to Family Court proceedings unless specifically provided therefor. However, under subdivision 2 of section 303.1 of the Family Court Act “A court may, however, consider judicial interpretations of appropriate provisions of the criminal procedure law to the extent that such interpretations may assist the court in interpreting similar provi
In Matter of Anthony S. (73 Misc 2d 187,192), this court, speaking through Judge Gartenstein, stated: “The mandate that supporting depositions be filed where charges are on information and belief, is built into the [CPL] in CPL 100.40. The comment of the commission staff amply demonstrates the reason for requiring depositions supporting a ‘legally sufficient case’: ‘Relaxation of that rule would allow trial or prosecution of a defendant in a superior court upon a serious charge when the people have never previously shown a prima facie or legally sufficient case against him in any court or even in any sworn instrument.’ ”
In this proceeding, this petition is not supported by any sworn statement of a nonhearsay nature. The statement of the respondent is not sworn to as to qualify it as a supporting deposition. This court holds this to be true, notwithstanding the argument posited as to indictments supported
Accordingly, this court finds the supporting affidavit legally insufficient and adheres to its prior decision herein.
With respect to the respondent’s request to strike the admission from the petition, said motion is granted. Under the statutory scheme only nonhearsay supporting depositions are properly appended to the allegations set forth in the petition. This respondent’s admission does not fall within the meaning of a “supporting deposition” and should be removed from the petition. Motion to strike the respondent’s admission from the petition only is granted. As to the file in general the motion is denied, this court having accepted the ruling in Matter of E. C. (122 Misc 2d 232) as to voluntary disclosure.