Opinion
April 11, 1983
In a juvenile delinquency proceeding, the appeal (by permission) is from an order of the Family Court, Rockland County (Weiner, J.), dated November 15, 1982, which denied the juvenile's motions to dismiss the petition and for discovery. Order modified by deleting the provision denying the motion for discovery and substituting a provision granting that motion. As so modified, order affirmed, without costs or disbursements. Respondent's time to comply with the granted discovery is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. Appellant should be permitted discovery of the scientific evidence despite his late application (see CPL 255.20, subd 1). We note that it was error for the Family Court to deny appellant's motion to dismiss the petition based solely on timeliness, without considering the merits of the motion. A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding (see People v Hall, 48 N.Y.2d 927; People v Case, 42 N.Y.2d 98; People v Harper, 37 N.Y.2d 96), and the rule must be applied to delinquency proceedings (cf. Matter of Isaac W., 89 A.D.2d 831). However, since the instant petition was sufficient (see People v Cohen, 52 N.Y.2d 584), it is unnecessary to remit for further consideration of the issue. Titone, J.P., Lazer, Weinstein and Boyers, JJ., concur.