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In Matter of Philip M., 179 AD2d 1034 (4th Dept., 1992), where the petition incorrectly cited to a nonexistent subdivision of the Penal Law, the court there held that "the petition sufficiently identified the crime that respondent was accused of committing and contained requisite factual allegations.
Summary of this case from In Matter of Maurice F.Opinion
January 31, 1992
Appeal from the Erie County Family Court, LoRusso, J.
Present — Denman, P.J., Pine, Balio, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted, petition reinstated and matter remitted to Erie County Family Court for further proceedings, in accordance with the following Memorandum: The petition in this juvenile delinquency proceeding alleged that respondent committed acts which, if committed by an adult, would constitute the crime of aggravated sexual abuse in the second degree, in violation of "Penal Law § 130.67 (3)". That subdivision does not exist in the Penal Law. Following the close of proof at the fact-finding hearing, petitioner's attorney moved to amend the petition pursuant to Family Court Act § 311.5 to cite the correct subdivision of Penal Law § 130.67. Respondent neither opposed the motion nor cross-moved to dismiss the petition because of the defect. Family Court denied the motion and sua sponte dismissed the petition, apparently on the ground that the defect in the petition was jurisdictional in nature. We reverse.
Family Court Act § 303.1 (2) authorizes Family Court to "consider judicial interpretations of appropriate provisions of the criminal procedure law" in interpreting similar provisions of the Family Court Act (see, Matter of Eric F., 126 A.D.2d 39, 42). Family Court Act § 311.1 (3) (e) provides that the petition must contain "the precise crime or crimes charged". Further, pursuant to Family Court Act § 311.1 (3) (h), the petition must contain "a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof with sufficient precision to clearly apprise the respondent of the conduct which is the subject of the accusation".
Those provisions are analogous to the accusatory and factual parts of a criminal information (CPL 100.15, [3]) and an indictment (CPL 200.50, [7]). The Court of Appeals has held that "[i]t is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime" (People v. Hall, 48 N.Y.2d 927, rearg denied 49 N.Y.2d 918). The requirement serves the dual purpose of providing notice to enable a defendant to prepare for trial and of distinguishing the offense sufficiently to prevent reprosecution (see, People v McDermott, 69 N.Y.2d 889, 890). Further, "an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime. For example, an indictment will be jurisdictionally defective if the acts it accuses defendant of performing simply do not constitute a crime * * * or if it fails to allege that a defendant committed acts constituting every material element of the crime charged" (People v. Iannone, 45 N.Y.2d 589, 600).
Here, the petition sufficiently identified the crime that respondent was accused of committing and contained the requisite factual allegations. The petition provided respondent with sufficient notice to enable him to prepare for trial. We note in that regard that respondent's counsel presented a vigorous defense at the fact-finding hearing. Accordingly, we conclude that the defect in the petition was not jurisdictional and that the court erred in denying petitioner's motion to amend the petition (see, Family Ct Act § 311.5). Additionally, Family Court erred in admitting evidence concerning the victim's prior sexual conduct (see, CPL 60.42; People v. Mandel, 48 N.Y.2d 952, cert denied and appeal dismissed 446 U.S. 949; People v Westfall, 95 A.D.2d 581, 583). We, therefore, reverse the order, grant the motion, reinstate the petition and remit the matter to Family Court for further proceedings pursuant to Family Court Act § 345.1.