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Family Court Act § 311.2(3)

A Queens Drug Crime Lawyer said that, the appellant was arrested on July 13, 1989, in Jamaica, Queens. A petition filed the following day in Family Court, Queens County, alleged that he had committed acts that if engaged in by an adult would constitute criminal possession of a controlled substance in the third, fifth and seventh degrees. Attached to the petition was a supporting deposition in which Police Officer stated that he had observed appellant in possession of 33 vials of cocaine possession in crack form, and that “based upon his training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,” he believed the substance to be crack possession cocaine.

A Queens Criminal Lawyer said that, the same day that the petition was filed, appellant’s counsel moved that it be dismissed as legally insufficient since there was no laboratory report attached to the petition and Officer Henry’s account in the supporting deposition constituted hearsay. The court denied the request at that time. By omnibus motion and accompanying affirmation dated August 7, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency. The presentment agency appended to its answering affirmation a laboratory report dated July 18, 1989, which showed that the 33 vials seized from appellant contained 2,648 milligrams of crack cocaine possession. At a hearing before the Judge on August 15, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency, arguing that the presentment agency could not amend its petition by attaching the laboratory report because Family Court Act § 311.5 provides that a petition cannot be amended to cure legal insufficiency. The court reserved decision and finally denied appellant’s motion to dismiss the petition on September 13, 1989.

A hearing was held on September 20, 1989, to consider appellant’s motion to suppress. At this hearing, the Police Officer testified that on July 13, 1989, he was working as a backup on an undercover narcotics operation. At about 3:25 in the afternoon, he received a radio message from his partner, who reported that he had observed a young male engaged in a number of transactions which appeared to involve vials of crack cocaine. Approximately two minutes after receiving this message, the Officer spotted appellant, who fit the description radioed in by the other police officer. The Police Officer approached and detained the appellant. His partner drove by and confirmed that the appellant was the person he had seen earlier. The Police Officer then arrested appellant and recovered 33 vials of a substance that appeared to be crack possession of cocaine from the pocket of appellant’s jacket. Appellant testified in his own behalf and denied having sold crack cocaine prior to his arrest.

A Queens Criminal Lawyer said that, after the Judge denied the suppression motion, appellant subsequently admitted the third count of the petition–criminal possession of a controlled substance in the seventh degree–in full satisfaction of all the charges in the petition. By order of disposition dated November 17, 1989, the court ordered that he be placed in the custody of the New York State Division for Youth for a period of up to 12 months.

A Queens Drug Crime Lawyer said that, on appeal to the Appellate Division, counsel for appellant argued that the delinquency petition should have been dismissed because it did not make out a prima facie case of drug crime possession. The Appellate Division affirmed the order of disposition, holding that because the deposition of the arresting officer was based on his own observations and on his unique knowledge as a member of a special narcotics unit, the deposition satisfied the requirements of Family Court Act § 311.2(3).

The issue in this case is whether this petition, taken together with its supporting deposition, was legally sufficient in the absence of a laboratory report identifying the substance seized as cocaine.

A petition originating a juvenile delinquency proceeding is a written accusation by an authorized presentment agency details the information that a petition must contain. For purposes of this appeal, the most important of these requirements is contained at section 311.1(3)(h), which states that a petition must include “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 appellant’s commission thereof with sufficient precision to clearly apprise the appellant of the conduct which is the subject of the accusation.” Family Court Act § 311.2 states that a petition is facially sufficient when it “substantially conforms” to the requirements of section 311.1, when “the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the appellant committed the crime or crimes charged,” and when “non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the appellant’s commission thereof.”

The phrasing of these statutes makes it clear that a juvenile delinquency petition may in actuality consist of two separate parts: the formal petition itself, which must conform to the requirements of Family Court Act § 311.1; and any supporting depositions that may be attached to and filed with the formal petition. Thus, where one or more supporting depositions accompany a petition, the petition and the depositions together must satisfy the facial sufficiency requirements of the Family Court Act. In this case, the petition and the Officer’s supporting deposition between them must have (1) provided reasonable cause to believe that defendant committed the crimes with which he was charged, and (2) contained non-hearsay allegations that established, if true, every element of the three crimes charged and the appellant’s commission of those three crimes.

The appellant focuses his argument on the second of these requirements and contends that Officer Henry’s opinion as to the content of the vials is legally insufficient because it does not by itself establish the existence of a controlled substance, which is an element of the crimes charged in the petition. A petition is “the sole instrument for the commencement, prosecution and adjudication of the juvenile delinquency proceeding. In this, the petition is very similar to a criminal information, which is governed by the Criminal Procedure Law, not the Family Court Act, but which, like a Family Court petition, “may serve as a basis both for the commencement of a criminal action and for the prosecution thereof” CPL 100.10[1], and must contain “non-hearsay allegations that establish, if true, every element of the offense charged and the defendant’s commission thereof”.

This Court has noted the similarity between the two instruments and has looked to the law governing the sufficiency of information in considering challenges to the sufficiency of juvenile delinquency petitions.

The presentment agency’s argument misapprehends the two-part nature of the Family Court petition, however. Family Court Act § 311.2 clearly contemplates, as noted above, that supporting depositions may be filed in addition to petitions and that the sufficiency of the petition is to be measured by the factual allegations contained not only in the petition itself but also in any supporting depositions that may be attached to it. While no definition of the term “supporting deposition” is contained in the Family Court Act, such a definition is contained at CPL 100.20, which provides that “a supporting deposition is a written instrument containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” Although Family Court Act § 303.1(1) provides that “the provisions of the criminal procedure law shall not apply to proceedings under this article unless the applicability of such provisions are specifically prescribed by this act,” we believe that this section of the CPL is nonetheless instructive here in that supporting depositions serve the same function in Family Court petitions as they do in information’s, simplified information, misdemeanor complaints and felony complaints: they supplement the factual allegations contained in the petition and tend to support the charges. In fact, the heading at the top of the supporting deposition form used in this case indicates that it conforms to CPL 100.20.

In this case, the supporting deposition contained a personal statement by a police officer with direct knowledge of the crime committed that supplemented the allegations in the petition. The statement of the officer, in that it was based on his own knowledge and observations, was by nature evidentiary. Indeed, it is difficult to conceive of a situation where a deposition containing personal observations of this kind would not be evidentiary. Thus, we agree with the appellant that the restriction on the evidentiary content of the petition necessarily relates only to the petition itself and not to any supporting depositions that are appended to it. At the same time, however, because the statute clearly provides that the legal sufficiency of the petition is measured by the factual allegations contained both in the petition itself and in the supporting depositions, if any, we conclude that the restriction on the evidentiary content of Family Court petitions does not undermine the appellant’s argument that the petition and supporting depositions together must establish a prima facie marijuana case.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

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