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1
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OPINION
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EXTRACTED KEY WORDS
SUPPORTING DEPOSITION FAMILY COURT RESPONDENT COMPLAINANT WITNESS SWORN AGE DISMISS ACT JUVENILE DELINQUENT JUDICIAL DETERMINATION COMPETENT FACTFINDING HEARING TRUTH MATTER APPELLANT PRIOR AFFIRM LIE JUDGE VOIR DIRE PRESENTMENT AGENCY APPELLATE DIVISION DEFECT ALLEGATIONS SWEARING FACIAL INSUFFICIENCY OATH INDICATING |
IN THE MATTER OF NELSON R., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT,
APPELLANT.
PRESENTMENT AGENCY, RESPONDENT.
90 N.Y.2d 359, 683 N.E.2d 329, 660 N.Y.S.2d 707 (1997).
July 1, 1997
1 No. 146 (1997 NY Int. 133)
Decided July 1, 1997
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Mitch Kessler, for appellant.
George Gutwirth, for respondent presentment agency.
Juvenile Rights Division of The Legal Aid Society, amicus curiae.
SMITH, J.:
This appeal raises the issue of whether a juvenile delinquency
petition is facially defective when the only supporting deposition
containing factual allegations against the respondent has been sworn
to by a child under 12 years without a prior judicial determination of
the child's competency as a witness. We affirm the order of the
Appellate Division because we conclude that any alleged defect caused
by the age of the person swearing to the supporting deposition is
latent, not facial, and therefore dismissal of the petition for facial
insufficiency is not required.
Respondent was adjudicated a juvenile delinquent after Family Court
found that he, while acting in concert with another, had committed
acts which, if committed by an adult, would have constituted the
crimes of sodomy in the first degree, sexual abuse in the first and
second degrees, unlawful imprisonment in the first and second degrees,
sexual misconduct and menacing. The petition alleged that respondent
and another person had restrained the complainant, subjected her to
sexual contact and forcibly engaged in deviate sexual intercourse. The
petition was accompanied by a supporting deposition sworn to by the
complainant in front of a Notary Public. The deposition also contained
the statement that "false statements made herein are punishable as a
class A misdemeanor or an act of juvenile delinquency" (cf., CPL
100.30(1)(d), (e)). The complainant's mother also submitted a sworn
statement stating complainant's birth date.
Prior to the factfinding hearing, respondent made a motion seeking
dismissal of the petition on the ground that the supporting deposition
SNIPPETS:
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