In re Kevin B. , 128 A.D.2d 63 ( 1987 )

OPINION OF THE COURT

Sullivan, J.

In each of these two juvenile delinquency proceedings the presentment agency, the Corporation Counsel of the City of New York, appeals from the dismissal of the petition after opening statements, but before any witness was sworn. In each opening statement the Assistant Corporation Counsel indicated that an eyewitness police officer, but not the complainant, would testify to prove the acts charged. In dismissing, Family Court (the same Judge in each instance) held that the failure to call the complainant as a witness would be fatal to the presentment agency’s case. We find this to be error, since in each case the elements of the alleged offenses, including that of larcenous intent and lack of consent, could be proven beyond a reasonable doubt through the testimony of the eyewitness police officer, without the testimony of the victim. Accordingly, we reverse, reinstate the petitions and remand for further proceedings.

Respondent Kevin B. was charged with having committed acts which, if committed by an adult, would constitute the crimes of criminal mischief in the third degree (Penal Law § 145.05), attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.30 [1]) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05). After announcing his readiness to proceed with opening statements and a fact-finding hearing, the Assistant Corporation Counsel indicated that he would not present any evidence as to the value of the property involved. He therefore asked the court to consider the lesser included offenses of criminal possession of stolen property in the third degree and attempted petit larceny with respect to the charges of criminal mischief in the third degree and attempted grand larceny in the third degree, respectively.¹ He then described the testimony anticipated from his single witness. The officer, who had patrolled the particular neighborhood for several years and knew it for the frequency of car thefts committed therein, was on patrol around 12:50 on the morning in question, when he noticed two individuals, one of whom he recognized as Kevin B., looking into car windows. The two looked into a BMW, walked on, still looking into cars, and then returned to the BMW. While Kevin B. stood by, apparently as a lookout, the other, an adult, broke into the BMW and tried to remove a radio. Before he could do so, however, the officer arrested the two.

The Assistant Corporation Counsel informed the court that the car owner would not testify, but argued that direct evidence of ownership is not necessary to prove larcenous intent. The Law Guardian argued that on the basis of such proof the presentment agency’s case would fail for two reasons: the car owner is a necessary witness to establish lack of permission to enter the car and to remove its contents; and that without overt action on respondent’s part, the officer’s testimony could not establish that he acted in concert with the other person. The court considered the Law Guardian’s argument as a motion to dismiss and granted the same, apparently concluding that proof by direct evidence of the car’s ownership through the testimony of the complainant would be necessary.

Respondent Timothy L. was charged with having committed acts which, if committed by an adult, would constitute the crimes of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). In his opening, the Assistant Corporation Counsel stated that the complainant, who operates a store on Fordham Road in The Bronx, was sick and unable to come to court, but that an eyewitness police officer would testify that at the time in question he observed Timothy L. take an umbrella from a stand in the complainant’s store.

As the Assistant Corporation Counsel tried to summarize the anticipated testimony, the court interrupted, saying: "[Counsel], I will not hear you testify as to what the facts are * * * I have heard you on the law”. The Assistant Corporation Counsel argued that he would prove beyond a reasonable doubt each element of the two offenses charged since the officer’s testimony describing the incident and the surrounding circumstances would make it clear that Timothy L. did not own the umbrella, did not have permission or authority to take or possess it, and intended to steal it and to benefit himself or a person other than the owner. Direct proof of ownership was unnecessary, he argued, because ownership may be reasonably inferred from the surrounding circumstances. Similarly, he argued, lack of permission could be reasonably inferred from the officer’s testimony. The court, sua sponte, dismissed the petition due to the absence of a complaining witness, stating: "There is no complaining witness * * * no confrontation here of an accuser”.

Initially, both respondents claim that these appeals must be dismissed because the presentment agency is statutorily barred from appealing an order dismissing a delinquency petition after the commencement of a fact-finding hearing. In New York, the right to appeal is based solely upon express statutory or constitutional authorization. (Friedman v State of New York, 24 NY2d 528, 535.) Family Court Act § 365.1 (2) limits appeals in delinquency proceedings by a presentment agency to those from:

"(a) an order dismissing a petition prior to the commencement of a fact-finding hearing; or

"(b) an order of disposition, but only upon the ground that such order was invalid as a matter of law; or

"(c) an order suppressing evidence entered before the commencement of the fact-finding hearing”.

Respondents, noting that Family Court Act § 342.1 provides that a fact-finding hearing commences with the opening statements, argue that these appeals are barred by section 365.1 (2) (a), upon which the Corporation Counsel relies for jurisdiction, since the orders of dismissal were entered in each instance after both parties had delivered opening statements. Thus, they claim, the dismissals came after the commencement of the fact-finding hearing. While statutory provisions defining the right to appeal must be strictly construed (People v Garofalo, 71 AD2d 782; see, Brownstein v County of Westchester, 51 AD2d 792), we find these orders of dismissal to be appealable as of right.²

If section 365.1 (2) is to be read literally, then the Family Court Act failed to provide for an appeal by the presentment agency from an order of dismissal entered after the commencement of a fact-finding hearing but before a witness is even sworn to testify. As the Practice Commentary to section 365.1 of the Family Court Act makes clear (Sobie, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 365.1, at 584), however, the presentment agency’s right to appeal adverse decisions was limited, not arbitrarily, but rather to avoid conflict with double jeopardy principles, which (see, Breed v Jones, 421 US 519) are applicable to juvenile proceedings. Thus, for example, the Legislature, by enacting Family Court Act § 365.1 (2) (c), foreclosed dispositional order appeals seeking to increase the severity of a sanction. Such a procedure would, of course, offend double jeopardy precepts. (See, Matter of John P., 74 AD2d 403.) In delinquency proceedings an order of disposition, according to Family Court Act § 352.2, follows a dispositional hearing, i.e., it is an order, which, inter alia, conditionally discharges the respondent or places him in a facility upon a previous finding of delinquency.

In the case of an adult, however, jeopardy does not attach in a trial by the court without a jury until a witness is sworn. (CPL 40.30 [1] [b].) We are unaware of any reason why a different standard should apply in juvenile proceedings. Thus, the problem of double jeopardy does not arise here, where the court dismissed the delinquency petition after the close of * opening statements but before the presentment agency’s first witness was sworn. (See, People v Kurtz, 51 NY2d 380, 385-386 [better practice with respect to motion to dismiss indictment on the ground of inadequate opening statement is for motion to be made and disposed of, with an opportunity to cure, before trial proceeds, thereby avoiding the issue of double jeopardy].) Since the restrictions on a presentment agency’s right of appeal contained in Family Court Act § 365.1 (2) were intended to eliminate double jeopardy concerns, an appeal taken from an order of dismissal made at the close of opening statements is not prohibited. Thus, we conclude that neither section 365.1 (2) nor the Double Jeopardy Clauses of the Federal or State Constitutions bars this appeal, and thus, this court has jurisdiction to review the substantive issue.

The presentment agency has the burden of proving beyond a reasonable doubt each element of the offenses charged. Its proof may consist of direct or circumstantial evidence. Here, as shown by the Assistant Corporation Counsel, the proof in each case was to consist of both direct and circumstantial evidence. In determining whether guilt has been proved beyond a reasonable doubt, New York courts have applied a rigorous standard if the prosecution’s case depends entirely on circumstantial evidence. "[F]or guilt to be proven beyond a reasonable doubt the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude 'to a moral certainty’ every reasonable hypothesis of innocence.” (People v Benzinger, 36 NY2d 29, 32.) This stringent standard is not applied, however, where the prosecution’s proof is not solely circumstantial, particularly where the proof by circumstantial evidence relates to only one element, such as intent. (See, People v Barnes, 50 NY2d 375, 379-380; People v Licitra, 47 NY2d 554, 558-559; People v Von Werne, 41 NY2d 584, 589-590.) Of course, rarely, if ever, is intent proved by direct evidence. When the prosecution’s proof on intent is based on circumstantial evidence, the fact finder must decide " 'whether, considering the facts proved and the inferences that could reasonably be drawn therefrom * * * there was no reasonable doubt that the defendant’ intended to commit the crimes charged.” (People v Barnes, supra, 50 NY2d, at 381, quoting People v Castillo, 47 NY2d 270, 277.)

In Kevin B., the officer who observed the incident would testify that he saw respondent and another person walking up and down the street looking into car windows. Twice, they looked into a BMW. While respondent stood by watching, the other person broke into the BMW and tried to remove a radio. Before he could do so, however, the officer arrested respondent and his companion, whose demeanor and actions he would be able to describe. Thus, the officer’s testimony would have shown that respondent was no mere bystander and would provide direct evidence as to each element of the offenses charged except intent, ownership of the car and lack of consent to enter and remove its contents. His observations, however, would have clearly provided circumstantial evidence from which these remaining elements could be inferred beyond a reasonable doubt.

The first count of the petition, charging respondent with criminal mischief in the third degree, requires proof of four elements: that tangible property of another person was actually damaged; that the accused intentionally damaged the property; that the accused had no reasonable ground to believe he had such right; and that the property was worth more than $250. (Penal Law § 145.05.) Only the first three elements need be established to prove the lesser included offense of criminal mischief in the fourth degree. (Penal Law § 145.00.) The police officer’s testimony, as described in the opening statement, would provide direct and circumstantial evidence as to those three elements, and could form the basis of a fact finding on the first count.

The officer’s testimony would also provide direct and circumstantial evidence with respect to each element of attempted petit larceny (Penal Law §§ 110.00, 155.25), the lesser included offense under the second count. Respondent’s- larcenous intent could have been inferred from the events observed by the officer. (See, People v Von Werne, supra, 41 NY2d, at 589.) Similarly, the officer’s testimony could form the basis of a fact finding on the third count, unauthorized use of a vehicle in the third degree. The car owner’s lack of consent may be proved beyond a reasonable doubt by the officer’s observations of respondent and the other person, as they looked into various cars, returned to the BMW, broke into the car and attempted to take out a radio. (See, People v Borrero, 26 NY2d 430.)

The incident underlying Borrero (supra) is virtually indistinguishable from the incident in Kevin B. There, the Court of Appeals held that circumstantial evidence, even without the testimony of the car owners as to their ownership of the subject vehicles, established that the defendants possessed certain instruments with the intent to break into the automobiles without permission. "[T]he defendants’ lack of ownership may reasonably be inferred from the surrounding circumstances.” (Supra, at 436; see also, People v Shurn, 69 AD2d 64, 67 [fact finder may infer larcenous intent and fact of ownership from evidence other than testimony of owner].)

Similarly, in this case, respondent’s lack of ownership, the owner’s lack of consent and respondent’s intent may be reasonably inferred from the circumstances surrounding the incident. The officer’s testimony would lead a reasonable person, applying common human experience, to conclude that respondent committed criminal mischief, attempted to commit petit larceny, and used a vehicle without authorization. (See, People v Wachowicz, 22 NY2d 369, 372.)

Likewise, in Timothy L., the officer who observed the incident would testify that he saw respondent take an umbrella from the complainant’s store. The officer would also be able to describe respondent’s and the alleged victim’s demeanor and conduct during the incident. Thus, the officer’s testimony would provide direct evidence of asportation. His testimony would also present facts from which proof of the other elements of the two offenses could reasonably be inferred, including ownership, lack of consent and intent. Thus, the officer’s testimony, in sum, would have provided direct and circumstantial evidence from which respondent’s guilt could have been established beyond a reasonable doubt. The court, however, refused to allow the Assistant Corporation Counsel to summarize the evidence he expected to present in support of the petition. Its refusal was error since, as already noted, the Court of Appeals has made it clear that the trial court must afford the prosecutor the opportunity to correct any deficiency in the opening statement before granting a motion to dismiss. (People v Kurtz, supra, 51 NY2d, at 385.)

Finally, both respondents argue that the orders of dismissal should be affirmed since a remand would not serve any useful purpose. Kevin B. is already in court-ordered placement on an unrelated matter. Timothy L., who is now over 16 years of age, was placed on probation following a finding on an unrelated matter. That a respondent has been placed after a fact finding in another case is clearly not dispositive of the issue of whether the "needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 352.2 [2]) require placement in this particular case. Other relevant evidence may be produced during further proceedings on these petitions regarding the placement that most effectively serves respondent’s needs and best interests and, at the same time, protects the community. In considering this evidence, the Family Court may, of course, also take note of an existing placement. Merely because a respondent is already in placement, however, is an insufficient basis upon which to preclude a presentment agency from going forward on its petition.

Accordingly, the orders of Family Court (Mortimer Getzels, J.), entered November 21, 1985 and January 30, 1986, respectively, dismissing the petitions should be reversed, on the law, without costs or disbursements, the petitions reinstated and the matters remanded for further proceedings.

1 . The Assistant Corporation Counsel undoubtedly intended to ask the court to consider criminal mischief in the fourth degree (Penal Law § 145.00), rather than criminal possession of stolen property, as the lesser included offense of criminal mischief in the third degree.

2 . Leave to appeal from an order in a delinquency proceeding is available only to a respondent. Family Court Act § 365.2, entitled, "Appeal by permission”, provides: "An appeal may be taken by the respondent, in the discretion of the appropriate appellate division, from any other order under this article.”