In re Eddie M.
Opinion of the Court
On November 16, 1983, at approximately 2:50 p.m., Police Officer John Goggin and his partner, while on uniform motor patrol in Brooklyn, spotted the 15-year-old appellant holding what appeared to be a gun. Appellant, with his head facing
Petitioner subsequently commenced the instant proceeding, seeking to have appellant adjudged a juvenile delinquent. After the court determined that there was probable cause to believe that appellant had committed the crimes alleged in the 11 counts in the petition, it conducted a fact-finding hearing.
When petitioner attempted to introduce the gun which Goggin had recovered from appellant, appellant objected on the ground that petitioner had not given him notice of its intention to offer the gun as evidence at the hearing. After determining that appellant was not contesting the lawfulness of Goggin’s actions in recovering the gun, the court overruled the objection and admitted the gun into evidence. Based upon the uncontroverted testimony of Goggin, the sole witness to testify at the hearing, the court sustained 5 of the 11 counts in the petition, i.e., criminal possession of a weapon in the third degree, obstructing governmental administration, resisting arrest, menacing and unlawful possession of a weapon by a person under 16, adjudged him to be a juvenile delinquent, and placed him in the custody of the New York State Division for Youth for a period of one year. At no point in the proceeding has appellant urged that the gun ought to have been suppressed.
Appellant’s primary contention on appeal is that “[a]ll evidence relating to the gun must be precluded” because petitioner did not give him advance, written notice of its intention to offer the gun as evidence at the fact-finding hearing or demonstrate good cause for its failure to do so. We disagree.
Courts have had occasion to pass upon the analogous notice provision applicable to criminal proceedings (CPL 710.30), and their interpretations thereof may be considered to assist in the interpretation of the notice provision with which we are now concerned (see, Family Ct Act § 303.1 [2]; see also, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 330.2, p 411; Besharov, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, 1984-1985 Pocket Part, Family Ct Act § 330.2, p 35). With this in mind, it is apparent that the purpose of the subject notice provision is to give an alleged juvenile delinquent time to prepare his case for challenging the lawfulness of a seizure of tangible evidence (cf. People v Briggs, 38 NY2d 319, 322-323; People v Greer, 42 NY2d 170, 178; People v Ross, 21 NY2d 258, 262).
In view of the underlying purpose of the statutory notice provision, it is of especial significance that appellant has not demonstrated that he suffered prejudice as a result of petitioner’s failure to comply with its prescription, as he never requested a suppression hearing and, “[ijndeed, even on this appeal * * * does not seek to move this court by urging” the unlawfulness of Goggin’s seizure of the gun (People v Ross, supra, p 262). In fact, the sole basis for appellant’s objection to the introduction of the gun was that he had not been served with proper notice of petitioner’s intention to do so as prescribed by statute, despite the court’s repeated inquiries as to whether appellant was contending that the seizure of the gun was unlawful. Since there was no question as to the lawfulness of the seizure, appellant cannot successfully urge that petitioner’s failure to serve him with a notice of intention to offer the gun mandated its preclusion (cf. People v Greer, supra, p 178, affg 49 AD2d 297; People v Pray, 99 AD2d 915, 916; People v Balschweit, 91 AD2d 1127).
Were we inclined to hold to the contrary, we would nonetheless conclude from the circumstances herein that appellant had
We have considered appellant’s other contentions and find them to be either unpreserved or lacking in merit. Titone, J. P., Lazer, Niehoff and Rubin, JJ., concur.
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