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Matter of Richard S.
Legal Aid Society (Monica Drinane and Oscar Finkel of counsel), Law Guardian. Michael A. Cardozo, Corporation Counsel, New York City (Jodi Lev of counsel), presentment agency. OPINION OF THE COURT
FRAN L. LUBOW, J. The presentment agency filed the instant juvenile Cons Laws of NY, Book 11A, CPL 1.20, at 27-28 [emphasis added and citation omitted].) While case law has defined "commencement" of trial to be different points in the proceeding depending on the context in which the issue arises, none of these definitions of commencement relate to the time when jeopardy attaches. In fact, numerous courts have held that trial commences prior to the attachment of jeopardy. For example, within the context of CPL 710.40 (3), the provision that defines when a motion to suppress evidence shall be made and determined, the commencement of trial is deemed the start of jury selection. (People v Blowe, 130 AD2d 668 [2d Dept 1987].) The Second Department has also held that trial commences with the jury selection process. In Brackley v Donnelly (53 AD2d 849 [2d Dept 1976]), the Court determined that the trial commenced with the jury selection process, and therefore, the trial proceedings could only be terminated by declaring a mistrial, despite the fact that the defendant had not yet been placed in jeopardy (only 6 of 12 jurors were selected and sworn). (See also People v Dennis, 258 AD2d 255 [1st Dept 1999]; People v Albarez, 209 AD2d 186 [1st Dept 1994] [court properly declared mistrial before entire jury panel was selected and sworn, before jeopardy had attached]; People v Singh (190 AD2d 640 [1st Dept 1993] [jeopardy had not attached when Court declared mistrial before an entire jury panel was selected and sworn].) It is clear that speedy trial principles are separate and distinct from double jeopardy. In closing, this court makes the following observations. It would be absurd to create a rule that fact-finding does not commence with the taking of substantive unsworn evidence. To do so would force prosecutors to start trial with a sworn witness, regardless of whether that testimony is substantive, for the mere sake of complying with speedy trial requirements without necessarily affording the respondent any substantive due process. The Family Court Act and the Criminal Procedure Law specifically allow the taking of unsworn testimony. Unsworn testimony is frequently the gravamen of a case and may sustain a finding beyond a reasonable doubt with corroboration.
That being the case, the testimony of the unsworn witness is often the most logical and appropriate place to start the fact-finding hearing. This court declines to create a new substantive area of law in which the order of the presentation of evidence is dictated by speedy trial practice. This court holds that the trial commenced on day 45 when the complaining witness gave substantive unsworn testimony. The record reflects that the presentment agency completed the entire direct examination of the complaining witness, and that the case was adjourned for the respondent's attorney to conduct cross-examination. This testimony was more than sufficient to commence trial, particularly in light of numerous appellate court holdings that a presentment agency may commence a fact-finding hearing with "some" evidence. (Matter of Stephen H., 251 AD2d 664 [2d Dept 1998]; Matter of Shawn L., 234 AD2d 197 [1st Dept 1996]; Matter of Leonard G., 209 AD2d 263 [1st Dept 1994].) In any event, because this court does recognize and respect the literal and philosophical import of Family Court Act § 340.1 (Matter of Frank C., 70 NY2d 408 [1987]), and its progeny, it was careful to obtain speedy trial waivers from the respondent so that no dismissal is warranted herein. Wherefore, the motion to dismiss is denied. [1] CPL 30.20 (1) explicitly states that "After a criminal action is commenced, the defendant is entitled to a speedy trial." This is the only true speedy trial provision in the Criminal Procedure Law, and must be distinguished from CPL 30.30. Although CPL 30.30 is labeled "speedy trial" it does not govern the time within which trial must commence but only deals with the subject of when the People must be ready for trial. The fact that the People are ready to proceed does not mean the trial must commence: various other factors might result in postreadiness delay. The Legislature enacted CPL 30.30 to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and it does not address problems involving speedy trial rights or due process in a constitutional sense. (See People v Sinistaj, 67 NY2d 236, 239 [1986].) [2] The unsworn testimony of a witness must be corroborated to sustain a conviction. The relevant portions of Family Court Act § 343.1 are identical to CPL 60.20, the analogous adult provision, with the sole exception that the "cut off" age in the Criminal Procedure Law is 9, compared to age 12 in the Family Court Act. Regarding the degree of corroboration required by CPL 60.20 to establish a prima facie case, the Court of Appeals has held that "the evidence is sufficient if the unsworn victim's testimony is corroborated by evidence tending to establish the crime and connecting defendant with its commission." (People v Groff, 71 NY2d 101, 104 [1987].) "[A]ll that is necessary is to connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the [witness] is telling the truth." (Id. at 110 [internal quotation marks omitted], quoting People v Daniels, 37 NY2d 624, 630 [1975].) This can be accomplished by circumstantial evidence. (People v St. John, 74 AD2d 85 [3d Dept 1980].) The court may look to facts that standing alone are insignificant, but that together are "so harmonized" that they have the tendency to furnish the necessary connection between the defendant and the crime. (People v Groff, 71 NY2d 101, 110 [1987].) The Family Court may consider and use these adult judicial rulings in interpreting Family Court Act § 343.1. (Family Ct Act § 303.1.)
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