The respondent, a boy of 15 at the time of the commission of the alleged offense, is charged with being a juvenile delinquent in that on January 22, 1968 he in the company of another minor named James Wing did take, steal and drive away a certain 1967 Plymouth automobile -- acts which if done by an adult would constitute the crime of unauthorized use of a vehicle in violation of section 165.05 of the Penal Law.
The only testimony adduced on behalf of the petitioner to prove the charge was that of the respondent's co-defendant, James Wing who recounted how on the evening of January 22, 1968 he and the respondent upon observing a car parked in a driveway and noticing that the keys were in it, got into the car and each took turns driving it about the City of Kingston until it was later abandoned. The witness testified that he did not know who owned the car and that neither he nor the respondent had permission from the owner to use the car. The respondent did not testify.
The respondent moves to dismiss the petition upon the grounds: (1) that the proof did not negate the possibility that the car did not belong to the witness or that he did not have permission from the owner of the vehicle to use it, and (2) the testimony of the respondent's accomplice, not being corroborated by any other evidence as tends to connect the respondent with the commission of the crime, he cannot be convicted. (Code Crim. Pro., § 399.)
The first ground urged for dismissal of the petition is without merit. The witness Wing testified that he did not know who the owner of the car was and that neither he nor the respondent obtained permission from the owner of the vehicle to use it. The holding of Matter of Diane S. (18 N.Y.2d 973), that section 1293-a of the old Penal Law is to be strictly construed and that "the statute does not apply to one who accepts a ride in an automobile, even knowing it to have been taken without the owner's consent, unless he was implicated or involved in the actual taking of the vehicle" has been changed by the enactment of the new Penal Law (L. 1965, ch. 1030).
Section 165.05 of the new Penal Law states that, "a person is guilty of unauthorized use of a vehicle when: 1. Knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know he does not have such consent." Independent proof that the respondent knew that he did not have the consent of the owner to use the vehicle is not required (People v. Crawford, 56 Misc. 2d 348, 349).
The second ground for the motion to dismiss squarely raises the question of the applicability of the Code of Criminal Procedure to proceedings in the Family Court for an adjudication of juvenile delinquency.
There can be no doubt that the framers of the legislation establishing the Family Court intended that the court should be a civil rather than a criminal court. The Report of the Joint Legislative Committee on Court Reorganization (Report No. 2, Jan. 30, 1962, p. 2; McKinney's Sess. Laws of New York, 1962, vol. 2, p. 3430) under the paragraph heading, "Question of criminal jurisdiction" reports that "The new constitutional amendment authorizes the Legislature to give to the Family Court extensive criminal jurisdiction. It does this by allowing the Legislature to confer on the Family Court jurisdiction over 'crimes and offenses by or against minors'. Whether, or to what extent, criminal jurisdiction should be given to the new court is a problem of great concern to the Committee.
"The Committee concluded that it would be unwise, at this time, to give the Family Court the extensive powers given the criminal courts under the Penal Law of the State of New York. This would also introduce the technical requirements of the Code of Criminal Procedure. In the Committee's view, while a due process of law should be used in the Family Court, criminal powers and procedures would be inconsistent with the proper development of the Family Court, during its formative period, as a special agency for the care and protection of the young and the preservation of the family.
"Accordingly, the proposed Family Court Act does not at this time include provisions for the conduct of any criminal trial in the new court."
Under the heading of juvenile delinquency the report continues (p. 6): "Early in the history of the juvenile court movement there was agreement that juvenile delinquency proceedings should be 'civil', not 'criminal'. This agreement was based on a sense of a child's exuberance and vitality and the stress of the early years of life. The restraints and disciplines of adulthood have not yet been established. The possibilities of change are seemingly great. And so the decision was made to avoid a criminal conviction for the young and to shape the law and provide a court to guide and supervise, rather than punish, children in trouble.
"The Committee adheres to that decision." (Report No. 2 of Joint Legislative Committee on Court Reorganization, 1962, p. 6; McKinney's Sess. Laws of New York 1962, vol. 2, pp. 3433-3434.)
In creating the Family Court the Legislature implemented this decision by declaring that no adjudication of juvenile delinquency may be denominated a conviction and that no person adjudicated a juvenile delinquent shall be denominated a criminal (Family Ct. Act, § 781); that no adjudication shall operate as a forfeiture of any right or privilege or disqualify any person from subsequently holding public office or receiving any license (§ 782); and the confidentiality of the proceedings is insured by providing that the record of the proceeding shall not be admissible in evidence against him in any other court (§ 783) and that police records relating to the arrest and disposition of a juvenile shall be withheld from public inspection (§ 784).
The reported decisions of the Family Court which have considered the problem are consistent with this philosophy and concept of the juvenile court in that they have held the Code of Criminal Procedure to be inapplicable to juvenile delinquency proceedings in the Family Court. In Matter of "Jones " (43 Misc. 2d 390) Judge Richards W. Hannah held that section 399 of the Code of Criminal Procedure which prohibits the conviction of a defendant upon the testimony of an accomplice unless corroborated by other evidence as tends to connect the defendant with the commission of the crime was inapplicable to the Family Court and that the common-law rule as to an accomplice must be applied. In Matter of "John Doe " (44 Misc. 2d 678, 683), Judge Hannah held that section 392 of the Code of Criminal Procedure which prohibits the conviction of anyone upon the unsworn testimony of a child under the age of 12 years unsupported by other evidence inapplicable to the Family Court. He "concluded that a finding can be made upon the unsworn testimony of a child of tender years without further corroboration". (See, also, Matter of Rooney, 48 Misc. 2d 890, 894.) For essentially the same reasons, i.e. inapplicability of the Code of Criminal Procedure to proceedings in the Family Court, I held in Matter of ...