Atthis D., Matter of

Decision Date22 November 1994
Citation205 A.D.2d 263,618 N.Y.S.2d 904
PartiesIn the Matter of ATTHIS D., A Person Alleged to be a Juvenile Delinquent, Respondent-Respondent.
CourtNew York Supreme Court — Appellate Division

Kristin M. Helmers, New York City, of counsel (Pamela Seider Dolgow, on the brief, Paul A. Crotty, attorney) for petitioner-appellant presentment agency.

Salvatore C. Adamo, Belvidere, NJ, for respondent-respondent.



On April 4, 1993, respondent, who was then fourteen years old, was arrested in the 116th Street subway station after confessing to stabbing another youth. The police recovered a black knife with an 8 1/2-inch blade from respondent who was issued a desk appearance ticket with his mother guaranteeing his future appearance in court.

On May 11, 1993, the presentment agency filed a petition charging respondent with one count each of assault in the second and third degrees and criminal possession of a weapon in the fourth degree. On the date the petition was filed, respondent failed to appear and a warrant was issued for his arrest. Respondent was rearrested on June 4, 1993, in the Bronx, for an unrelated crime. He was issued a desk appearance ticket directing him to appear in the Bronx County Family Court on June 18, 1993. On that date, the Corporation Counsel determined that there was an outstanding warrant for respondent's arrest and, as a result, respondent was placed in detention and prepared for return to New York County.

The following Monday, June 21st, respondent made his initial appearance in New York County Family Court. After his law guardian entered a general denial, respondent was remanded and the matter set down for a fact-finding hearing on June 24, 1993. By notice of motion dated June 24, 1993, respondent sought, inter alia, dismissal of the petition pursuant to Family Court Act § 320.2(1) for failure of the presentment agency to commence the initial appearance within ten days of the filing of the petition. The presentment agency opposed and argued, inter alia, that the delay was the respondent's fault and that he had waived his objection by not raising the issue before the scheduled date of the fact-finding proceeding.

In granting respondent's motion, the Family Court found that the petitioner did not attempt to show good cause for the delay beyond ten days from the filing of the petition and, relying on Matter of Randy K., 77 N.Y.2d 398, 568 N.Y.S.2d 562, 570 N.E.2d 210, and Matter of Robert S., 192 A.D.2d 612, 596 N.Y.S.2d 148, held that, without a showing of good cause for the delay, dismissal of the juvenile delinquency petition is the appropriate remedy. We disagree.

The Family Court's reliance upon Matter of Robert S. (supra), which in turn relied exclusively upon Matter of Randy K., 77 N.Y.2d 398, 568 N.Y.S.2d 562, 570 N.E.2d 210, may have been appropriate at the time of its decision on June 29, 1993, in light of the then general understanding that Randy K. applied to all phases of a juvenile delinquency proceeding (see, e.g., Matter of Lakiesha Y., 195 A.D.2d 821, 822, 600 N.Y.S.2d 361 "the rationale underlying the Court of Appeals decisions [in Matter of Randy K., supra, 77 N.Y.2d at 404, 568 N.Y.S.2d 562, 570 N.E.2d 210, and Matter of Frank C., 70 N.Y.2d 408, 413-414, 522 N.Y.S.2d 89, 516 N.E.2d 1203] applies with equal force to the scheduling of a dispositional hearing [see, Matter of Christopher WW., 189 A.D.2d 411, 413-414, 596 N.Y.S.2d 199; Matter of Roshon P., 182 A.D.2d 346, 349, 588 N.Y.S.2d 614, lv. denied 80 N.Y.2d 762, 592 N.Y.S.2d 671, 607 N.E.2d 818]."; see also, Matter of Faruq F., 186 A.D.2d 799, 588 N.Y.S.2d 914; but see, Matter of David R., 150 A.D.2d 161, 540 N.Y.S.2d 780; Matter of Eddie M., 196 A.D.2d 25, 29, 607 N.Y.S.2d 682, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415, "[w]hile statutory reform would be most welcome, as urged by the dissenters in Matter of Randy K. [77 N.Y.2d 398, 568 N.Y.S.2d 562, 570 N.E.2d 210], we must in the interim rely upon the courts' reasonable interpretation of those legislative provisions that expressly permit adjournments for good cause shown and special circumstances.")

Indeed, in Matter of Jose R., 194 A.D.2d 310, 311, 598 N.Y.S.2d 243 [decided June 3, 1993], this Court had found that in view of the virtually identical statutory language governing the two procedures (fact-finding and dispositional), "we find no reasonable basis to distinguish them. It would clearly be inappropriate for this Court to read into section 350.1, provisions which the Court of Appeals specifically declined to read into section 340.1." (Supra, at 311, 598 N.Y.S.2d 243).

In reversing that determination, however, the Court of Appeals (per Bellacosa, J.) found, in Matter of Jose R., 83 N.Y.2d 388, 393-94, 610 N.Y.S.2d 937, 632 N.E.2d 1260):

A significant language distinction exists between the statutory framework involving the dispositional phase and fact finding. For Family Court Act § 310.2 fact finding, the Legislature enacted a specific right to speedy adjudication. The express terms of this provision limit this protection to the fact-finding adjudication. The section is silent with respect to the dispositional phase. Even assuming an overarching speedy dispositional phase right does pertain, the Family Court Act does not correspondingly direct dismissal relief for a lapse in that regard, after fact-finding adjudication has been completed. As a matter of note, too, Family Court Act § 332.1 does provide expressly for dismissal of petitions and does not include failure of speedy dispositional hearing as a ground. "Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' " (Matter of Alonzo M. v. New York City Dept. of Probation, 72 NY2d 662, 665, [536 N.Y.S.2d 26, 532 N.E.2d 1254], quoting Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208-209 [391 N.Y.S.2d 544, 359 N.E.2d 1338]; McKinney's Cons Laws of NY, Book 1, Statutes § 240).

The foregoing rationale, which distinguishes the dispositional phase of the proceeding from the fact-finding phase, applies with equal force to the initial appearance phase of the proceeding, which like the dispositional phase has no specific "speedy trial" provision.

Unlike Family Court Act § 310.2, which specifies that after a petition has been filed, the respondent is entitled to a speedy fact-finding hearing, Family Court Act § 320.2(1) provides in pertinent part: "If the respondent is not detained, the initial appearance shall be held as soon as practicable, and, absent good cause shown, within ten days after a petition is filed." 1 The procedures governing the initial appearance are governed by Family Court Act § 320.4 which is adapted from CPL 210.15 which sets out the basic standard procedure for arraignment (Preiser, Practice Commentaries to McKinney's Vol. 11A, CPL 210.15). Arraignment as defined by CPL 1.20(9) "means the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action" (emphasis added).

Although the Family Court Act's definition of the "initial appearance" (Family Court Act § 320.1), and its purpose ( § 320.4) does not include the above emphasized language, nevertheless, prior to the fact-finding or dispositional phases of a juvenile delinquency proceeding, the Family Court must first obtain in personam jurisdiction over the respondent which is accomplished, where the respondent has failed to appear on the appointed date and time and a bench warrant has been issued, upon the return of the respondent on the warrant, voluntarily or involuntarily (see, Matter of Kevin G., 159 Misc.2d 288, 291-293, 604 N.Y.S.2d 669).

As the Court of Appeals noted in Jose R. (supra), respondent there, as here, was not deprived of any right to a speedy disposition (in this case a speedy initial appearance) by the State, the Family Court or the presentment agency.

He deprived himself of it by his deliberate refusal to return to court as ordered. A speedy disposition was always available to him. All he had to do was show up on time and it should not fall to the Family Court to use scarce personnel to find him and drag him back each time. To countenance obdurate and conceded incorrigibility concerning the court's order after the court freed him upon his admission of guilt, by automatically dismissing the proceedings entirely, is not supported by our precedents or by applicable statutory construction.

(83 N.Y.2d, supra, at 395, 610 N.Y.S.2d 937, 632 N.E.2d 1260; see also, Matter of Carlos T., 187 A.D.2d 38, 41, 593 N.Y.S.2d 180, quoting Matter of Jerome S., 157 A.D.2d 286, 291, 556 N.Y.S.2d 115, "adjournment provisions of the statute [Family Ct. Act § 340.1] were intended to function as a means of forestalling unwarranted delay, not as a sword to be employed by a respondent who delays the proceeding and then subsequently argues that it must be summarily dismissed as a consequence."; ...

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8 cases
  • Dominic CC, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • December 28, 1995
    ... ... Therefore, the supporting deposition satisfies the sufficiency requirements as set forth in the Family Court Act (see, Family Ct.Act § 311.2). To accept respondent's argument would exalt form over substance (see generally, Matter of Atthis D., 205 A.D.2d 263, 268, 618 N.Y.S.2d 904, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327; Matter of Leo T., 87 A.D.2d 297, 299, 451 N.Y.S.2d 147) ...         We also reject the contention that respondent was denied a timely initial appearance. The petition was filed on ... ...
  • Robert O., Matter of
    • United States
    • New York Court of Appeals Court of Appeals
    • December 5, 1995
    ...if detention is warranted, and sets the dates for further proceedings (Family Ct. Act §§ 320.2, 320.4; see also, Matter of Atthis D., 205 A.D.2d 263, 267, 618 N.Y.S.2d 904). The presentment agency's failure to show good cause for the arraignment delay resulted in significant consequences--t......
  • Willie E, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • June 8, 1995 a speedy fact-finding hearing, Family Court Act § 320.2(1) [which deals with the initial appearance]" does not (Matter of Atthis D., 205 A.D.2d 263, 266, 618 N.Y.S.2d 904; see, Matter of Jose R., 83 N.Y.2d 388, 610 N.Y.S.2d 937, 632 N.E.2d 1260 [speedy trial requirements do not apply to ......
  • Julu LL, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • July 13, 1995
    ... ... dispositional hearings, ruled that dismissal should not be the remedy for the delay in a dispositional hearing where the delay is attributable solely to the juvenile's failure to appear (see, Matter of Jose R., 83 N.Y.2d 388, 393-395, 610 N.Y.S.2d 937, 632 N.E.2d 1260; see also, Matter of Atthis D., 205 A.D.2d 263, 618 N.Y.S.2d 904, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327). Here, the delay was not caused by respondent but by Family Court's failure to schedule the dispositional hearing within the 10 days required by Family Court Act § 350.1(1) ... ...
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