Barry M., Matter of

• Decision Date: 29 March 1978
• Citation: 403 N.Y.S.2d 979,93 Misc.2d 882
• Parties: In the Matter of * BARRY M., a person alleged to be a juvenile delinquent, Respondent. Family Court, Queens County
• Court: New York City Court

Page 979

403 N.Y.S.2d 979

93 Misc.2d 882

In the Matter of ^* BARRY M., a person alleged to be a juvenile delinquent, Respondent Family Court, Queens County.

March 29, 1978.

Herbert J. Leifer, Asst. Dist. Atty., for petitioner.

Joseph C. Maiolo, Richmond Hill, for respondent.

DECISION and ORDER

RICHARD D. HUTTNER, Judge:

Barry M. is a respondent in a juvenile delinquency proceeding wherein he is charged with Murder in the Second Degree. His brother, age 16, was called upon to testify by the Assistant District Attorney at the fact finding proceeding. During an investigation, the police obtained statements purporting to show that the witness was apparently an accomplice to the respondent. To date, no charges were brought against this witness. During the probable cause hearing, the witness' testimony was detrimental to respondent's case.

At the fact finding hearing the witness invoked his Fifth Amendment privilege. It was apparent that the witness' testimony was crucial to petitioner's case. Accordingly, the Assistant District Attorney asked the court to grant immunity under CPL 50.30.

Is the Family Court empowered to grant immunity in accordance with CPL 50.30?

I believe the answer to be in the affirmative.

CPL 50.30 states:

"In any criminal proceeding (emphasis added) other than a grand jury proceeding, the court is a competent authority to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so."

Whether a juvenile delinquency proceeding is a "criminal" or "civil" requires a brief digression into the history of the juvenile justice system.

Indisputably, treatment of the juvenile offender has never been made synonymous with adult criminal treatment. Our enlightened society cannot and should not make such an equation in the face of what everyday experience and our behavioral sciences teaches us. There are reasons youths rebel, both psychological and socio-economical. Historically, modern jurisprudence has always been sanguine in its hope that rehabilitation can ameliorate an errant youth into a productive member of society. It is this optimistic philosophy that pervades the Family Court Act.

But there is an emotional side to society also. The victim suffers no less from the youthful hand than from the hands of a hardened criminal. He cries for vengeance, for vindication, for protection. Herein lies the enigma. How is an equilibrium achieved between rehabilitation and understanding of the Juvenile Delinquent on the one hand, and society's need for protection and punishment of wrongdoers on the other?

It is this very effort to attain this delicate balance that constitutes a vast portion of the history of our juvenile justice system.

An excellent example of society's reluctance to equate juvenile crime with adult crime is the legislature's innovative approach with respect to the nomenclature used in section 711 of the Family Court Act. "Petitioner" instead of complainant "petition" instead of accusatory instrument, "respondent" instead of defendant. McKinney's Family Court Act commentaries section 711, Besharov p. 549.

But the differentiation between our views of juvenile and non-juvenile crime was seen to be too broad a chasm. The constitutional rights of juveniles were disregarded under the beneficent philosophy that a juvenile delinquency proceeding wherein the commission of criminal acts were being litigated was "civil" in nature. What was intended for the benefit of the juvenile offender that is, denominating the proceeding as "civil" enured to the detriment of the accused. He was being denied elemental constitutional rights. The lofty purpose of our juvenile justice system was backfiring into the very faces of the children sought to be protected.

The first erosion of the concept that the juvenile proceeding was "civil" came about in an effort to protect the juvenile and afford him the same constitutional guarantees and standards of fairness and due process as are afforded adult criminal defendants. In re: Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. The Court's action recognized the respondent in a juvenile delinquency proceeding indeed found himself in a "criminal" proceeding. Observing this, the United States Supreme Court held the juvenile entitled to the same quantum of proof to sustain conviction in a juvenile delinquency proceeding as the quantum needed in an adult criminal proceeding, "beyond a reasonable doubt" rather than by a "preponderance of the evidence". Accordingly, Section 744 of the Family Court Act was amended. In re: Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.

Despite the legislature's magnanimous ideal that the juvenile delinquency proceeding was an informal, protective, civil type proceeding, the concept simply was unworkable. As annunciated in Gault, supra, 387 U.S. p. 49, 87 S.Ct. p. 1455:

. . . "In the first place, juvenile proceedings to determine 'delinquency' which may lead to commitment to a state institution, must be regarded as 'criminal' for purposes of the privilege against self incrimination." Clearly, whenever the issue of self incrimination is raised at a delinquency hearing the nature of that proceeding ((as in the instant case) italics mine) must be deemed "criminal" in character.

The delinquency proceeding was a hybrid, somewhat criminal yet somewhat civil. A vague formula was announced by the United States Supreme Court. The criminal procedure statutes should be used when "appropriate". Mc Keiver v. Penn, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, In re: Winship, supra. The criminal adjective law is to be employed only when the essentials of due process and fair treatment are assured. McKinney's Family Court Act, supra, commentaries P. 551.

The passage of the Juvenile Justice Reform Act of 1976 clearly states in unequivocal terms a newly expressed societal interest "protection of the community" even at the expense of the youth's incarceration in jail. Society had its fill. Its protection had to be assured, it could no longer tolerate the anti-social acts of the juvenile offender. It is beyond peradventure, the "civil" nature of the delinquency proceeding was in extremis. An inroad has been forged, clearly pointing to the theory of "let the punishment fit the crime" "an eye for an eye," etc. There can be no doubt when a juvenile faces the prospect of incarceration outside the community in a jail-like setting, the proceeding wherein this possibility becomes a reality is "criminal".

In the landmark case of Matter of Gregory W., 19 N.Y.2d 55, 62, 277 N.Y.S.2d 675, 679, 224 N.E.2d 102, 105, the Court clearly held that in view of the possible loss of personal freedom delinquency proceedings "are at the very least quasi-criminal in nature."

It is now settled law that juvenile delinquency proceedings are quasi-criminal as evidenced by a plethora of opinions, some of which are:

Matter of Pinkard, 28 A.D.2d 34, 36, 280 N.Y.S.2d 959, 960; People ex rel. Schinitsky (Kenneth D. v. Cohen), 34 A.D.2d 1020, 1021, 312 N.Y.S.2d 1011; People ex rel. Arthur F. v. Hill, 36 A.D.2d 42, 319 N.Y.S.2d 961; Matter of Aaron D., 30 A.D.2d 183, 290 N.Y.S.2d 935; Matter of Fonesca v. Judges, Family Court, 59 Misc.2d 492, 299 N.Y.S.2d 493; Matter of Walsh, 59 Misc.2d 917, 300 N.Y.S.2d 859; Matter of Edwin R., 60 Misc.2d 355, 303 N.Y.S.2d 406; Matter of Rust, 53 Misc.2d 51, 278 N.Y.S.2d 333; Matter of Knox, 53 Misc.2d 889, 280 N.Y.S.2d 65; Matter of Dell, 56 Misc.2d 1017, 290 N.Y.S.2d 287.

The frustration of our failure to ameliorate juvenile crime was eloquently stated in the opinion of Judge Elwyn in Matter of Lang, 60 Misc.2d 155, 301 N.Y.S.2d 136.

". . . juvenile courts have been pointedly reminded by their failure to achieve the exalted ideals envisaged by their planners . . . Whatever circumvention of constitutional rights and due process could be rationalized from the 'civil' label applied to juvenile delinquency proceedings has been completely swept away by Supreme Court decisions in Gault ". . . . "the concept of these proceedings as 'civil' . . . is dead."

But the cases have not gone so far as to permit the blanket use of the CPL in juvenile delinquency proceedings. Our Court of Appeals held in Matter of D. (Daniel), 27 N.Y.2d 90, 95, 313 N.Y.S.2d 704, 707, 261 N.E.2d 627, 630, that the applicability of the CPL to juvenile delinquency proceeding must be decided on a case by case basis.

In Matter of Winship, supra at 397 U.S. pp. 359, 366, 90 S.Ct. 1068, it was held that the juvenile is entitled to the same protection given adults on criminal proceedings unless such constitutional protection would risk destruction to the beneficent aspects of the juvenile process.

In view of the foregoing holdings, this proceeding to determine whether a juvenile committed murder is perforce a quasi criminal proceeding. As such, CPL 50.30 is appropriate and should be utilized. The issue, however, remains despite having a "criminal proceeding" before it, is the Family Court, being of limited jurisdiction, empowered to grant immunity?

Of necessity the answer is yes.

The Family Court has exclusive original jurisdiction over juvenile delinquency proceedings Family Court Act 713. It is solely and exclusively within the province of this Court that the interests of salvaging our youths from a career of crime as well as protecting our community from their acts are reposed. (Family Court Act Section 711).

The pain, suffering and grief sustained by the victims and family of juvenile crime is not mitigated because the perpetrator is of tender years. Nor is it mitigated because his sense of reason and morality have not yet matured. Section 711 of the Family Court Act recognizes by its explicit mandate that society which is victimized by the errant juvenile is entitled to no less consideration and protection than the juvenile himself.

The...