Bernard C., Matter of

• Decision Date: 29 January 1996
• Citation: 640 N.Y.S.2d 962,168 Misc.2d 813
• Parties: In the Matter of BERNARD C., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 962

640 N.Y.S.2d 962

168 Misc.2d 813

In the Matter of BERNARD C., a Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, New York County.

Jan. 29, 1996.

Jeffrey A. Hoerter, New York City, for New York City Police Department.

Donna M. Dodds, New York City, for New York City Department of Probation.

Paul A. Crotty, Corporation Counsel of New York City (Peter Reinharz and Jennifer E. Liddy, of counsel), for petitioner.

Legal Aid Society, New York City (Jane M. Spinak, Carol Fegan and Martin M. Lucente, of counsel), for respondent.

MARY E. BEDNAR, Judge.

I

In this juvenile delinquency proceeding, the New York City Police Department, a non-party, has moved for an order quashing a subpoena duces tecum dated January 3, 1996, which directs the Department to produce, inter alia, "[a]ll documents concerning the ["Family Court"] Detective Squad, including, without limitation, documents concerning its actual or prospective activities, duties, authority, responsibility, purpose, functions, or procedures", as well as a subpoena duces tecum, also dated January 3, 1996, which is directed to Detective Bari Moody, which directs her to produce "[a]ll records, documents or papers in [her] possession or control concerning (1) Bernard C. and (2) all guidelines, procedures, reports or papers pertaining to the operation, goals, purposes and procedures of the Manhattan Family Court Detective Squad."

By petition filed on October 3, 1995, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Burglary in the Second Degree, Attempted Burglary in the Third Degree, Criminal Trespass in the Third Degree and Possession of Burglar's Tools.

At his initial appearance, the Presentment Agency served the respondent with a "Voluntary Disclosure Form" ("VDF"). The VDF gave respondent notice, in accordance with Family Court Act § 330.2(2), that on September 19, 1995, respondent made a statement to Detective Bari Moody of the "Family Court Detective Squad" in the "Family Ct. Detective Squad Room", and that the Presentment Agency intends to use that statement at the fact-finding hearing. A copy of respondent's written statement is appended to the VDF.

On November 1, 1995, respondent filed an omnibus motion seeking, inter alia, a Huntley hearing (see, Fam.Ct. Act § 330.2; Criminal Procedure Law § 710.20[3] ); and a Wade hearing (see, Fam.Ct. Act § 330.2; Criminal Procedure Law § 710.20[6] ). By order dated December 11, 1995, I directed that Wade and Huntley hearings be conducted.

The basis for respondent's request for the issuance of the subpoenas duces tecum, and the Police Department's motion to quash those subpoenas, supported by the Presentment Agency, is set forth within the motion papers. Summarized briefly, respondent alleges that on September 19, 1995, he arrived at the New York County Family Court in accordance with the directions of a Family Court appearance ticket issued by the arresting officer. After an interview with a Probation Officer, the Probation Officer directed them to proceed to the office of Police Detective Bari Moody, who is assigned to the "Family Court Detective Squad". After allegedly advising the respondent and his mother of his Miranda rights, respondent gave a statement to the Detective which he contends is an involuntary statement. Respondent also alleges that the "Family Court Detective Squad" took advantage of the his required presence in the Family Court building to meet with the Probation Department to conduct an interrogation designed to elicit incriminating statements. Respondent contends that these activities by the "Family Court Detective Squad" are a pattern or practice followed by the Police Department, and that the practice is inherently deceptive. Accordingly, there is a need for disclosure of the Police Department's records relating to the creation, functions, and procedures of the "Family Court Detective Squad", as well as for any police records which relate to respondent's interaction with members of the Detective Squad.

The Presentment Agency concedes that Detective Moody interrogated the respondent on September 19, 1995. However, the Presentment Agency denies that there is any connection between the Probation Department and the New York City Police Department. Therefore, there is no basis for disclosure of Police Department records relating to the "Family Court Detective Squad", nor respondent's interactions with members of that Detective Squad.

II

Before addressing the motions, it is necessary to consider the unique process which governs the period of time from the arrest of an alleged juvenile delinquent until the Presentment Agency files a juvenile delinquency petition, as well as the role played by various governmental agencies.

Pursuant to Family Court Act § 305.2(2), a police officer or peace officer "may take a child under the age of sixteen into custody without a warrant in cases in which he may arrest a person for a crime under article one hundred forty of the criminal procedure law".

After taking a child into custody, the officer has an obligation to make every reasonable effort to notify the child's parent, custodian, or person legally responsible for the child's care, that the child has been taken into custody (Fam.Ct. Act § 305.2[3], [4]; see, People v. Bonaparte, 130 A.D.2d 673, 674, 515 N.Y.S.2d 599, lv. denied 70 N.Y.2d 703, 519 N.Y.S.2d 1037, 513 N.E.2d 714; People v. Salaam, 187 A.D.2d 363, 590 N.Y.S.2d 195, aff'd 83 N.Y.2d 51, 607 N.Y.S.2d 899, 629 N.E.2d 371). After making every reasonable effort to give the parental notice required by Family Court Act § 305.2(3), the officer has three options. The officer may release the child to the custody of his parent, custodian, or other person legally responsible for his care, upon the issuance of a Family Court appearance ticket to the child and the person to whom the child is released (Fam.Ct. Act § 305.2[4][a]; see, Fam.Ct. Act § 307.1; Matter of Jennifer M., 125 A.D.2d 830, 831, 509 N.Y.S.2d 935; Matter of Claude E., 124 Misc.2d 261, 263, 476 N.Y.S.2d 462) ¹; or the officer may immediately take the child directly to the Family Court located in the county where the crime occurred (Fam.Ct. Act § 305.2[4][b], "unless the officer determines that it is necessary to question the child, in which case he may take the child to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the child, to the child's residence and there question him for a reasonable period of time" (Id.; see, 22 NYCRR § 205.20); or the officer may take the child to a certified juvenile detention facility.

Where, as here, the child has been released to a parent or custodian upon a Family Court appearance ticket ², the child is to be directed to appear at a designated probation service on a specified return date (Fam.Ct. Act § 307.1[1].

The role of the probation service, or in New York City, the New York City Department of Probation, during the post-arrest, pre-petition period is set forth in Family Court Act § 308.1, 22 NYCRR §§ 205.22; 205.23, and 9 NYCRR part 354.

Family Court Act § 308.1(1) provides that "rules of court shall authorize and determine the circumstances under which the probation service may confer with any person seeking to have a juvenile delinquency petition filed, the potential respondent and other interested persons concerning the advisability of requesting that a petition be filed". Pursuant to 22 NYCRR § 205.22(a), the Probation Department shall conduct preliminary conferences with any person seeking to have a juvenile delinquency petition filed, the potential respondent, and other interested persons, including the complainant or victim, on the day that those persons appear at the Probation Department. The purpose of this mandatory preliminary conference is to permit probation to ascertain "the advisability of requesting that a juvenile delinquency petition be filed and in order to gather information needed for a determination of the suitability of the case for adjustment" (22 NYCRR 205.22[a]; see, 9 NYCRR § 354.1[c] ).

With specified exceptions, not relevant here (see, Fam.Ct. Act § 308.1[3], [4] ), the Probation Department is authorized to "adjust" cases prior to the filing of a juvenile delinquency petition (Fam.Ct. Act § 308.1[2]. Although the term "adjustment" is "not defined statutorily" (Sobie, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Judiciary Law, Family Court Act § 308.1, at 320), "adjustment generally means the informal consensual resolution of a case under probation services auspices" (Id.; see, Matter of Aaron J., 80 N.Y.2d 402, 406, 590 N.Y.S.2d 843, 605 N.E.2d 330 [adjustment is a "nonadversarial dispute resolution mechanism"]; see also, 9 NYCRR § 354.1[e] ).

At the preliminary conference, probation is required to advise each participant that he or she has the right to participate in the adjustment process (22 NYCRR § 205.22[d][1]; that probation cannot compel any person to appear at any conference (Fam.Ct. Act § 308.1[11]; 22 NYCRR § 205.22[d][2] ) that the victim is entitled to have access to the Presentment Agency at any time to request that a juvenile delinquency petition be filed (Fam.Ct. Act § 308.1[8]; 22 NYCRR § 205.22[d][3] ); that the adjustment process may continue for up to two months, with a possible extension for an additional two months (Fam.Ct. Act § 308.1[9]; 22 NYCRR § 205.22[d][4] ); that statements made to probation are subject to the confidentiality provisions of Family Court Act § 308.1(6) and § 308.1(7) (22 NYCRR § 205.22[d][5]; and that if the adjustment process is commenced but not successfully completed, the participants will be notified of that fact and that probation will refer the case to the Presentment Agency (22 NYCRR § 205.22[d][6].

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