Crumb, Matter of

Decision Date29 January 1998
Citation668 N.Y.S.2d 1016,175 Misc.2d 466
Parties, 1998 N.Y. Slip Op. 98,069 In the Matter of Antoine CRUMB, a Person Alleged to be a Juvenile Delinquent, Respondent. 1
CourtNew York Family Court

Legal Aid Society, New York City (Jane Spinak and Brad Martin, of counsel), for respondent.

Jeffrey D. Friedlander, Acting Corporation Counsel of New York City (Lori Freudenberger, of counsel), for petitioner.

MARY E. BEDNAR, Judge.

Respondent has moved for dismissal of this juvenile delinquency petition which alleges that he has committed acts which, were he an adult, would constitute the crimes of Petit Larceny, Criminal Possession of Stolen Property in the Fifth Degree, Possession of Burglar's Tools, and Criminal Possession of an Anti-Security Item, on the ground that he has not been provided with a speedy fact-finding hearing (see, Fam.Ct.Act §§ 310.2; 340.1).

A hearing upon respondent's motion was conducted before me on January 13, 1998. Two witnesses testified at the hearing: Andrew Scholz, a paralegal employed by the Presentment Agency, the New York City Law Department; as well as Felicia Crumb, the mother of the respondent, Antoine Crumb.

Based upon the record of this proceeding, including the testimony adduced at the hearing on January 13, 1997, I make the following findings of fact and conclusions of law.

This juvenile delinquency proceeding was commenced by the filing of a petition on September 26, 1997. On that date, respondent and his mother, Felicia Crumb, appeared in court and respondent's initial appearance was conducted (see, Fam.Ct.Act §§ 320.1; 320.2; 320.4). At the conclusion of the initial appearance, respondent was paroled (see, Fam.Ct.Act § 320.5[1] ), and the proceeding was adjourned until November 5, 1997. On November 5, 1997, respondent did not appear in court, a warrant was issued to compel his appearance (see, Fam.Ct.Act § 312.2[1] ) 2, and the case was adjourned until December 5, 1997. 3

On December 5, 1997, an Assistant Corporation Counsel appeared, and she submitted a written report pursuant to Family Court Act § 312.2(2), setting forth the efforts made to locate respondent since the issuance of the warrant. This report, which was admitted into evidence at the hearing (see, Fam.Ct.Act § 340.1[7] ), states that after the warrant was issued, "[t]he Presentment Agency made its files available to the New York City Police Department Warrant Squad for inspection and possible leads concerning the [r]espondent's whereabouts". No date is given for when the Presentment Agency provided its file to the Warrant Squad. The report further states that on December 2, 1997, Andrew Scholz, a paralegal employed by the Presentment Agency, contacted the New York City Department of Juvenile Justice and the New York City Department of Corrections to learn whether the respondent was being detained in any of their facilities. Mr. Scholz was advised by both agencies that the respondent was not in their custody. On December 4, 1997, Mr. Scholz contacted the respondent's grandmother, Irene Crumb, who told him that respondent was residing with his mother, Felicia Crumb, at 239 Bainbridge Avenue, Brooklyn, New York. Irene Crumb also informed Mr. Scholz that the respondent's mother "did not have a telephone". On that same date, Mr. Scholz contacted Boys and Girls High School in Brooklyn, the last school respondent was known to have been attending. An Assistant Principal at the High School advised Mr. Scholz that "respondent was not registered with the school this year", and Mr. Scholz also "sent warrant letters" to respondent's mother, Boys and Girls High School, and the warrant officer assigned to New York County Family Court by the Police Department. On December 5, 1997, I signed "findings of fact" which essentially endorse the facts set forth in the Assistant Corporation Counsel's affirmation (see, Fam.Ct.Act § 312.2[2] ).

At the hearing, Mr. Scholz testified that the Assistant Corporation Counsel assigned to this case referred the file to him on December 2, 1997. According to Mr. Scholz, his duties were "to make telephone calls and contacts, and try to locate the respondent". Mr. Scholz also testified as to the efforts he undertook to locate respondent, and his testimony is consistent with the report previously submitted to the court by the Presentment Agency. Upon cross-examination, Mr. Scholz testified that after the Assistant Principal at Boys and Girls High School informed him that respondent was not attending the school this year, he did not contact the central Board of Education to ascertain whether the respondent was enrolled in another school. Mr. Scholz also stated that he did not check a telephone directory to ascertain whether, in fact, respondent's mother has no telephone. Mr. Scholz's testimony also indicates that he did not seek assistance from the Police Department Warrant Squad until December 4, 1997. Respondent's mother testified that on December 8, 1997 she learned from her mother that a warrant had been issued for her son by the Family Court, and that she brought him to court on December 10, 1997.

Where, as here, a respondent is not detained, the fact-finding hearing must be commenced not more than sixty days after the conclusion of the initial appearance, unless the proceedings are adjourned in accordance with Family Court Act § 340.1(4) (see, Fam.Ct.Act § 340.1[2]; Matter of Frank C., 70 N.Y.2d 408, 522 N.Y.S.2d 89, 516 N.E.2d 1203; Matter of Randy K., 77 N.Y.2d 398, 568 N.Y.S.2d 562, 570 N.E.2d 210; Matter of Nakia L., 81 N.Y.2d 898, 597 N.Y.S.2d 638, 613 N.E.2d 544; Matter of Willie E., 88 N.Y.2d 205, 644 N.Y.S.2d 130, 666 N.E.2d 1043; Matter of James T., 220 A.D.2d 352, 633 N.Y.S.2d 279).

In 1994, the Legislature added a new subdivision seven to section 340.1 of the Family Court Act (see, Laws of 1994, ch. 501) to address "warrant-abscondment-nonappearances at court scheduled dates" (Matter of Jamar A., 86 N.Y.2d 387, 392, 633 N.Y.S.2d 265, 657 N.E.2d 260). This amendment to article 3 provides "that if a warrant has been issued due to a respondent's failure to appear in court, the date of issuance of the warrant to the date respondent subsequently appears in court shall be excluded from the computation of the time within which the hearing must commence under section 340.1" (id., at 392, 633 N.Y.S.2d 265, 657 N.E.2d 260; see, Matter of E.F., 162 Misc.2d 597, 617 N.Y.S.2d 268). 4

Family Court Act § 340.1(7) reads as follows:

For purposes of this section, if a warrant for the respondent's arrest has been issued pursuant to section 312.2 of this article due to the respondent's failure to appear for a scheduled fact-finding hearing, computation of the time within which such hearing must take place shall exclude the period extending from the date of issuance of the bench warrant for respondent's arrest because of his or her failure to appear to the date the respondent subsequently appears in court pursuant to a bench warrant or appears voluntarily; provided, however, no period of time may be excluded hereunder unless the respondent's location cannot be determined by the exercise of due diligence or, if the respondent's location is known, his or her presence in court cannot be obtained by the exercise of due diligence. In determining whether due diligence has been exercised, the court shall consider, among other factors, the report presented to the court pursuant to subdivision two of section 312.2 of this article.

In this case, the petition was filed on September 26, 1997, and the initial appearance was concluded on that date as well. Because respondent was not detained, the fact-finding hearing should have commenced on or before November 25, 1997 (see, Fam.Ct.Act § 340.1[2] ). 5 An arrest warrant was issued for respondent on November 10, 1997, and he voluntarily appeared on December 10, 1997, which was the 75th day following September 26, 1997.

The Presentment Agency seeks to have the period from November 5, 1997 until December 10, 1997 excluded from the computation of the sixty-day speedy fact-finding period. The exclusion of these 35 days, or a portion thereof, requires a showing that: (1) respondent's location could not have been determined notwithstanding the exercise of due diligence; or (2) that although respondent's location was known, his presence could not be obtained by the exercise of due diligence (Fam.Ct.Act § 340.1[7]; Matter of E.F., 162 Misc.2d, at 602, 617 N.Y.S.2d 268, supra; Governor's Memorandum of Approval, McKinney's 1994 Session Laws, ch. 501, at 2978).

While the Family Court Act does not define the term "due diligence", it is apparent that this term was borrowed from Criminal Procedure Law § 30.30(4)(c)(i) (see, Memorandum of Office of Court Administration, McKinney's 1994 Session Laws, ch. 501, at 3299, supra). As noted by the Presentment Agency, "the question [of] whether the People have exercised [due] diligence in locating an individual is a mixed question of law and fact" (People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243), and it is also true that whether analyzed under Criminal Procedure Law § 30.30 or Family Court Act § 340.1, "a showing of diligent efforts to execute the bench warrant * * * is a prerequisite to the application of the statutory [time] exclusion" (id., at 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243; People v. Bolden, 81 N.Y.2d 146, 155, 597 N.Y.S.2d 270, 613 N.E.2d 145; Governor's Memorandum of Approval, McKinney's 1994 Session Laws, ch. 501, at 2978, supra). 6

Here, the record establishes that the Presentment Agency took no steps to enforce the arrest warrant between November 5, 1997 and December 2, 1997. It was not until December 2, 1997, that an Assistant Corporation Counsel assigned their case file to a paralegal on their staff to begin efforts to locate the respondent. There was no evidence that there was any administrative delay in transmitting the file and warrant to the paralegal. Because...

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